A promise to keep an offer open

A unilateral offer is a contract whereby the
offeror makes an express promise in exchange for an act by the offeree. A
unilateral offer can be accepted through ‘acceptance by conduct’. This is
evident in the case of Carlill v Carbolic
Smoke Ball1.
In this case, an advert was placed to the any person who gets influenza after
using the smoke ball within a specific period in return for £100.  In addition to that, a unilateral offer can
be accepted once the offeree is satisfied with the conditions. This means that
the offeror is protected since she will only be contractually obliged to
offeree, and the offeree is protected as if she performs the act, the offeror
will be contractually obliged to pay him/her.

In a unilateral offer, the condition that
the offer must be communicated to the offeror is abandoned. A unilateral offer
can be revoked in different situations. For example, a unilateral offer can be
revoked through revocation by the offeror. This can happen at any time before
the acceptance. Revocation is only effective when communicated to the offeree.
For example, by disposing of the subject matter elsewhere as this simply makes
the offeror unable to perform and potentially in breach of the contract if the
offeree has accepted the offer.

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Although revocation must be communicated to
the offeree, it need not be communicated by the offeror. This is supported in the
case of Dickinson v Dodds2
where the reliable third-party communication was enough. Also, the offer can be
revoked even where the offeror promised to keep it open. In Dickinson v Dodds,
it was also held that a promise to keep an offer open is not binding unless
there is some separate consideration for the promise to keep the offer open. This
means that the offeror can revoke the offer within the specific time limit if
it has not been validly accepted. Communication of revocation takes effect when
it is received by the offeree. This is supported in the case of Byrne v Van Tienhoven3,
in which the revocation of an offer was sent by telegram and was held to be
communicated only when the telegram was received.

Also, in the case of Luxor v Cooper4,
it indicates that the offeror could revoke at any time before the act of
acceptance is completed. However, the modern accepted view indicates that once
acceptance of a unilateral offer has begun, and if the performance is not left
incomplete or unperformed as evident in the case of Errington v Errington5, the offeror must give the
offeree a reasonable chance for completion but need not wait an unreasonably
long time.

 

A
(ii) The definition is of a contract is agreement with certain terms involving
two or more people in which there is a certainty to do something in return that
is beneficial, known as consideration.
The first problem is whether there were binding contracts between CC and Sessex
Hospital and CC and Dougal. In the case of Storer v Manchester CC6 , the law is not disturbed
with what the people are thinking but what a rational person would conclude
from their conduct.  Next, acceptance is
the final expression of assent to the offer. 
In Carlill v Carbolic SmokeBall7 acceptance can be by words
as well as conduct. The court must have evidence as it shows that there was an
intention to accept. Lastly, consideration consists of ‘either some benefit
accruing to one party or some detriment suffered by the other’.  To enforce the contract, it must be a correlation
between the promises.  Regarding the scenario
it is evident that the agreements between both contracts were able to fulfil
the sections of binding contracts; there were suitable offers and acceptances
(by conduct). The contracts had consideration because the parties had to receive
a loss and benefit. There was a correlation between the parties’ promises
because there would not have been applicable contracts if there was no
consideration.

 

The
first legal issue is whether there is a consideration when CC promised to pay
Dougal £60 if he delivers the food on time. 
Consideration as defined in the case of Currie v Missa8
“a valuable consideration, consist either in some benefit accruing to the one
party, or some forbearance suffered or undertaken by the other”. Where the promise re-performs an as of now
set up commitment it does not sum to a guarantee. There will be no guarantee if
the claimant promises to accomplish an obligation which as of now legally
existed. In Stilk v Myrick9 the seaman was under a present
contractual duty which meant there was minimal consideration.  On the hand, in Williams v Roffey Bros Ltd10 it is now recognised that
there can be consideration if the claimant completed an already existing
contractual duty. The defendant had to pay additional funds to the claimant as the
agreement was in both parties’ benefit, this is the practical benefit rule. Regarding
the scenario, the case Stilk v Myrick supports the fact that there would be no
consideration as Dougal would only perform the obligation which was formerly
owed to CC (defendant). However, valid consideration can be seen when CC had
promised to rise Dougal’s pay.  This
benefitted both parties as CC and Douglas both wanted to save their reputation,
this is the practical benefit rule. CC benefitted after making the payment as Dougal
was able to fulfil his side of the contract. 
This indicates that there was a valid consideration due to the promise of
surging Dougal’s payment, therefore he cannot be responsible for any actions brought
against him. This is because the latest contract he entered with CC voided the effectiveness
of the terms in the previous contract11.

 

 

B)  Negligence is when
someone who owes you a duty of care has failed to act according to a reasonable
standard of care and this has caused you damage. Negligence is for the most
part comprised of three elements which are a duty of care, the breach of duty
and causation. Before one can sue for harms in negligence, it must first be
proven that a duty of care is owed. If a duty of care isn’t proven, then no
liability can be imposed – irrespective of how reprehensible the defendant’s
conduct was or how much the claimant has suffered. The law states that if it is
reasonably foreseeable that an individual might suffer harm due to the actions
of another individual, then that person owes you a duty of care. The legitimate
test for finding out whether a lawful duty of care exists, in any given
circumstance was established through the case of Donoghue v Stevenson12.
The neighbour principle developed by Lord Atkins indicates that reasonable
care must be taken in order to avoid omissions that could reasonably be
foreseen as likely to harm one’s neighbour.  When the duty of care has been proven,
determining whether the duty of care has been breached is the next step. Breach
of duty requires the defendant to have been at blame by not satisfying their
duty towards the claimant. In order to prove a breach of duty, the courts apply
a two-stage test: firstly, a question of law, the standard of care the
defendant ought to have worked out and secondly, a question of fact and whether
the defendant’s conduct fell underneath the required standard. In the case of Blyth v Birmingham Waterwork13,
the standard of care required is that of a ‘reasonable man’, which is quite
objective. For example, in the case of Hall
v Brooklands Auto-Racing Club14,
the classic image of a reasonable man offered by law is ‘man on the Clapham
omnibus’. A reasonable person would consider the risk when choosing to act in a
certain way and in deciding the standard of care required. The magnitude of
risk ought to be considered. This implies considering the likelihood that the
defendant’s conduct could cause harm and how serious that harm is likely to be.
The less likely harm caused, the lower the standard of care required. This is
supported in the case of Bolton v Stone15
as the risk of the injury caused by the ball was minimal. This meant that the
defendant had taken preventative measures and a reasonable person would not
have expected the damaged caused. As a result, the defendant had not breached
the duty of care as it had satisfied the standard of care required. However,
ignoring minimal risks might not always be reasonable. For example, in the case
of Haley v London Electricity Board16.
The House of Lords concluded that it was reasonably foreseeable that
unaccompanied blind pedestrians may walk that route and therefore the
reasonable person should not ignore the risk to blind pedestrians, especially
due to the gravity of the potential injury. The seriousness of possible damage
caused ought to be considered by a reasonable person as the more serious the
damage, the more prominent the standard of care. In the case of Paris v Stepney Borough Council17,
the claimant had lost sight in one eye and the defendant was aware of this but
failed to provide protective goggles to wear at work. As a result of this, the
House of Lords found that the likelihood of the harm happening was little, but
its consequences were big. Subsequently, the defendant ought to have taken
additional care to supply googles to the claimant. The courts will consider the
practical measures the defendant could have embraced in order to avoid the
damage. The more prominent the risk of injury, the greater the need to take
precautions. In the case of Latimer v
Avec Ltd18,
it was concluded that the defendant took all reasonable steps to avoid the
accident in the situation. Closing down the factory was the only alternative
which would be deemed as an unpractical, unreasonable solution. The more
prominent the social utility of the defendant’s conduct, the less likely it is
that the defendant will be held to be n negligent. However, if the defendant’s
action is illegal, the defendant will be required to work out a high degree of
care to legitimise a little risk of harm to others. This is supported in the
case of Watt v Hertfordshire County
Council19
where the court found that the advantage of sparing the lady caught in the
accident was more prominent that the risk of harming the fire warriors.
Therefore, the defendant had satisfied the standard of care required.
Nonetheless, the nature of work of the emergency services does not make them
immune from negligence claims. The current state of knowledge must be used to
determine what a reasonable person, in the defendant’s situation, could have
foreseen. This is supported in the case of Roe v Minister of Health20 as Denning LJ stated that ‘.. the court
must not look at the 1947 accident with 1954 spectacles…’. This is
because when the case was heard, the defendant had to be judged by the state of
knowledge at the time in 1947 which meant that the duty of care owed by the
hospital to the patient had been broken. On the contrary, there are a few
restrictions on the meaning of the term reasonable as feminist legal scholars
argue that in deciding who is the reasonable standard to be breached, the law
should base its decision less upon pure logic and formulas and much more upon
emotional obligations.

 

 

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