Download - Dyers v Burton
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DYERS v BURTON
Offer v Invitation to Treat is demonstrated
-invitation to treat lacks certainty
-When assessing offer v invite to treat, we judge intention.
Intention here is evaluated objectively. Objective intention is
assessed, not subjective. The test is what can be reasonably said to
be the intention based on the context. Thus, problematic and murky.
(This is why lawyers like to settle since the court is unpredictable and
the outcome uncertain.)
June 6: invitation to treat. May be argued to be an offer, but looks like
an invitation to treat.
Oct. 16: plaintiff here asks for a lower price, which in effect is
rejecting the defendant's offer (to the extent that it is an offer). No
counter-offer is given.
Oct. 21: Is this a renewal of the offer? If it is, it is open to be
accepted. Plaintiff takes it as such and sends $500 (Oct.21).
Nov.5: Defendant returns the deposit and cancels the deal. Why?
(look at motivation to help solve questions of offer or not etc. Likely
defendant got a better offer and so want to cancel this offer. In 2013
this offer would likely not be accepted as a contract on the grounds of
uncertainty. Not enough detail to be considered a true contract.
The case here turns on the Oct.21 letter, and whether that was an
offer or just an invitation to treat. Again, the test is what was the
intention of the defendant.
Harvey v Facey (p.18; precedent for Dyers case): O'Bryne thinks,
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contrary to court ruling, an offer was given, not merely an offer of
treat. By stating his price, the defendant implicitly answered the first
question as to whether he wanted to sell. The judge in Dyers treats
Harvey v Facey as merely establishing what the court already knew,
that a mere statement of the lowest price does not necessarily
establish it as an on offer to sell, and thus not very determinative of
settling the issue in this case.
Judge the legal quality of an offer only by the intention at the time the
offer was made.
To judge the intention of a proposed offer, the court can only consider
the actions and words of parties at the moment the offer is made.
Can't look at subsequent actions/words, for that would create the
mischief that a party by its subsequent conduct could alter the legal
quality of the act at the time it was performed.
-if it helps your case, as a lawyer you may want to bring up the
conduct of your client of the opponent to prove a given issue was or
was not what you are trying to prove, but as a matter of law it
technically isn't supposed to be considered. There is some wavering
on this principle, but the correct view is that subsequent conduct is
not relevant.
Subsequent actions/words etc cannot be used to determine the legal
quality of an action done at its specific time and place, for that would
make it possible to allow for mischief.