Sunday, August 30, 2015
AGC (Advances) Ltd v McWhirter
case-note legal contract
(1977) 1 BPR 9454
An auctioneer at an auction does not make an offer to sell; bidders are the offeror. No contractual claim can arise unless and until the bidder's offer is accepted usually by the fall of the hammer, which means that the vendor is not bound to sell to the highest bidder.
This general rule does not change: (1) by an announancement at the auction that the highest bidder shall be the purchaser; (2) by an announancement that the property is on the market or the auction is without reserve.
Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern)
case-note legal contract
[1953] 1 QB 401
This case is concerned with when a sale took take in a self-service pharmacy.
As per Somervell LJ, "...in the case of an ordinary shop, although goods are displayed and it is intended that customers should go and choose what they want, the contract is not completed until, the customer having indicated the articles which he needs, the shopkeeper, or someone on his behalf, accpets that offer."
As per Lord Goddard CJ, from whom this case is appealed:
"Therefore, in my opinion, the mere fact that a customer picks up a bottle of medicine from the shelve in this case does not amount to an acceptance of an offer to sell. It is an offer by the customer to buy and there is no sale effected until the buyer's offer to buy is accepted by the acceptance of the price."
Therefore, the display of goods for sale, whether in a shop window or on the shelves of a self-service store, is ordinarily treated as an invitation to treat, not an offer.
Saturday, August 29, 2015
Williams v Milotin
case-note legal torts
[1957] HCA 83; (1953) 97 CLR 465
This is the authority of Australian's position on fault in trespass.
"At that time the present action might have been framed as an action of trespass. For it seems that the facts which the plaintiff...intends to allege are that he was immediately or directly hit by the motor car driven by the defendant as a result of the negligence of the defendant himself. There is no suggestion that the defendant intended to strike him. If that had been the allegation the action could have been brought in trespass and not otherwise."
The present of intention to strike the plaintiff bars an action on the case.
"But as only the negligence of the defendant is relied upon, while the cause of action might have been laid as trespass to the person, the action might also have been brought as an action on the case to recover special or particular damage caused by the defendant's negligence"
This is where English and Australian courts have diverged. In Australia, if (1) direct (2) injury or harm resulted from defendant's (3) negligence, then an action can be brought as either trespass or an action on case or both. In UK, these two regimes do not overlap.
"Had the damage been caused indirectly or mediately by the defendant or by his servant...the action must have been brought as an action on the case and not otherwise..."
An action in trespass requires directness.