Lecture 3

Business Law & Legal Issues in Tourism

THM- 215
OFFER AND ACCEPTANCE
 DEFINITIONS
Formation of Contract
All contracts are made by the process· of a lawful offer by one party and the lawful
acceptance of the offer by the other party. X says to Y. "Will you buy my house for Rs
50.000?“ This is an offer. If Y says, "Yes", the offer is accepted and a contract is formed.
Proposal : An "offer" involves the making of a "proposal".
Offer: A proposal is also called an offer. The promisor or the person making the offer
is called the offeror. The person to whom the offer is made is called the offeree.
 DEFINITIONS
Promise and Acceptance
"When the person to whom the proposal is made signifies his assent thereto. the
proposal is said to be accepted. A proposal when accepted becomes a promise."-Sec.
2(b).
"The person making the proposal is called the 'promisor‘ and the person
accepting the proposal is called the 'promisee'.“ -Sec. 2(c).
Example of offer and acceptance :
(i) Specific Offer : X offers to sell his motor car to Y at the price of Rs. 5000. This is a
proposal. X is the promisor or the offeror. Y is the offeree. If Y agrees to buy the car at
the price stated; Y becomes the promisee or tlie acceptor. There is a contract.
 DEFINITIONS
Example of offer and acceptance :
(iii) General Offer: A transport company runs tramway cars along the streets. This is
an offer by the company to carry passengers al the scheduled fares. The offer is
accepted when a passenger gets up on a tram with the intention of becoming a
passenger.
 OFFER: Rules regarding offer
I. An offer may be express or may be implied from the circumstances : An
offer may be made in two ways : (i) by words, spoken or written and (ii) by conduct.
When an offer is made by stating so in words or in writing, it is called an Express
offer. When an offer is implied from the conduct of a person, it is called an Implied
offer.
2. An offer may be made to a definite person; to some definite class of
persons; or to the world at large : An offer made to a definite person or a definite
class of person is called a Specific offer. An offer sent to all persons (or the world at
large) is called a General offer.
 OFFER: Rules regarding offer
3. Legal relationship is required: The offer must be one which is capable of
creating a legal relationship. A social party Or an invitation to play cards is not a
legal relationship.
4. The terms of the offer must be certain, definite, unambiguous and not
vague: X says to Y, "I will give some money if you marry Z ". This is not an offer
which can be accepted because the amount of money to be paid is not certain.
5. A mere statement of intention is not an offer : A distinction is usually made,
between an "offer" and "a statement of intention".
Examples:
(i) Intention to sell: A table on an article in a shopkeeperss showcase stating 'price
Rs. 5' is considered to be the expression of an intention to sell the article at Rs 5.
 OFFER: Rules regarding offer
(ii) Quotation of prices: A quotation of prices is not an offer, but an invitation
for offers.
(iii) Advertisements : A newspaper advertisement inviting applications for a job
or inviting tenders for some work is not an offer.
(iv) Catalogue: A banker's catalogue of charges is not an offer.
(v) Time-table : A railway time-table is not an offer.
(vi) Question and Reply: H telegraphed to F asking the latter to inform him
whether he would sell Bumper Hall Pen and if so at what price. F informed H that the
lowest price was £900 but did not say that he was willing to sell at that price.
(vii) Auction : When particular goods are advertised for sale by auction the
auctioneer does not contract anyone who attends the sale intending to purchase
those goods that they shall be actually put up for sale.
 OFFER: Rules regarding offer
6. An offer must be communicated to the offeree: A person cannot accept an
offer unless he knows of the existence of the offer. P offers a reward to anyone who
returns his lost dog. Q finding the dog brings it to P without having heard of the offer.
Held, he was not entitled to the reward.
7. An offer may be conditional: An offer may be made subject to conditions. In
such cases, the conditions must be clearly communicated to the offeree.
8. Printed Contracts: Printed Contracts (or Standard Forms of Contracts) often
contain a large number of terms and conditions which exclude liability under the
contract. For examples. the Life Insurance Corporation of India, the Railway
Administration, Statutory Corporation and big companies issue printed forms of
contract. The individual is bound to sign them , whether he likes the terms or not.
 ACCEPTANCE
Who can accept?
An offer can be accepted only by the person or persons for whom the offer is
intended. A
n offer made to a particular person can only be accepted by him because he is
the only person intended to accept.
An offer made to a class of persons can be accepted by any member of that
class.
An offer made to the world at large can be accepted by any person whatsoever.
 Rules regarding acceptance
Requirements
I. It must be an absolute and unqualified acceptance of all the terms of
the offer.-Sec 7( I). If there is any variation, even on an unimportant point,
between the terms of the offer and the terms of the acceptance, there is no
contract.
Example: (i) AI offered land to N at £280. N replied accepting and enclosing,
£80, and promising to pay the balance by monthly installments of £50. Held,
there was no contract, as there was no unqualified acceptance.
 Rules regarding acceptance
2. Conditional Acceptance: In accordance with English law as well as with the
terms of the Contract Act, an acceptance with a variation is no acceptance; it is
simply a counter-proposal. which must be accepted by the original promisor
before a contract is made.
Examples: X offered to sell his house for Rs. 12,00q. Y said, "accepted for Rs.
10,000." This is not an acceptance but a counter offer or counter proposal.
3. Contracts subject to condition : There are cases where an "immediate binding
contract is formed although some of the parties' rights and obligations may be
dependent upon the happening of a particular event. For example, the
agreement may contain such a term as 'subject to the purchaser's solicitors
approving the title."
 Rules regarding acceptance
4. Clarification : The seeking clarification of offer neither amounts to the
acceptance of the offer nor to the making of a counter offer.
5. The acceptance· must be expressed in some usual or reasonable manlier :-Sec
7(2). The offeree may express his acceptance by word of mouth, telephone,
telegram or by post.
Examples:
(i) Oral or by writing. P offers to buy Q's bicycle at Rs. 50.. Q may accept this
offer by stating so orally or through telephone or by writing a letter or by
sending a telegram to that effect.
 Rules regarding acceptance
6. Mental acceptance or uncommunicated assent does not result in a contract: No
contract is formed if the offeree remains silent and does nothing to show that he
has accepted the offer.
Example: (i) F offered to buy B s horse for £30, saying, "If I hear no more about
him I shall consider the horse as mine at £30." B did not reply. Held, there was no
contract because there was no communication of acceptance. Mental
acceptance or uncommunicated assent does not result in a contract.
7. The mode of acceptance: Where the promisor prescribes a particular mode of
acceptance, the offeree must follow the partiClrlar mode of acceptance. For
example, 'if the offeror says, "acceptance to be sent by telegram", the offeree
must send a telegram.
 Rules regarding acceptance
8. Time of Acceptance: (It the offeror prescribes a time, the acceptance must be
done within that time. If no time is prescribed the acceptance must be done
within reasonable time.
9. When acceptance is complete : For example, (i) A proposes, by letter, to sell a
house to B at a certain price. The communication of the proposal is complete
when B receives the letter.
10. Before Offer: There cannot be acceptance (no one can accept anything) before
the offer is given from any person.
II. The acceptance must be made while the offer is in force. i. e .. before the offer
has been revoked or the offer has lapsed.
 Revocation of an Offer. When does an
Offer Lapse?
1. By notice
If the offeror gives notice of revocation to the other party, i,e., expressly
withdraws the offer, and the offer comes to an end, An offer may be revoked any
time before acceptance but not afterwards. Once an offer is accepted there is a
binding Contract.
Example: A proposal is sent by X to Y and is accepted by Y by letter. The proposal
might have been revoked any time before the letter of acceptance was posted but
it cannot be revoked after the letter is posted.
2. By lapse of time: When the proposer prescribes a time within which the
proposal must be accepted, the proposal lapses as soon as the time expires.
 Revocation of an Offer. When does an
Offer Lapse?
3. After expiry of reasonable time: If no time has been prescribed, the proposal
lapses after the expiry of a reasonable time, What is reasonable time will depend on
the circumstances of the case,
Example:On 8th June, M offered to take shares in R company, He received a letter of
allotment on 23rd November, M refused to take the shares, Held, M was entitled to
refuse as the offer had lapsed by the delay in acceptance.
4. By failure of a condition precedent: An offer lapses by the failure of the acceptor
to fulfill a condition precedent to acceptance, where such a condition has been
prescribed.
Example: P says to Q. "I will sell my house at Delhi to you for Rs. 50,000 if you are
married." The offer cannot be accepted until and unless Q is married.
 Revocation of an Offer. When does an
Offer Lapse?
5. By death or insanity: An offer lapses by the death or insanity of the proposer, if
the fact of his death or insanity comes to the knowledge of the acceptor before
acceptance.
6. Counter Offer: When a counter offer is given, the original offer lapse.
7. By refusal: A proposal once refused is dead and cannot be revived butits
subsequent acceptance.
Example:
A offers to sell his farm to B for Rs. 1,000. B replies offering to pay Rs. 950. A refuses.
Subsequently B writes accepting the original offer. There is no contract because the
original offer has lapsed.
 Revocation of Acceptance
Section 5 of the Contract Act provides that an acceptance can be revoked any time
before the acceptance comes to the knowledge of the proposer but not afterwards.
Example: .
P proposes, by a letter sent by post, to sell his house to Q. Q accepts the proposal by
a letter sent by post. Q may revoke his acceptance any .time before the letter
communicating it reaches P but not afterwards.
The English law on this point is different. Under English law an acceptance is
irrevocable once it is put in course of communication to the offeror. Thus in the
above example Q could not have revoked the acceptance once he had posted the
letter of acceptance.