Law of Obligations A – Contract Law

IntroductionThere is a general difference between contract and tort. Tort involves the civil rights of action such as negligence and restitution. Restitution is the repayment of money on the ground that the defendant has been unjustly enriched at the expense of the claimant, such as repayment of money paid under a mistake.

Donoghue v. Stevenson [1932] AC 562

Mrs. D’s sister went into Marchello’s café and purchased two ginger beers. One can was given to Ms. D. The can had a decomposing snail, which caused Ms. D some stomach pains and other things. As such, Ms. D sued Marchello’s café but could to receive anything other than another can of ginger beer. Marchello also had a right to sue Stevenson (the manufacturer) for the same can of beer.

Ms. D then decided to sue Stevenson for the hardship because is held a duty of care to protect any consumer of his product.

This law suit falls directly under Tort law, and Fault Liability. This is liability where proof of fault must be expressed.

Contracts are usually regarded as legally enforceable agreements or strict liability. However, agreement is rather an inadequate description of many situations that occur that hold the law of a contract.

Rather, the existence of an agreement should hold the doctrine of offer and acceptance.

Offer and Acceptance

Bi-Lateral Contract1) There will be an agreement if one party (the offeror) has made an offer to contract

on certain terms to another (the offeree);2) There is intentions to create legal relations/intention to be bound by the promise

made;3) the offeree has accepted the offer in the same terms; and 4) has communicated his acceptance to the offeror; furthermore,5) there has been some consideration for the contract

Uni-Lateral Contract1) Offeror makes a conditional promise to offeree. (This is such as I’ll do A if you

do B.) 2) Offeree accepts the offer and performs the condition to finalize the contract; and 3) receives the required promise of the offeror. (found usually in reward and

advertisement cases)

This is very similar to finding a lost cat and returning it to the owner to provide you with a reward as promised.

Executory Contract1) This is a contract made today to be performed on a later date. 2) Anticitory Breach is if the contract was not executed on the specific date.

This doctrine of Offer and Acceptance remains popular with judiciary because is assists in answering three questions:

1. Whether an agreement has been made2. When the agreement was made3. Where the agreement was madeUsually the agreement is made when and where the acceptance is communicated.

OFFEROffer:“An offer is an expression of willingness to contract on certain terms made with the intention (express or implied) that it shall become binding as soon as it is accepted by the person to whom it is addressed.” (Treitel)

Invitation to Treat:An offer needs to be distinguished with an invitation to treat. Invitation to treat is simply an expression of willingness to enter negotiations, with the hopes; it will lead to the conclusion of a contract at a later date.Usually found in:

Advertisements – tricky area as some do lead to offers o (Carlill v Carbolic Smoke Ball Co.) [????]

Displays in Shops Auction Sales

Request of Information:Harvey v Facey “Lowest price for Bumper Hall Pen” – this was simply a request for information and not an actual offer.Stephenson Jacques v McLean – Defendant asked “please wire whether you will accept ₤40 for delivery over two months, or if not, longest limit you would give” – did not amount to an offer because there was simply a request for information.

1. AdvertisementsAdverts are generally found, especially in bi-lateral contracts, to be considered an invitation to further negotiations rather than an offer.

Grainger & Son v Gough (Surveyor of Taxes) [1896] - Lord Herschell emphasised the protection of the party placing the advert from an unlimited number of transactions or contracts from occurring.

Partridge v Critteden [1968] - “Bramblefinch cocks, Bramblefinch hens, 25s each” Could not be charged for “offering to sale” wild birds under statute – since the

advert was in invitation to treat – inviting offers, not an offer itself.

Odd case: Denton v Great Northern Railway [1856] – Plaintiff sued because of a train that was cancelled. The timetable amounted to an offer.

Exceptions are mostly found in unilateral contracts: majority of advertisements requiring specified action to be performed for a sum of money would amount to offersCarlill v Carbolic Smoke Ball Co.

The making of a promise to pay a reward in exchange for the performance on an act.

Bowerman v Association of BTA Hobhouse LJ affirmed Carlill in saying how would a reasonable person interpret

the advertisement. Using an objectivity test.

2. Displays in ShopsThe general rule is that goods displayed in a shop constitute an invitation to treat/negotiate and not an offer.

Chapleton v Barry UDC [1940] The display of deck chairs for hire on a beach with a notice of the charges was an

offer, which was accepted by a customer taking a chair. Contradictory, why? The exclusion clause held on the receipt personal injury liability was excluded. In

order for C to be able to obtain compensation for injuries suffered, the judiciary had to put a contract in place.

Leading case:Pharmaceutical Society of GB v Boots Cash Chemists [1953]

Goods displayed on shelve are invitations to treat. The customer decided to make an offer to buy when he brings the goods to the

cash counter. At which point, the offer could be accepted or refused. Acceptance is the collection of money.

Fisher v Bell [1961] (Flick knife in shop window) Held to be invitation to treat. “Quite impossible to say that an exhibition of goods in a shop window is itself

and offer for sale” (Lord Reid)

3. AuctionsAuctions with a reserve are fairly straightforward. An auctioneer makes an invitation to negotiate; the offer is then made by a member of the public; the auctioneer generally invites further bids to be made for the lot; if no other bids are forthcoming, then the auctioneer accepts the bid on the fall of his hammer.

The Sale of Goods Act 1979 s 57(2)“A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner; and until the announcement is made any bidder may retract his bid.”

a. The advertisement of an auction is merely an invitation to treatHarris v Nickerson [1837]

N held an auction and advertised for a specific date, which was later cancelled. H sued for breach of contract. However, held there was no offer.

This decision may have gone in a different direction if due to the cancellation there were extraordinarily large sums of money lost.

b. Putting up goods for sale is also an invitation to treatBritish Car Auctions Ltd. v Wright [1972]

A car was placed for sale at an auction which was in terrible shape and went against the road worthy limits set out in Road Traffic Act 1960, which would have made it a criminal offence.

Lord Widgery affirmed Fisher v Bell (also dealt with illegal sale of prohibited knife) and Partridge v Crittenden.

c. Auctions without reserveWarlow v Harrison [1859] Horses were put up for sale by auction by the owner. Harrison was the auctioneer The owner was not satisfied with the price and bid a higher price. Came directly

into effect of the advertisement placed by the auctioneer “without reserve”.

Barry v Davies (Heathcote Ball & Co.) [2001] Two machines were put up for auction worth ₤28,000 without reserve. B placed a

bid of ₤200 each, however, D refused bids. Although lawfully possible in auctions with a reserve set, this is not possible in

those “without reserve” advertised. B was awarded ₤27,600 which was inclusive of additional damages. Held, auctions without reserves are to be held as offers to the highest bidder

which is finally accepted by the actual highest bidder, rather than mere invitations to treat.

4. TendersOne party invites bids (offers) from others for a contract he is proposing. The person making the tender is not required to make any acceptance of any of the bids.Spencer v Harding [1870]

The D sent out a circular for the sale of stock of a company by a tender. The tender to be satisfied by cash once accepted.

Did not amount to an offer, even though P had highest bid. There was no mention it would go to the “highest bidder” – D does not have to accept any one offer (bid)

Treated an invitation to treat and D gets to chose based on the wording of the Advertisement the accepted offer from the tenders.

Harvela Investments Ltd. v Royal Trust Co of Canada [1986]If tender states highest bidder will win then this amounts to an offer – similar to auctions without reserve.

R wanted to sell the shares of its company and invited a single tender from two firms, which the highest bidder would win.

H bid $2,175,000. X bid $2,100,000 or $101,000 in excess of any other offer…which ever is the higher (referential bid).

R accepted X’s bid. HL Held, R was required to accept H’s bid. It would be impossible to determine which of the two bids would be the

higher if they both were referential bids/both bid in the same manner.

Blackpool and Fylde Aero Club Ltd. v Blackpool BC [1990]Parties issuing invitations to tender are bound to consider (though not necessarily to accept) a tender properly submitted before any deadline.

BBC invited tenders. BFAC placed tender in town hall box before noon as specified. BBC did not empty letter box at noon, but rather much earlier before BFAC’s tender.

BBC thus accepted a much lower tender from X. BBC liable “lost opportunity” since BFAC was highest bidder and followed

the rules, but was never considered.

5. Conditional OffersCondition precedent – I will sell you my umbrella if it rains tomorrow. Found in such things as sale of land “subject to contract”. No agreement if found here and not legally bindingCondition subsequent – I will sell you my umbrella, but, not if it rains tomorrow. This is where a pre-existing contract is found and simply states how it is to be executed.

Condition precedentWinn v Bull [1877]

P and D entered into a tenancy agreement that stated “subject to a formal agreement” Held, there was no legal agreement found.

6. Termination of Offer Revocation Lapse of time Failure to comply with condition precedent Death of one of the parties

1. RevocationRoutledge v Grant [1828] D offered to purchase a house and provided P six weeks to provide

acceptance. O/or (D) withdrew offer earlier then the deadline. This was acceptable as

there was no acceptance communicated and no deposit left to keep offer open for the 6 week period.

Byrne v Van Tienhoven [1880]

o Oct 1, D in Cardiff sent a letter by post to offer the sale of tin plates to P in New York.

o Oct 8, D revoked their offer by sending another letter by post.o Oct 11, P accepted the offer and sent their acceptance letter on Oct 15o Oct 20, P received the revocation.o Held, that the revocation was received after the acceptance letter was

posted.o The revocation letter was received after the acceptance had taken

place. Thus the revocation must be directly communicated before the acceptance has taken place.

o Postal rule does not apply to revocations – they must actually be received or communicated

Dickinson v Dodds [1876]o Establishes that an offer can be revoked by a reliable third party even

acting without the offeror’s authority.o D decided to offer P certain property with the offer available until Friday.o D on Thursday decided to sell the property to a Mr. Allen (3rd Party) and

signed the papers.o P’s agent notified P that the property has been sold and no longer

available. P on Friday decided to accept the offer.o Court held there was no contract since P was notified of revocation by

his agent the previous day.

NB: In unilateral contracts in which offers are made to the world, such as that of the Carlill. In order to revoke such an offer the person must take similar steps to revoke the offer – such as place another advertisement – Shuey v US (US case so only persuasive) Which means that unilateral contracts usually may not be revoked, especially once the condition requested has begun (Errington v Errington) premise accepted in obiter in Daulia Ltd v Four Millbank – see below.

2. Counter offerHyde v Wrench [1840] A purported acceptance which does not mirror the purported terms of the offer is not an acceptance, but a counter offer which amounts to a rejection of the original offer. D offered to sell his farm to P ₤1000. P responded by offering to buy it for

₤950. D refused to sell at that amount. P tried to accept the original offer of ₤1000, but was held that there was not contract since the original offer was rejected.

Stephenson Jacques v McLean M through telegram offer to sell metal to P for ₤40 – open till Monday. On Monday P asked “please wire whether you will accept ₤40 for delivery

over two months, or if not, longest limit you would give”

M did not respond and sold to third party. P on the same day after not hearing back sent acceptance of the offer at the same time that M revoked the offer.

P sued for breach of contract. Held that the request of information was no a counter offer and that

the acceptance was in regards to the original offer thus M was liable.

3. Substitute OfferPickfords Ltd. v Celestica Ltd. [2003]

o C wanted to move office furnitureo Sept 13 – P offered to carry out the work, specifying the cost would not

exceed ₤100,000.o Sept 27 – P provided more details and offered to carry out the work at a

fixed price of ₤98,760o Oct 15 – C purported to accept the offer made on Sept 13.o Held, the second offer superseded and revoked the first offer.

4. Effluxion of TimeRamsgate Victoria Hotel Co. Ltd. v Montefiore [1866]

o In June D offered to buy shareso In November P informed D that the shares have been allotted.o Held, D was allowed to reject shares since his offer lapsed due to an

excessive amount of time that passed. 5 months for shares is extremely long time

5. Death of the offeror or offereeBradbury v Morgan [1862]

Death of the offeror before the offer is accepted, then the offeror’s estate is legally bound by any offer placed and accepted provided that the offeree is ignorant of the offeror’s death.

Reynolds v Atherton [1921] Where the offeree dies before acceptance, then the offer lapses and the

offeree’s estate will be unable to accept on behalf of the deceased.

ACCEPTANCE

Bi-lateral Contracts The general rule is that acceptance must be communicated to the offeror. There are no fixed rules about how acceptance must be communicated. The offeree

must in principle use any method which is reasonable in the given circumstances; including conduct showing that he is accepting the offer; but the offeror may prescribe a method of acceptance which the offeree is required to use.

The offeror may however, waive the need for compliance with any prescribed method.

1) Communicationa. Can silence constitute acceptance?

The general rule is that silence may not amount to acceptance.Felthouse v Bindley [1862]

o The plaintiff decided to buy a horse from his nephew.o “If I hear no more about him [horse], I consider the horse is mine at 30l.

15s.”o The nephew never responded back. He also decided to sell his stock in

auction, in which, he mentioned to the auctioneer not to sell the horse in question. The auctioneer sold the horse anyways and admitted his mistake.

o The uncle tries to sue the Auctioneer. However, no contract because silence does not amount to acceptance. The property was not vested by the nephew to the uncle.

Contrary to this decision, not importantRust v. Abbey Life Assurance Co Ltd. [1979] The mere fact of acceptance was the issuance of the policy to Rust who after

seven months decided to make an objection to the policy. Brandon LJ felt there was a contract in place.

NB: important to point out that in uni-lateral contracts the communication of acceptance has been waived. (Carlill)

b. Acceptance by ConductBrogden v Metropolitan Railway Co [1877] M sent B a draft agreement for the supply of coal. B amended the agreement and

sent it back. Nothing further was done to formalize the agreement. M placed an order for coal, which was supplied, and subsequently paid for. Dispute broke out and M denied any binding contract.

B’s amendment was a counter-offer in which it was accepted by M’s order and payment (Acceptance by conduct).

c. Communication through an agentPowell v Lee [1908] The managers of a school passed a resolution to appoint the plaintiff to head

master, which he applied for. The decision was not communicated to the plaintiff. It was held that the passing of the resolution without communication to plaintiff

did not constitute a contract to appoint him to the post.

2) Postal Rule A posted acceptance takes effect as soon as it is posted, provided that it was

reasonable for the offeree to have used the post.

Postal rule is an exception to the rule that acceptance must come to the attention of the offeror before it is valid.

Adams v Lindsell [1818] HLo L offered to sell wool to A by sending a letter of offer. A accepted the

offer and returned acceptance by post. The letter was misdirected, but received two days later; in the meantime L sold the wool to another party.

o The date the letter was posted amounted to its acceptance.

The postal acceptance rule applies even if the letter gets lost and is never delivered to the offeror.

Household Fire and Insurance v Grant [1879]o G made an application for the allotment of shares in the Plaintiffs

Company. These shares were allotted and duly sent notice by post. The notice was never received and G claimed he was not a shareholder.

o Appeal was dismissed and G was held to be a shareholder since even letters undelivered still amounted to acceptance

Revocation of offer by post takes affect when it is received and not when it is posted.Henthorn v Fraser [1892]

o H wanted to buy some property in a different town (Liverpool). The secretary provided him with the option for purchase for 14 days.

o The next day at 12 o’clock the secretary posted a revocation of the offer which was received at 5:00 pm. The same day H posted his acceptance at 3:50 pm.

o Held that a revocation by post does not have affect until it is brought to the notice/attention of the offeree.

o In which case, H’s acceptance by post was binding.

Byrne v Van Tienhoven [1880]o Oct 1, D in Cardiff sent a letter by post to offer the sale of tin plates to P in

New York.o Oct 8, D revoked their offer by sending another letter by post.o Oct 11, P accepted the offer and sent their acceptance letter on Oct 15o Oct 20, P received the revocation.o Held, that the revocation was received after the acceptance letter was

posted.o Postal rule does not apply to revocations – they must actually be

received or communicated

NB: A better rule to the Postal rule is found in the Vienna Convention on Contracts for the International Sale of Goods. “IF the acceptance is posted by the offeree the contract is concluded when the acceptance reaches the offeror…and

that an offer may be revoked if the revocation reaches the offeree before it has posted its acceptance.” This elements the idea in which the letters are never received and which prevents revocation by post once the acceptance has been posted.

Instantaneous Communication The postal rule “DOES NOT APPLY” to instantaneous communication, ie. telex

and faxes.Entores v Miles Far East Corporation [1955] CALord Denning at 333 states “The rule about instantaneous communications between the parties is different than post. The contract is only complete when the acceptance is received by the offeror” Think of situations where the ink runs out on the offeror machine he must state the offeree to repeat otherwise he would be estopped from saying he did not receive the acceptance. The acceptance which is sent by Telex is not effective until it has been

received by the offeror – normal acceptance rules. E in London sent an offer for the company of M by telex. M accepted the

offer in return by telex. The offer was not accepted until E had received the offer and not when it was sent.

AffirmedBrinkibon Ltd. v Stahag Stahl, etc. [1983] – outside of office hours rule

o B in London accepted by telex an offer made by S in Vienna. o The contract was held to have been concluded in Vienna since in the case

of instantaneous communications that was where the acceptance was received.

o Held, that the postul rule does not apply to telex (instantaneous communications)

o NB: a telex that is received after office hours is not acceptable until the opening next day.

Courts may take into account the intention of parties and sound business practices to make this assessment when received outside business hours.

NB: what’s interesting to note is whether acceptance made through email should be held on the Postal acceptance rules. Academics are of the view that emails should be held on the same general rules of normal acceptance and that the Postal Rule should not apply. This is based on comparison to the Vienna Convention for the International Sale of Goods. If this is the case in international contracts it would be wise to use in domestic law as well. No case law to support.

3) Prescribed Mode of AcceptanceThe postal acceptance rule does not apply where a prescribed mode of acceptance is stipulated. The postal rule must not have been excluded in the offer.

Holwell Securities Ltd. v Hughes [1974]

A contract stipulated that HS could accept an option to purchase certain property ‘by notice in writing’ to H within 6 months. – This statement was an express exclusion of the postal rule, as they require direct communication of writing in front of them.

HS’s solicitor sent an acceptance by post which never arrived. It was held that no contract existed since the requirement of ‘notice in

writing’ was not achieved. It was interpreted that actual notice was required to H, which never happened.

Financings Ltd. v Stimson [1962] March 16, Hirer D pays deposit to a dealer and signs a form of Hire Purchase

Agreement to acquire a car on Hire Purchase from P, a finance company. The agreement states that it shall become binding on P only upon

acceptance by signature on their behalf March 18, D takes possession of the car with P’s permission – test drive. March 20, D returns the car to the dealer stating that he does not want to go on

with the purchase. D offers to forfeit the deposit. Both D and the dealer think that P has already signed the agreement – although it was a condition subsequent

Night of 24/25 March, the car is stolen from the dealers premises. Found to be damaged when recovered.

March 25, Agreement signed on behalf of P Held, that the dealer had ostensible [apparent] authority to accept D’s

revocation of his offer to enter into the HP agreement, therefore there was no contract. And D’s offer was conditional upon the car remaining in substantially the same condition as when the offer was made.

Tinn v Hoffman [1873]Where acceptance was requested by return of post, Honeyman J stated at 274:“That does not mean exclusively a reply by letter by return of post, but you may reply by telegram or by verbal message, or by any means not later than a letter written and sent by return of post…” Acceptance was requested by post, but does not exclusively require a

reply by post if an equally expeditious method suffices

Manchester Diocesan Council for Education v Commercial and General Investments Ltd. [1970] Although an offeror is entitled to insist acceptance in a particular way, where

a method of acceptance is merely prescribed, any equally efficient method of acceptance will suffice.

If the offeror wants to be bound only if the offer is accepted in some particular way, he must make this clear.

4) Withdrawal of AcceptanceDunmore v Alexander [1830]

Uni-Lateral ContractsA unilateral contract is whereby one party offers to pay a sum of money in return for a specified action to be performed.

There is no need to give advanced notification of the acceptance – this right has been waived by the offeror

1) Theoretical BasisCarlill v Carbolic Smoke Ball Co. [1893] A person is not required to give advanced notice of acceptance to the offer in

advertisements. Once performance has completed the offeree is entitled to any reward or

promise purported by the advertisement.

UDT Ltd. v Eagle Aircraft Services Ltd. [1968] D was required to repurchase aircraft only when they have been notified that there

was a default of payment within 7 days. Since these notification did not occur for some months later when the termination of the agreement came due D was not liable for repurchase of aircraft because the Notifications were to provided during defaults.

2) Offeree’s knowledge of the offerGibbons v Proctor [1891] A claimant is entitled to a reward even though at the time of conducting the act he

didn’t know of the offer. A police officer provided information to a third party to be passed on to the head

of police (that made an offer to reward for this information). The Police officer did not know of this offer until after he gave the information, in which the information had not yet reached the head of police.

Head of Police argued that he was ignorant of offer when it was made and thus no reward.

It is argued though that he did know of the offer by the time the information was received by the offeror through a third party.

Trietel feels the general rule is ignorance of the offer does not amount to acceptance.1

3) Motive of the OffereeWilliams v Carwardine [1833] As long as the claimant knows of the offer and performs the conditions

specified, the motives for acceptance should be irrelevant.Compare:R v Clarke [1927] – Australian Case Where a reward was offered for information to the conviction of a murderer. The

defendant was not given the reward because his motive was to clear his name of

1 Trietel, E. Peel, ‘The Law of Contract’ (12th ed Sweet & Maxwell, 2007) 2-047

the murder accusations – and that he had no clue of the reward at the time he gave the information. – here motive was relevant.

4) Revocation after performance of condition – “Walk to York” problem The offeror can revoke an offer prior to acceptance

Follow Shuey v US criteria in that reasonable similar steps must be taken to revoke such an offer that is made unilaterally to the world. Thus, in Carlill a similar add must have been placed in order to revoke.

However, those that have already begun must complete the condition in order to be fully rewarded.

Revocation once performance has begun is slightly muddled:Commercial Context:Luxor (Eastbourne) Ltd. v Cooper [1941]o C promised to pay L a commission if L found buyers for C’s 2 cinemas at the

right price and the sales were concluded. L introduced a willing buyer, but C refused to proceed with the sale.

o HL denied L the commission, which was only payable on completion of the sale.

o The courts will provide revocation of offer after performance has commenced in commercial contracts rather than in social contracts.

This is mainly because it would be reasonable for the offeree to bear the risk involved in such transactions. Usually will be found in commercial contexts.

Social Context:Errington v Errington [1952] - CAA unilateral offer cannot be withdrawn once performance has begunThere would be no binding contract if performance was left incompleteo The father purchased a home for his son and daughter-in-law promising to be

theirs once fully paid if they continued to pay the mortgage payments.o Denning LJ - held that once performance had commenced the Mother

was estopped from revoking the offer since it would be unconscionable for her to do so.

o As long as the performance has not been left ‘incomplete and unperformed’. The offeror may only be obliged to the promise if the condition has been performed of its entirety.

There is an implied obligation on the O/or not to revoke the offer once the O/ee has started performance – found only as obiterDaulia Ltd. v Four Millbank Nominees Ltd. [1978]o P was to attend D’s office on a specified date and time to exchange contracts

for the sale of a propertyo P arrived at the said time, but D refused to uphold the promise

o Brightman J in his judgement held that there was a concluding contract because P performed fully the required duty of attending the office at the specified time with the written contract.

o Goff J – obiter – stated that there is an implied obligation that once performance has started that the offeror will not do anything to prevent the condition from being satisfied.

Goff J – Obiter – before performance has commenced “the offeror can revoke the whole thing, but once the offeree has embarked on performance it is too late for the offeror to revoke his offer." This is an inferred condition only found in unilateral contracts.

5) If revocation – is express notice required to the offeree? No solid English case law that outlines if express notification or in what manner

revocation would be appropriate. Article 2:202(2) of the Principles of European Contract Law states,

o ‘an offer made to the public can be revoked by the same means as were used to make the offer.’

Shuey v United States [1875] – USA Case Provided an offer is revoke in the same means or ‘notoriety’ in which the original

offer was expressed, this is sufficient for revocation, even if C has not read it.

Battle of the FormsParties purport to conclude a contract by an exchange of forms containing incompatible terms (whether called offers, quotations, tenders, invoices, orders, delivery notes and so on). The party who presents his terms last without provoking objection from the recipient, who then acts on the ‘contract’ succeeds in binding the recipient on his terms.

Brogden v Metropolitan Railway Co. [1877] – see page 5

Butler Machine Tool Co. Ltd. v Ex Cell O Corp. Ltd. [1979] B quoted the price of manufacturing a machine for E on B’s standard terms B*

with a price variation clause. E then placed an order on their standard form E*, which contained no price

variation clause E* had a tear-off slip for the supplier’s signature acknowledging the order to be

on E* terms. B signed and returned the slip, but also attached a letter stating the supply of

machine on their original terms B* B relied on their B* terms to be able to obtain an additional charge on delivery

based on the price variation clause. Held, B accepted E’s counter-offer by signing and returning the

acknowledgement slip based on E* terms. The accompanied letter was not an additional counter-offer but merely an identification of the order.

o Essentially each offer was considered a counter offer and acceptance was based on the conduct of the latest counter offer as the binding contract.