Civil Engineering Reference
In-Depth Information
Principal held that there had indeed been consensus. The pursuers had presented an
offer that was the only basis upon which they would carry out the contract unless
otherwise agreed in writing. The defender, who knew of that condition, added his
qualification knowing that if it was to be accepted the pursuers would do so in writ-
ing. The pursuers did not accept the condition in writing. Despite this, the defender
allowed the work to proceed. By his actions the defender was held to have accepted
that the wind and watertight qualification did not apply and that there was a contract
between him and the pursuers.
3.2.2 Offer and acceptance
Offers should be contrasted with 'invitations to treat', where a party demonstrates
by words or by conduct a willingness to negotiate a contract. In a construction con-
text, where tenders are invited, these constitute invitations to treat. The tender that
is submitted by the contractor in response constitutes an offer which is available for
acceptance by the employer.
An offer must be communicated to the party to whom it is made, see
homson
v.
James
(1855).Itisthoughtthatwhereanoferiscommunicatedbyathirdparty(unless
an authorized agent of the offerer, for example, a solicitor), it cannot be accepted. Only
wheretheoferiscommunicatedbythepartymakingitcanitbeaccepted.
A simple, unconditional offer may be revoked at any time before acceptance, see
homson
.herevocationmustbecommunicatedtotherecipientoftheoferbeforeit
has any effect. Thus, offerers may change their mind at any time prior to acceptance.
On the other hand, if an offer is stated to be irrevocable for a certain period, it cannot
be withdrawn during that time. However, the period during which a firm offer is to
be kept open cannot be vague or it is unenforceable, see
Flaws
v.
he International Oil
Pollution Compensation Fund
(2002).
Where a time limit for acceptance is specified within the offer and no acceptance
is received within that time, the offer will fall unless the offerer extends the time limit
for acceptance. In
homson
itwasheldthatanofer,pureandunconditional,putsit
in the power of the party to whom it was addressed to accept the offer, until by the
lapseofreasonabletimehehaslosttheright.Whatconstitutesareasonabletimewill
depend on the facts and circumstances of each case.
Asimpleofermadewithoutlimitoftimemaylapsewherethereisamaterial
change of circumstances after the offer has been made. In
McRae
v.
Edinburgh Street
Tramways Co
. (1885), it was held by Lord President Inglis that the change of circum-
stances must render the offer 'unsuitable and absurd' before it will lapse.
Whereanoferismadeandhasnotlapsedduetoanyoftheabovefactorsthecon-
tract will be concluded, provided there is agreement between the parties, when the
offer is accepted. Acceptance can be express or it can be implied from the actions of
the recipient of the offer. Again, it is essential that the acceptance is communicated to
the offerer.
