Essay: Offer and acceptance law problem question/scenario

Introduction
In the case given, Harriet is attempting to sue Gerald on the basis that there is no valid contract between them. To ascertain whether her claim has any basis in fact, we must analyse whether there has been a definite offer by Gerald, and an equally definite acceptance of that offer by Harriet.
Offer
Generally, advertisements are seen as invitations to treats, not offers. This was ascertained in the case of Partridge v Crittenden. However, where the advertisement clearly states that the goods will be sold to a person who pays the required price, it is likely to be held to be an offer. In the case of Gerald and Harriet, Gerald’s advertisement to sell his BMW was specific in that it stated that the BMW would be sold for £35,000 to the first buyer. This differentiates it from advertisements in which goods are merely displayed with their prices– the terms Gerald states are clear that the car would be sold to the first buyer who paid the required price.
Acceptance
If we have accepted that Gerald’s advertisement is an offer, we must now look to Harriet’s reply and whether that is sufficient acceptance. Acceptance must be unconditional and match the terms of the offer exactly (the ‘mirror image’ rule). We must distinguish between an absolute acceptance and a counter offer, keeping in mind that the latter effectively extinguishes the original offer (precedent in Hyde v Wrench).
We must consider Harriet’s reply. She texts that she will ‘definitely buy the car’, which we can consider as sufficient intent to create legal relations. However, she adds a question: whether Gerald might perhaps consider extending the date for payment by a few days.
Now, Harriet’s wording here is important. If a reply to an offer introduces new, different terms not included in the original offer, this will be considered a counter-offer. This was proven in the case of Jones v Daniel, wherein in a letter accepting the offer Jones introduced new terms relating to the date of completion, amongst others. If Harriet had stated that she would accept the offer only if the deadline was extended to the 7th of November, for example, this would have been a counter-offer and not acceptance.
However, she asks if Gerald would perhaps consider extending the date. Inquiring whether the offeror will modify his terms does not necessarily amount to a counter-offer. The legal basis for this is shown in Stevenson, Jacques & Co v McLean: the plaintiffs could still accept the offer of the defendants because they had telegraphed requesting information as to certain possible terms of credit. Therefore it can be argued that Harriet’s text is sufficient acceptance.
Communication of Acceptance
If the wording of Harriet’s text is sufficient acceptance, we must now look to Harriet’s communication of it. There has to be clear communication to the offeror that their offer is accepted. Harriet chooses to text Gerald her acceptance of the offer. Gerald does not check his texts, does not receive her communication, and sells the car to someone else.
The rule for non-instantaneous methods of communication, such as post, is that acceptance is communicated as soon as the letter is posted (the ‘postal rule’, laid down in Adams v Lindsell). However in Entores v Miles Far East, Denning LJ held that for instantaneous methods of acceptance, acceptance occurs when and where the message of acceptance is received.
It may be reasonably assumed that Gerald has received the texts, but has not read them. Is, then, a contract formed?
There is evidence in Gerald’s favour to prove there is no contract. In Brinkibon Ltd v Stahag Stahl, the judgment specifies that acceptance is effective when and where it is actually brought to the attention of the offeror. In Entores, Lord Denning specified that if “the offeror without a fault on his part does not receive the message of acceptance […] then I think there is no contract.”
However, Harriet may still have a case. Lord Fraser addressed this in Brinkibon stating that “once the message was received […] it is not unreasonable to treat it as delivered […] the responsibility was on the person to arrange for prompt handling of messages in his own office.”
It has also been suggested that acceptance will only take effect when it would have been reasonable for the offeror to check their messages. If Harriet’s texts could have been reasonably read by Gerald before he sold the car, she might be able to sue for breach of contract. Harriet may argue that it is unreasonable for Gerald not to check his phone when he has specified it as the device with which to communicate with him, and in fact that it is his responsibility to.
Prescribed Mode of Acceptance
There is also the question of whether Harriet chose the correct mode of acceptance. In the advertisement, it is stated ‘Please telephone’, and a phone number was given. In Manchester Diocesan Council for Education v Commercial & General Investments Ltd it is held that an offeror who insists on the mode of acceptance being in a particular manner is entitled to say he is not bound unless the acceptance is communicated in that particular way. In this way, if Gerald argues that he specified only telephone calls, then there could be a case to be made that the acceptance is not viable.
However, are telephone calls the only method allowed in this scenario? Tinn v Hoffman appears to provide an argument in Harriet’s favour: the court held that while post had been indicated in the offer, another equally fast method would have been successful, such as a telegram. If Harriet had replied, for example, by sending a letter to Gerald’s business address, that would not have been a method as ‘equally fast’ as a call; however, she answered through text, another instantaneous method of communication, therefore an equally effective mode. An argument could be made that her acceptance would have been binding.
Conclusion
Gerald’s advertisement can be regarded as an offer, not an invitation to treat. There is intent to create legal relations on both parties, as well as consideration. Harriet’s answer to the advertisement can be interpreted as acceptance with a request for information, as she has not stated that she will vary the original terms. Her method of communication is instantaneous, therefore the contract is formed only when Gerald would have received it. Harriet may be able to sue for breach of contract depending on if he could have reasonably checked his texts before he sold the car. I would advise Gerald to argue that he the acceptance was never communicated effectively, and the onus would be on the offeree to ensure it was brought to his attention. Gerald specified ‘telephone please’ in his advertisement, prescribing a mode of acceptance, so he should argue that there is no contract; however Harriet may be able to counter this with the fact that text is an equally fast mode of communication.