Chapter 1 Key debates

Agreement

Typical essay question issues on agreement might include:

1.    How the existence of agreement is determined. This involves examining the meaning of objectivity in this context (see Poole, Textbook on Contract Law, 14th edn (Oxford University Press, 2019), 2.1) and the external evidence used to determine the existence of agreement, i.e. offer and acceptance (traditional and technical approach) and the non-traditional methods such as that employed by Lord Denning MR in Butler Machine Tool Co. Ltd v Ex-Cell-O Corporation (England) Ltd, in GHSP Inc. v AB Electronic Ltd (2010), and by the majority of the CA in Gibson v Manchester City Council (1978). It also appears that the courts will find it easier to find the existence of agreement where there has been performance: Trentham Ltd v Archital Luxfer (1993) per Steyn LJ (see Poole, Textbook, 3.1.3.3).

2.    The use of the two-contract analysis in order to create a unilateral contract based on a particular promise and thereby impose pre-contractual liability (discussed pp. 23-25, ‘The two-contract analysis’).

3.    Difficulties inherent in the analysis of the silence principle in Felthouse v Bindley (see Miller (1972) 35 MLR 489 and discussion in Poole, Textbook, 2.4.5.1.1) and exceptions where silence can constitute acceptance. Exceptions where silence can constitute acceptance in bilateral context include where:

•   a course of dealing exists between the parties and the offeree has taken the benefit of services (e.g. window cleaning or insurance policy renewals);

•   the offeree is seeking to hold the offeror to a silence stipulation made by the offeror, e.g. if the nephew in Felthouse v Bindley had acted on the uncle’s statement and delivered the horse but the uncle had refused to take delivery of it;

•   the offeree was responsible for the silence stipulation in the contract, i.e. for the statement that the offeree’s silence would constitute acceptance.

4.    Critique of the communication principles, especially in the e-commerce age. This may involve issues such as the relevance and scope of application of the postal rule of acceptance, non-instantaneous communications, etc.

Final point to note: always be guided by the emphasis placed in your particular module on the issues within this topic but bear in mind the practical fact noted at the outset: agreement lends itself to the setting and answering of problem-style questions.

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