Discuss About The Magda A Misstatement Under The Provisions.
In order to analyze the issue the elements which require a thorough analysis is that of offer and acceptance. Common law sets out specific criteria to analyze whether the elements of offer and acceptance have been fulfilled or not.
The element of offer has been described by Stone and Devenney (2017) as an expression which is made to create a legal relationship with another party. An advertisement however is as invitation to offer as per Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953] 1 QB. An acceptance is the consent that a party makes to execute the offer and form a contract. As per the Felthouse v Bindley [1862] EWHC CP J35 case acceptance has to be communicated and the acceptance has to be unequivocal in nature. In the case of Hyde v Wrench [1840] EWHC Ch J90 the court ruled that a counter offer which is an unequivocal acceptance ends the original offer. In the case of Jacques & Co. v McLean (1880) the court stated that mere inquired are not counter offers. An offer elapses if not accepted on time as per Barrick v. Clark, [1951] S.C.R. 177.
Sunday 19th July
The advertisement which has been made by Magda to sell the portrait at $2000 is an invitation to treat according to the principles of Pharmaceutical Society of Great Britain v Boots .
An offer has been made by Avinash through email according to which he wants to purchase the portrait at a price of $1600. This is an offer as it has been made in relation to the advertisement and is complete.
An offer has been followed by a counter offer as per Hyde v Wrench as Magda has provided a new price which is more than the offer of Aviniash. Thus the offer for $1600 has ended.
Avinash likes the price of $1800 but he wants to consult his wife. Here he has not made a valid acceptance as he has additional conditions attached.
Magda has made a valid offer which states that she will sell him the painting at a price of $1800 and the offer is open till 21st February.
20th February
A mail has again been done by Avinash which states that he has consulted with his wife and he would like to purchase the portrait at a price of $1800. However he has provided a new condition through which he asks for certificate of authenticity. This is an additional condition and thus as per the case of Hyde v Wrench it is a counter offer which has been made by Avinash which has defeated the original offer which was open to be accepted till 21st February. Thus the offer is no longer eligible to be accepted. The additional condition cannot be treated as an inquiry.
Latter Magda has mailed him that she would be willing to provided the certificate to him as well. This is a new offer which was open till 4 pm.
However Avinash who was decided to think again over the deal did not make the acceptance by 4pm. In this situation the offer has elapsed by time as per the case of Barrick v. Clark. Thus no contract has been formed between Avimash and Magda based on the rules of offer and acceptance as an offer was never lawfully accepted.
It has been provided through section 18 of the schedule 2 of the Australian Competition and consumer Law (Cth) generally known as the Australian Consumer Law that a person in course of trade has no right to indulge in a conduct which is misleading and deceptive or which is likely to mislead and deceive.
The provisions in relation to misleading and deceptive conduct has been discussed in the case of ACCC v TPG Internet P/L (2012) HCA 54 where an advertisement was held to be misleading and deceptive or what is likely to mislead of deceive as it had false information which has the potential of misleading consumers. The statement will contravene the section if it is directed at a person, has been dine in course of trade and commerce and induces or has the capacity to incidence an error.
As per the provisions of section 3 of the ACL the law is applicable on people who has purchased goods for domestic and household purpose and have a value of less than $40000.
In addition it has been provided through the provisions of section 56 of the ACL that when goods and services are sold through a particular description then they must be exactly in compliance with the description or else the provisos of this section would be violated.
In the given situation under the provisions of section 3 of the ACL Elton is a consumer as he has purchased the portrait at a price of $2000 for domestic use. Thus ACL would be applicable on him.
A misleading and deceptive conduct is said to be made under section 18 if the three elements discussed above are present in the conduct. Firstly it is clear in the given situation that as the advertisement is on the website of Magda which is viewed by consumers her statement is directed at the consumers. In addition it is also clear that the statement has been made in the course of trade and commerce. Again the statement has the capacity of inducing consumers as they would purchase the portrait by knowing that it has been printed on acid free paper and is limited edition where only three copies have been published. Thus as this is not true Magda has breached section 18.
Further under the provisions of section 56 goods and services sold through a particular description must be exactly in compliance with the description. However it has been found that the portrait is not limited edition and has been printed on low quality paper. Thus it can be stated that the terms of section 56 have also been violated by Magda
Under the ACL Elton has the right of repair , replace and refund under the consumer guarantees. Thus where his rights have been violated he can claim refund against the painting which has been purchased by him for $2000 from Magda.
Yes I agree with the statement that ‘Consideration provided under a contract is not always valid. This can have unfortunate consequences for a party seeking to enforce the ‘contract’. In the cas of Thomas v Thomas (1842) 2 QB 851 consideration has been defined as something having a value in the context of law. A promise which is one sided in nature is a gift rather than a consideration. There are specific rules which determine whether a consideration valid or nor not. This section of the paper will analyze these rules in the light of various case laws and legal provisions. The rules of consideration are as follows.
It has been stated by the court in the case of Re McArdle (1951) Ch 669 that a past consideration is not a valid consideration. This means that any act which has been executed before the offer in relation to the contract in context has been made is a past consideration and not valid in the eyes of law. For instance A used to take care of B’s garage voluntarily. A asked B for one of his cars for rent and B said that he will do so as A used to take care of his garage. B refuses to provide the car latter. There is no contract in this case as the consideration given by A is a past consideration. However exceptions to this rule have been provided in the case of Lampleigh v Braithwaite [1615] EWHC KB J17. Here it was stated by the court that an act done in the past will be valid if it has been done based on a request by the other party. Thus in relation to the above example of A took care of B’s garage on his request it would be a valid consideration for renting the car. In the case of Chappell v Nestle [1960] AC 87 and Thomas v Thomas it had been made clear by the court that a consideration must be sufficiently present in a contract although it may not be adequate and love, affection, betting and gaming cannot be considered as a consideration. Thus when getting into contract parties must be aware of the rules or else no contract would be formed at all. In the case of Tweddle v Atkinson [1861] EWHC QB J57 it had been ruled by the court that where a consideration is provided by any other person other than the promisor a valid contract is not formed. In the case of Collins v Godefrey (1831) 1 B & Ad 950 it had been stated by the court that an existing duty under a contract cannot be a valid consideration. For instance A had the duty to paint B’s house within a week. He informed B that he will not be able to do it within the time. B offered him extra money and thus he completed the Job. Here A cannot claim from B as he was under an existing obligation to paint the house and no new consideration is provided. There is a exception to this rule as per Glasbrook Bros v Glamorgan County Council [1925] AC 270 which applies when A goes beyond his contractual duties or A helps B avoid a loss as per Ward Williams v Roffey Bros [1990] 2 WLR 1153. In the same way as a contractual duty an existing duty at law will not be considered as a contract as per Stilk v Myrrick [1809] EWHC KB J58. For instance a police offer cannot claim additional money promised for doing his duties. However, this rule is also subjected to the above discussed exception of going beyond existing duty at law as per the case of Hartley v Ponsonby [1857] 7 EB 872.
Another situation where the parties need to be careful in relation to consideration is that of part payments. A part payment of a consideration cannot be considered as a valid consideration as discussed and analyzed by the Pinnel’s case 1602 5 Rep, 117. For instance A owed B $500 but requested him to accept $300 in full settlement of debt and B accepted it. B can claim the 200$ latter by stating that no consideration had been provided against the promise.
In the scenario between Magda and Eldon the consideration which was present was the portrait which was provided by Magda and the $2000 which was provided by Elton. This form of consideration is called executed consideration which is a kind of consideration which has been performed by both parties (Andrews 2015).
References
ACCC v TPG Internet P/L (2012) HCA 54
Andrews, N., 2015. Contract law. Cambridge University Press.
Barrick v. Clark, [1951] S.C.R. 177.
Chappell v Nestle [1960] AC 87
Collins v Godefrey (1831) 1 B & Ad 950
Competition and consumer Law (Cth)
Felthouse v Bindley [1862] EWHC CP J35
Glasbrook Bros v Glamorgan County Council [1925] AC 270
Hartley v Ponsonby [1857] 7 EB 872.
Hyde v Wrench [1840] EWHC Ch J90
Jacques & Co. v McLean (1880)
Lampleigh v Braithwaite [1615] EWHC KB J17.
Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953] 1 QB
Pinnel’s case 1602 5 Rep, 117
Re McArdle (1951) Ch 669
Stilk v Myrrick [1809] EWHC KB J58
Stone, R. and Devenney, J., 2017. The modern law of contract. Routledge.
Thomas v Thomas (1842) 2 QB 851
Tweddle v Atkinson [1861] EWHC QB J57
Ward Williams v Roffey Bros [1990] 2 W
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