termination of an offer
what are the two judicial solutions to the flagpole problem?
1.construe the act as requiring bilateral action rather than unilateral action. 2.Imply a collateral arrangement that so long as the act was being performed, the offer was firm.
when and how can an offeror revoke an offer?
An offeror can revoke/withdraw an offer at any time before acceptance. Revocation must be communicated to the offeree by the offeror. Revocation is effective when communicated to the offeree; may be formal of informal.
can conditions be implied?
Condition can be implied in some instances. Eg, offer lapses if the state of affairs promised in the contract changes.
Dawson v. Helipcopter Exploration Co
Court implied bilateral action in the alleged unilateral action. The offeror was required to get a helicopter, and the offeree was required to show them the sites.
what is the flagpole problem?
In a unilateral contract, can an offer be revoked after the offeree has started but has yet to complete the requested act? YES.
Manchester Diocesan Council for Education v. Commercial & General Investments, [1970] 1 W.L.R. 241 (Ch.).
In dicta, he said unclear about why offer lapses within reasonable time: "First, it may be said that by implication the offer is made upon terms that, if it is not accepted within a reasonable time, it must be treated as withdrawn. Alternatively, it may be said that, if the offeree does not accept the offer within a reasonable time, he must be treated as having refused it."
what constitutes an offer/acceptance in the context of competing forms?
In exchanging conflicting forms, each successive form constitutes a rejection of the offer or counter-offer in the prior form of the other party
what is the effect of the death of the offeror on the offer?
Normally, the death of the offeror terminates power of acceptance, unless there was detrimental reliance on the con the offer, in which case the expectations of the offeree may be protected. (Waddams)
what is a determinable condition?
Offer is made subject to the continued existence of a condition or state of affairs.
what is the effect of a determinable condition?
Offer lapses if the condition ceases to exist (eg, the product is to stay in the same state it was in when the offer was made).
What is the effect of a condition subsequent?
Offer lapses if the condition occurs, or offer cannot be accepted after the specified condition has occurred.
Barrick v. Clark, [1950] 4 D.L.R. 529 (S.C.C.).
Offeror did not specify a time for acceptance, therefore reasonable time applies. Offeree did not accept within a reasonable time. The judge found that time for reasonable acceptance would be no longer than sale of a business.
what is a condition subsequent?
Offeror stipulates that her/his offer will lapse on the occurrence of a specified condition(s).
if there is no specified time for acceptance, how will the court determine the meaning of "reasonable time"?
Reasonable time is objectively determined by reference to: 1. Subject-matter of the transaction 2. Nature of the transaction 3. Customs and practice of the trade 4. Conduct of the parties in the course of negotiations 5. Mode of communication of the offer.
Errington v. Errington and Woods, [1962] 1 K.B. 290 (C.A.).
The father's promise was good so long as the act requested (payments) was being performed and therefore could not revoked. There was an express promise to the couple that the property would transfer if they made the payments, and an implied promse thtat so long as they made the payments, they could have possession.
Financings Ltd. v. Stimson, [1962] 3 All E.R. 386 (C.A.).
The offer was conditional on the car remaining in substantially the same condition until the moment of acceptance. The offeree could not accept because the contract lapsed the moment the car was damaged. Court implied the condition that the court remain in substantially the same state.
Dickinson v. Dodds (1876), 2 Ch. Div. 463 (C.A.).
The promise to keep the offer open was not binding because it was not bargained for. Therefore, the offeror was free to revoke at any time prior to acceptance. Also, the offeree has knowledge of revocation from mr. Berry. That is sufficient knowledge (doesn't need to come form the offeror).
Livingston v. Evans, [1925] 3 W.W.R. 543 (Alta. S.C.).
The rejection of a counter offer ends the offer, and the plaintiff's telegram was a counter offer, but the offeror revived the offer, and therefore Livingston bought the land.
Is there a way an offeree can prevent revocation?
The rule that a promise to hold open an offer for a specified time period is not binding unless: It is bargained for, or it is under seal.
Butler Machine Tool Co. Ltd. v. Ex-Cell-O Corporation (England) Ltd., [1979] 1 All E.R. 965 (C.A.).
When Butler signed the counter offer, that was acceptance and all previous forms were null and void. The contract was on the buyers terms, and not the sellers term.
what is informal revocation?
Where the offeree becomes aware indirectly that the offeror is no longer willing to stand by the offer/ has knowledge that the offeror has done some act inconsistent with the continuance of the offer.
Petterson v. Pattberg 248 N.Y. 86, 161 N.E. 428 (1928).
re unilateral contract: Any offer requesting the performance of an act may be withdrawn (revoked) before the act is performed. "until the act is performed, the offer is revocable". The offer was revoked. Note the dissent: 1.Offeror made performance impossible by refusing to accept the payment. 2.The Offeree had for all intents and purposes completed the act. He had the intention and ability to perform.
is a counter offer rejection of the offer?
yes