Offer And Acceaptance On A Website
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The distinction between an offer and an invitation to treat is often hard to draw as it depends on the elusive criterion of intention. However the distinction between the two can often be misleading and ultimately misinterpreted. When misinterpretations and complications occur then it is down to the courts to decide and to distinguish between the two terms.This paper will determine the importance of a distinction between an offer and an invitation to treat and using case law and relevant legislation distinguish between the two. The essay will then outline the main characteristics and what qualifies as an offer from the point of view of legislation and the courts applying these principles to an advertisement on a website. The same structure will be applied in the case of an invitation to treat.
In case the ordinary laying out of goods would be considered to be an invitation to make an offer, the refusal to accept the order would not constitute the breach of sellers contractual obligations, because the contract was not concluded. Otherwise without having real possibilities to evaluate the demands of the product the seller would be put in a great risk. It is therefore important that websites are constructed so that it presents Ðan invitation to treat rather than an offer so that the customer is offering to buy goods, rather than you offering to sell them. This gives the seller full control over the contractual process, and they are not legally obliged to satisfy each offer that may be made for the items or services you are advertising. This will protect them from risks such as entering into contracts that you physically cannot fulfil entering into illegal contracts, such as with minors below the appropriate age, to purchase the goods advertised and being forced to supply goods which have been under priced on the website in error. Therefore distinguishing between an offer and an invitation to treat is vital. An offer can be defined as a clear unambiguous statement of the terms upon which the offeror is willing to contract should the person or persons to whom the offer is addressed decide to accept. An invitation to treat on the other hand is a statement made without intending that a contract result if the person to whom it is made indicates his assent to those terms. In effect he question is ultimately one of intention, in most cases an advertisement is considered to be an invitation to treat however an advertisement will be considered to be an offer if the courts is convinced that it is seriously intended to be binding should persons come forward prepared to act on it.
The English case of Smith v. Hughes the court emphasises that the important thing is not a partys real intentions but how a reasonable person would view the situation. This is due mainly to common sense as each party would not wish to breach his side of the contract if it would make him or her culpable to damages, it would especially be contrary to the principle of certainty and clarity in commercial contract and the topic of mistake and how it affect the contract
When shopping on the Internet, one may face two different situations. A web site may contain advertisements which are mere invitations to treat. These are