Civil Engineering Reference
In-Depth Information
amounttoanoferbytheemployerthathasthenbeenacceptedbythecontractor - the
contract signed by the contractor constitutes the offer which to be binding must then
be accepted by the employer (
Liberty Mercian Ltd
v.
Cuddy Civil Engineering Limited
and Cuddy Demolition and Dismantling Limited
(2013)).
As regards the use of emails, case law has confirmed that where the terms of a con-
tracthavebeennegotiatedbyemail,andagreementhasbeenreached,thiscouldcreate
a binding contract, in writing and signed, even if the actual physical document was
not prepared and/or signed, see
Golden Ocean Group Ltd
v.
Salgaocar Mining Indus-
tries PVT Ltd and another
(2011). If there is a reply accepting the terms, then the
contractcanbeformed.hisisespeciallysoifthereplyisnotinafreshemail,but
is part of a chain of emails, see
Nicholas Prestige Homes
v.
Neal
(2010). Of course, in
terms of a variation to a contract, any variation must follow the form (if any) stip-
ulated by the original contract. In the absence of such a stipulation (and subject to
any statutory requirements such as those in the Requirements of Writing (Scotland)
Act 1995), there is no set form for a variation, i.e. it need not match the form of the
original contract.
The Scottish Government is, at the time of writing, considering legislation which
would allow the English concept of execution of contracts by counterparts to be valid
for Scots law contracts as well as conclusion of contracts by email, (the Legal Writings
(Counterparts and Delivery) (Scotland) Bill).
3.2.3 The postal acceptance rule
An offer, withdrawal or rejection of an offer is only valid when it has been received
by the other party. Conversely, a contract is formed when an unqualified acceptance
is posted, and not when it is received, even if a specified time limit for acceptance has
passed by the time the acceptance is received (but not prior to the acceptance being
posted), see
Jacobsen Sons & Co
.v.
E Underwood & Son Ltd
(1894).
The case of
homson
v.
James
(1855) sets out the principles of the postal acceptance
rule. In that case the offer was posted to the offeree he offeree posted his acceptance
and, on the same day, the offerer posted a letter withdrawing the offer. Both letters
arrived at their respective destinations on the same day. The question for the court
was which letter took effect first - was there a concluded contract or did the letter
withdrawing the offer take effect before the letter accepting the offer? Obviously, if
the retraction was effective first, then the offer no longer existed and could not be
accepted.
It was held by the court that the acceptance was effective and that, therefore, there
was a concluded bargain between the parties which could not be affected by the letter
of revocation. he rationale was that an acceptance is effective when physically posted
whereas a letter revoking an offer is not effective until it actually becomes known to
the offeree.
Where the offer specifies a time limit within which it must be accepted, acceptance
will be effective provided the acceptance is posted within the time limit. It is of no
consequence to establishing whether there is a concluded contract if the acceptance is
