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Essay: Law assignment – offers and invitations to treat

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  • Published: 16 February 2017*
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During the launch of Speedy Health Gyms Winter programme, the owner of the gym advertises that if anyone who can complete the 2km on their new water rower in less than seven minutes they will get a year’s free membership to the gym. Speedy Health Gym is a state of the art facility who has recently just installed new pieces of equipment including cross trainers, strength equipment along with two water rowers.
My brother John on seeing this advertisement outside the gym, completes this challenge under the required time. He tried to claim his free membership which is a price of usually  1,500 and thereupon is met by the owner telling him that he had since replaced the first notice cancelling the promotion and therefore he wouldn’t be giving away any free memberships. Here we are dealing with an express promise of free membership in certain events. My brother John was entitled to the reward.
This is a case of contract law as an agreement has been made between two parties and there is an exchange of a service. It is also an example of a unilateral contract, where the offeror promises something in return for the offeree to perform an act and where the right of communication of acceptance is waived( http://www.lawteacher.net/free-law-essays/contract-law/public-advertisements-do-not-constitute-an-offer-contract-law-essay.php) Anytime an individual, business or any other entity agrees to take action, or to make an exchange or payment for something of value, a contract has been created. An effective contract includes offer and acceptance, certainty, consideration (something of value) and intention to enter into a legal commitment. (Business Contracts Handbook, Charles Boundy, Jan 2010). The offer and acceptance did match up so therefore the contract is binding. The advertisement was an offer to the world. It is said that it is not made with anybody in particular. In point of law this advertisement is an offer of the free membership to anybody who will perform these conditions, and the performance of the conditions is the acceptance of the offer. Law is all around us in our day-to-day lives, and often we are not aware of its presence. For example public transport  every ticket bought on a bus or a train forms a contract. This is a contract of services and the majority of terms will be implied rather than express.
There is a case very similar to my brothers it called Carlill vs. Carbolic Smoke Ball Co. The seller of smokeballs promised to pay 100 to any person who contracted the influenza, colds, or any disease caused by taking a cold after using the smoke balls as directed in the instructions. There is evidence to suggest that the seller had no intention of ever paying the reward. Consequently, A & K would like to see this case treated as a case of promissory fraud. Their reasoning appears to be that imposing liability for promissory fraud would discourage sellers such as Carbolic Smoke Ball Co. from inducing customers to rely upon promises that they actually intend not to perform. This argument is curious; however, in light of the fact that the court famously held that Carbolic Smoke Ball Co. was liable to Carlill for breach of contract. (New York University Law and Economics Research Paper, Kevin E. Davis, 2004) An actual breach occurs when one party to the agreement fails or refuses to honor his part of, or complete his duties under, the contract. This breach of contract is what makes this case so similar to my Brother John’s case. A breach of contract is a failure by one party to a contract to perform the obligations as detailed in the contract (www. Nolo.com, breach of contracts, 2016) A statement that a contractor any of its clauses will be breached in the future is called a repudiation breach or an anticipatory breach. (The AMA Dictionary of Business and Management, George Thomas, 2013)
It is also an example of tort law as torts are something that is wrong that have been done by one party against another. A tort is any wrongful act, other than a breach of contract, for which a civil lawsuit may be brought by a private person. (Economic Structure of Law, William M. Landes, 1987) Torts can shift the burden of loss from the one party to the party who is at fault or better suited to bear the burden of the loss. Typically, a party seeking redress through tort law will ask for damages in the form of monetary compensation. Less common remedies include injunction and restitution. (Wex Legal Dictionary, www.law.cornell.edu)
Even though my brother is in the right Speedy Health Gym could come back and say these following things. I am covering these points so we have all the information that the owner could come back to us with.
There was no acceptance of the offer from the gym; it was not clear that the party to whom made the offer that John was going to perform this task. (www.inbrief.co.uk, Contract Law) The acceptance must be communicated to the offeror. A contractual acceptance has to be a final and unqualified expression of assent to the terms of the offer per Black J in Day Morris Associates v Voyce [2003] EWCA Civ 189 at para 35.
It also was an invitation to treat, which is an invitation to make an offer, you might think it’s an offer but it’s not! (Collin Collins, Notes, Contract Law, 2016) An Advertisement can be either being an offer or an invitation to treat (www. Lawteacher.net, Contract Law). An offer is a definite promise to be bound provided that certain terms are to be accepted. The Contracts Act 1950 uses the term proposal but it has the same meaning as an offer. Advertisements of bilateral contract are usually not offers. A bilateral contract is when the outstanding obligation remains on both sides which an offeror makes a promise in return for a promise by the offeree. (Sharon Ann, Academia.edu, Contract Law)
For example, in Partridge v Crittenden (1968) it illustrates the general rule that advertisements are normally regarded as an invitation to treat. In this case, the appellant advertised in a magazine Quality British A.B.C.R bramblefinch cocks, bramblefinch hens, 25s. Each under the column of Classified Advertisements and there was no words of offers for sale to be found. The respondent answered the advertisement and issued a cheque for 30s to the appellant. The issue was whether the advertisement was an invitation to treat of an offer for sale. The court held that the advertisement was not an offer, but only an invitation to treat. Ashworth J stated that,  in regard to articles in a shop window, namely that the insertion of an advertisement in the form adopted here under the title Classified Advertisements is simply an invitation to treat.
I would advise my brother John to approach a solicitor with the following information I have provided.
 

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