INVITATION TO OFFER

An invitation to offer/treat (or invitation to bargain in the United States) is a concept

within contract law. In Andrew Burrows' words, an invitation to treat is
"...an expression of willingness to negotiate. A person making an invitation to treat does
not intend to be bound as soon as it is accepted by the person to whom the statement is
addressed.”1

A supply of information is a statement that merely provides information for the other
party and is not intended to be acted upon.

Harvey v Facey
Facts:
Harvey sent a telegraph enquiring, "will you sell us Bumer Hall Pen? telegraph lowest
cash price". Facey replied, "lowest price for Bumper Hall Pen 900" to which Harvey
replied, "we agree to buy Bumper Hall Pen for the sum of 900 asked by you".

Held:
The Privy Council held that there was no contract concluded between the parties. Facey
had not directly answered the first question as to whether they would sell and the lowest
price stated was merely responding to a request for information not an offer. There was
thus no evidence of an intention that the telegram sent by Facey was to be an offer.2

Types of invitation to treat

The common types of invitation to treat are as follows:

1. Display of goods
Displays of priced goods are not offers; they are only invitations to treat. An offer is

1 https://en.wikipedia.org/wiki/Invitation_to_treat
2 http://www.e-lawresources.co.uk/Harvey-v-Facey.php

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 created when the customer presents the item to the cashier together with payment.
Acceptance occurs at the point the cashier takes payment.3
Fisher v Bell [1961]
Facts:
The defendant had a flick knife displayed in his shop window with a price tag on it.
Statute made it a criminal offence to 'offer' such flick knives for sale.

Held:
Its was held that it is not illegal. A product displayed in a shop is an invitation to treat
only and therefore has no contractual significance in the shopping process.

Pharmaceutical Society of Great Britain v Boots [1953] 1 QB 401 Court

of Appeal
Facts:
Boots introduced the then new self service system into their shops whereby customers
would pick up goods from the shelf put them in their basket and then take them to the
cash till to pay. The Pharmaceutical Society of Great Britain brought an action to
determine the legality of the system with regard to the sale of pharmaceutical products
which were required by law to be sold in the presence of a pharmacist. The court thus
needed to determine where the contract came into existence.

Held:
Goods on the shelf constitute an invitation to treat not an offer. A customer takes the
goods to the till and makes an offer to purchase. The shop assistant then chooses whether
to accept the offer. The contract is therefore concluded at the till in the presence of a
pharmacist

2. Advertisements
An advertisement can define as a promotion of goods and services publicly.
Advertisement can either be an offer or invitation to treat. Whether an advertisement is an
offer or an invitation to treat, it is based on the intention of the parties in each case.

3 http://www.academia.edu/6894944/Invitation_to_treat

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However, most of the advertisements are invitation to treat.4 the basic purpose of
advertisements are to make people aware that these goods are available for sales or in
other words an advertisement is an attempt to receive offer (s).
An advertisement of bilateral contract is an invitation to treat but no offer as in the case of
Partridge v Crittenden.

Partridge v Crittenden (1968) 2 All ER 421

Facts:
The defendant placed an advert in a classified section of a magazine offering some
bramble finches for sale. S.6 of the Protection of Birds Act 1954 made it an offence to
offer such birds for sale. He was charged and convicted of the offence and appealed
against his conviction.

Held:

The defendant's conviction was quashed. The advert was an invitation to treat not an
offer. The literal rule of statutory interpretation was applied.

An advertisement of unilateral contract is construed to be an offer. This principal was

upheld in the case of Carlill v Carbolic Smoke Ball Co.

Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 Court of Appeal


Facts:
A Newspaper advert placed by the defendant stated:-



£100 reward will be paid by the Carbolic Smoke Ball Company to any person who
contracts the influenza after having used the ball three times daily for two weeks
according to the printed directions supplied with each ball...

£1000 is deposited with the Alliance Bank, shewing our sincerity in the matter."


4https://www.lawteacher.net/free-law-essays/contract-law/display-of-goods-and-
advertisement-contract-law-essay.php

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Mrs Carlill purchased some smoke balls and used them according to the directions and
caught flu. She sought to claim the stated £100 reward.


Held:

The Court of Appeal held that Mrs Carlill was entitled to the reward as the advert
constituted an offer of a unilateral contract which she had accepted by performing the
conditions stated in the offer. The court rejected all the arguments put forward by the
defendants.

Lefkowitz v. Great Minneapolis Surplus Store

Facts
Lefkowitz was the first person at the store and wanted the black lapin stole for $1.00.
Store refused to sell him the stole because of a store policy that it could only sell to
females. Defendant claims that it was modified by a “house rule” that only females could
buy the products. Advertisement contained no such restrictions. Lefkowitz sued the store.

Held
Lefkowitz was awarded $138.50 for damages. Store appealed and lost. The court held that
the advertisement constitute an offer, and plaintiff’s actions show an acceptance. The
offer was clear, definite and explicit. It left nothing open for negotiation, it constitutes an
offer. No restrictions for only women in advertisement, “has the right at anytime before
acceptance to modify his offer, he does not have the right, after acceptance, to impose
new or arbitrary conditions not contained in the published offer.

3. Auctions
Where an auction takes place with reserve, the bid itself is an offer by the bidder which
can either be accepted or rejected by the event organizer (auctioneer). Not only this but
the offer made can be withdrawn any time before the acceptance by the auctioneer.

Harris v Nickerson
Facts:
The defendant advertised that an auction of certain goods would take place at a stated
time and place. The plaintiff travelled to the auction only to find that items that he was

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interested in had been withdrawn. He claimed compensation for breach of contract,
arguing that the advertisement constituted an offer, and his travelling to the auction, an
acceptance by conduct.
Held:
The advertisement was not an offer, merely a declaration of intention.

Barry v Davies
Facts:
The auctioneer withdrew goods from an auction (the goods had no reserve price) when
a bona fide bid of £200 was effective. The court held that an auctioneer is bound to sell to
the highest bidder where there is no reserve price, and can't withdraw the sale simply
because the price is too low. A bid in an auction, the possibility of acceptance of the bid,
unless the bid is withdrawn, and the benefit to the auctioneer of driving up the price bid is
sufficient consideration. The contract in an auction is between the buyer and the seller,
not the buyer and the auctioneer, although the buyer has a collateral agreement with the
auctioneer.
Held:
The remedy is the difference between the contract value, and the current market value of
the goods under the Sale of Goods Act 1979 s51(3). The value in this case was £27,600.5

4. Tenders
A tender is an estimate given in response to a request. An invitation for tenders is an
invitation to treat - it is not an offer to use the person quoting the
lowest price.

Harvela Investments v Royal Trust of Canada [1985]

Facts
The claimants submitted a fixed price bid for shares in the defendant’s company. Another
party made a referential bid; of a fixed amount more than any other offers.

5 https://en.wikipedia.org/wiki/Barry_v_Davies

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Held
Such a referential bid could not be allowed. As the defendants were bound to accept the
highest bid, the referential bid did not have a fixed amount attached to it and as such
could not be accepted or even submitted.

Blackpool & Flyde Aero Club v Blackpool Borough Council

Court of Appeal [1990] 3 All ER 25
Facts
Blackpool Borough Council (the Council) invited tenders for certain flights, to be
submitted in an envelope provided by the Council by a stipulated date. The Aero Club
submitted by the due date, but an error by the Council recorded it as received late and the
tender was not considered. The Aero Club alleged breach of contract, they claimed the
Council had promised to consider all tenders submitted by the due date.

Held (Bingham LJ)

Because of the ‘considerable labour and expense’ that may be involved in preparing a
tender then, at least where invitations to tender are provided to selected parties with clear
procedures (as in this case) then, if the invitee submits a conforming tender ‘he is entitled
to be sure that his tender will be opened and considered’. To this extent, the invitation to
tender constituted an offer which was accepted when the Aero Club made a timely
submission.

5. Time Tables and Automated Machines

The machine represents the offer, the acceptance is inserting the money.6

Wilkie v London Passenger Transport Board

Court of Appeal01 January 1947
Facts:
The action of an intending passenger in boarding an omnibus is something done not by
virtue of a contract but by virtue of the implied licence given him by the bus company to
get to the position where he may make a contract with the company.A person holding a
free travelling pass boards a bus as a pass-holder. The plaintiff, a person holding a free
travelling pass, was injured by the negligence of the bus company by being thrown on to
the ground in the act of boarding the bus. The pass contained a condition exempting the
company from liability for injury however caused. The plaintiff contended that the
condition did not come into operation until he was being conveyed as a passenger is
conveyed.

Held:
The condition covered the case.The plaintiff further contended that the pass constituted a
contract of conveyance and that the condition there was rendered void by s.97 of the Road

6 http://e-lawresources.co.uk/Offer-and-acceptance-contract.php

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Traffic Act, 1930(20 &21 Geo. 5, c. 43). Held, the pass was merely a revocable licence
without contractual effect and s.97 of the Road Traffic Act, 1930, did not apply there.7

Thornton v Shoe Lane Parking [1971] 2 WLR 585 Court of Appeal

Facts:
The claimant was injured in a car park partly due to the defendant's negligence. The
claimant was given a ticket on entering the car park after putting money into a machine.
The ticket stated the contract of parking was subject to terms and conditions which were
displayed on the inside of the car park. One of the terms excluded liability for personal
injuries arising through negligence. The question for the court was whether the term was
incorporated into the contract ie had the defendant brought it to the attention of the
claimant before or at the time the contract was made. This question depended upon where
the offer and acceptance took place in relation to the machine.

Held:
The machine itself constituted the offer. The acceptance was by putting the money into
the machine. The ticket was dispensed after the acceptance took place and therefore the
clause was not incorporated into the contract.

Bibliography
https://en.wikipedia.org/wiki/Invitation_to_treat
http://www.e-lawresources.co.uk/Harvey-v-Facey.php

7https://www.scribd.com/doc/190674297/Wilkie-v-London-Passenger-Transport-Board-Case-
Digest

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http://www.academia.edu/6894944/Invitation_to_treat
https://www.lawteacher.net/free-law-essays/contract-law/display-of-goods-and-
advertisement-contract-law-essay.php
http://www.e-lawresources.co.uk/Fisher-v-Bell.php
https://webstroke.co.uk/law/cases/fisher-v-bell-1961
http://www.e-lawresources.co.uk/Pharmaceutical-Society-of-Great-Britain-v-Boots.php
http://casebrief.me/casebriefs/pharmaceutical-society-of-gb-v-boots-cash/
http://www.e-lawresources.co.uk/Partridge-v-Crittenden.php
http://casebrief.me/casebriefs/partridge-v-crittenden/
http://www.e-lawresources.co.uk/Carlill-v-Carbolic-Smoke-Ball-Co.php
http://www.casebriefsummary.com/lefkowitz-v-great-minneapolis-surplus-store/
http://netk.net.au/Contract/Harris.asp
https://en.wikipedia.org/wiki/Barry_v_Davies
https://webstroke.co.uk/law/cases/barry-v-davies-2001
https://webstroke.co.uk/law/cases/harvela-investments-v-royal-trust-of-canada-1985
https://www.australiancontractlaw.com/cases/blackpool.html
https://www.scribd.com/doc/190674297/Wilkie-v-London-Passenger-Transport-Board-
Case-Digest
http://www.e-lawresources.co.uk/Thornton-v-Shoe-Lane-Parking.php