Acceptance And Certainty Notes

ACCEPTANCE AND CERTAINTY * * * * * * * Final and unqualified assent Only can be accepted by the person or persons to whom the offer has been made o unless circumstances say otherwise o unilateral contract SS? first person to respond All that can be accepted is what was offered o terms can't be modified Acceptance must be in response to and as a result of the offer o Crown v Clarke SS? can only claim the 'reward' if you are accepting the offer SS? must know about it/ be a response to an offer Counter offer is NOT acceptance o Hyde v Wrench Standard forms o "battle of the forms" SS? Butler Machine Tool Co Ltd v Ex--Cell--O--Corp (England) Ltd SS? terms of the buyer different to the terms of the seller * accepted as a counter offer not original terms To be valid, the offeree must not only agree with the terms proposed by the offeror but acceptance must be unqualified o sometimes it is conditional SS? "Terms and Conditions" Conditional Acceptance: * Is there finality? o "subject to contract" SS? Master v Cameron SS? High Court of Australia -- 3 possibilities 1. reached final agreement a. terms set out more precisely 2. reached final agreement a. defer performance 3. reached final agreement a. second formal contract is required -- CONDITIONAL o "subject to finance" SS? purchaser must take all steps reasonably necessary to get financial approval SS? finance satisfactory is a decision made by the seller PAGE 50 ACCEPTANCE MUST BE COMMUNICATED! * Acceptance is only effective when communication has been received o offeror can stipulate the way acceptance should be communicated * "only method" o acceptance must be made in this way * "specify a method but don't say it's the only method" o acceptance is accepted if it is advantageous to the offeror * "no method" o acceptance in the same form as the offer was given * "acceptance by conduct" o infer acceptance from conduct SS? Empirnall Holding v Machon Paul Partners * "acceptance by silence" o OFFEROR CANNOT STIPULATE THAT CONTRACT IS ACCEPTED BY SILENCE SS? Felthouse v Bindley SS? Australian Consumer Law s40 - Assertion of right to payment for unsolicited goods or services 1) A person must not, in trade or commerce, assert a right to payment from another person for unsolicited goods unless the person has reasonable cause to believe that there is a right to the payment. S41 -- Liability etc. of recipient for unsolicited goods, 1) If a person, in trade or commerce, supplies unsolicited goods to another person, the other person : (a) is not liable to make any payment for the goods; and (b) is not liable for loss of or damage to the goods, other than loss or damage resulting from the other person doing a wilful and unlawful act in relation to the goods during the recovery period. Postal Rule * acceptance arises as soon as the letter is properly posted NOT when it is received o Adams v Lindsell * parties must have contemplated post would be means of communication o Henthorn v Fraser * EXCEPTIONS o offeror stipulated actual receipt of acceptance letter SS? Bressan v Squires o circumstances of case -- where negotiations are complex and highly contentious SS? Tallerman v Nathan's Merchandise PAGE 51

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