All entries for Tuesday 02 November 2010

November 02, 2010

Week 4 – Offers and Acceptance in shops – When lawyers go window shopping

In terms of offer and acceptance in contract law, shops and window displays pose an interesting set of issues – which are notably divergent across European jurisdictions.

French law sees the display of goods as a full offer – which has been construed widely across supermarkets, stores and self-service businesses. Malaurie highlights how drivers parked in taxi ranks have been held to been making an offer, reflecting the low threshold for this status. The Cour d’appel also stressed this in the case of Mme Dehen’s exploding lemonade bottle, where the victim of faulty goods was held to have a contract after placing the object in her basket – and not before paying.

Such a construction of an offer would not be well-received by English lawyers. The French situation is seen as preventing the contracting parties from changing their minds, or the chance to substitute an item with another. English case law such as Boots here indicates that, instead of the French conceptualisation, the item on a shelf is an invitation to treat (invitatio ad offerendum). No contract is therefore concluded when a customer takes the goods from the shelf under English law. Were Mme Dehen to live in England, it might have been the case that she was not able to seek redress through contract law for her exploding lemonade bottle.

German law seemingly has no authority on this subject, but academic debate has tended to hint at being closer to English law, backed up by the possibility of changing one’s mind. Emphasis has also been placed in German law on securing the creditor’s right to refuse to conclude a contract.

A closer inspection of offer and acceptance shows differences between the precise technicalities – but a question remains as to their actual significance. Why do we really need to differentiate so much in this field? Indeed, either way, by the time the party has left the business, the contract has been completed - and for those that don't make it out of the shop (such as Mme Dehen’s, perhaps) a solution in tort law could be viable. However, the case of Fisher v Bell reflects the importance of terminology in this area – with the seller of a prohibited item escaping criminal sanction, as he was providing it as an invitation to treat and not as a full offer. Under French law, he might have been less fortunate: illustrating the importance of the nuanced definitions in this area.


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Links Used

EU Consumer Protection:
http://ec.europa.eu/consumers/rights/gen_rights_en.htm

Notices and Other Communications under UNCITRAL:
http://kluwerconstructionblog.com/2010/08/30/updating-the-uncitral-arbitration-rules/

The Right of Withdrawal and Unfair Contract Terms:
http://www.casebooks.eu/consumerLaw/chapter4/

Law Society speaks out on EU consumer contract law:
http://international.lawsociety.org.uk/node/5794

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