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regard such an advertisement, if made in good faith, as an intimation of an intention to sell, and not as a binding undertaking to sell. On this principle an advertisement of a sale by tender is merely an invitation of offers, and does not imply that the highest offer will be accepted.

§ 30. Communication of Offer and Acceptance.—The parties must communicate to one another their common intention. Unless the offer be communicated, there is no opportunity for acceptance, and a mere intention to accept has no legal effect. If A. offers to sell goods to B., and B. resolves to buy them at the price mentioned, but never communicates his intention to A., there is no agreement for the sale of the goods. The communication of the acceptance may, as we have seen, take the form of the doing of an act. For example, when an order is sent for goods, the offer to purchase implied in the order may be accepted formally, or by the actual sending of the goods.

§ 31. When is the Communication complete ?—The communication of an acceptance is complete when it is put in course of transmission to the proposer, so as to be out of the power of the acceptor. As a proposer may revoke his proposal before acceptance, it is of great importance to determine the point of time from which an acceptance dates. Where the acceptance is oral no difficulty occurs, but where the acceptance is made by letter or telegram, the question arises, does the acceptance date from the moment of posting the letter or sending the telegram, or from the moment when the letter or telegram is received by the proposer? It has at length been decided that where an offer is made by letter or by telegram, the acceptance is complete the moment the letter of acceptance or the telegram is despatched. Some say that the rule is based on the principle that where A. makes an offer to B. by letter, A. is understood to authorise B. to send an acceptance by post.

The acceptance being complete the moment the letter is posted, it follows that there is a binding contract, though the letter containing the acceptance is never received. The letter may be lost during transmission, but both persons are bound by the contract.

If it is desired to exclude the operation of the rule, the offer should state expressly that the acceptance is not to be binding until the acceptance has been received.

An acceptance may be implied from the conduct of the acceptor. An omnibus company by running its buses offers to carry safely any person who pays the fare. The getting into an omnibus is an acceptance. In the case of an order for goods, the offer as we have seen may be accepted by the sending of the goods.

§ 32. Nature of the Acceptance. The acceptance must be absolute and identical with the terms of the offer.

If there is any variation between the offer and the acceptance, there is no agreement, and the acceptance with its variation is regarded as a new proposal.

A. offered to sell B. a quantity of "good" barley, and B. replied by accepting the offer of the "fine" barley. As it appeared that the words "good" and "fine" were used in the trade to denote different qualities, it was decided that there was no acceptance.

When a broker is employed to sell goods, he is regarded as an agent to act for both buyer and seller. He sends to the seller a "sold note," and to the buyer a "bought note." Both these notes ought to be identical, since if they vary in their terms, e.g. as to description of goods, or as to mode of payment, it may be held that there is no contract.

The acceptance of the offer must be by the person to whom the offer is made. A. sent an order for goods to B., who, unknown to A., had sold his business to C. The order

was opened by C. and executed by him, but it was held that C. could not recover the price of the goods from A., inasmuch as the original offer had been made to B. and not to C.

§ 33. Revocation of Offer.-An offer may be revoked up to the moment of acceptance, but not afterwards.

Until the offer is accepted there is no legal relation between the parties, and therefore the proposer may at any moment revoke his offer. Hence a bidder at an auction may withdraw his bid before the hammer falls. A merchant who has ordered goods by post may withdraw the order provided an acceptance has not been posted.

An offer may be revoked though it expressly allows a certain time for acceptance.

Very frequently a proposal contains a statement that the offer will be kept open until a certain day or a certain hour. For instance, A. writes to B. making him an offer of certain goods, and stating that he will keep the offer open for a certain time. A. is not bound to keep the offer open for such time, since he is under no legal duty to do so. His words are regarded merely as an intimation that after the expiration of the time mentioned the offer will not continue. Hence where three days were given by a merchant to an intending buyer of goods to make up his mind, and within the three days the buyer went to the seller for the purpose of accepting the offer, but before he accepted the offer the seller declined to sell, saying he had offered the goods elsewhere, it was held that this amounted to a revocation, and that there was no contract.

A tender to supply goods during a stated time to a company or institution made in reply to an advertisement, is an offer that may be revoked during the period the time is running. By giving orders from time to time on the terms of the tender, the company or institution convert the tender into a binding contract for all goods actually ordered, but this does not prevent the party tendering from withdrawing as regards any future supply.

§ 34. Express and Implied Revocations. The revocation may be either express or implied.

Express notice may be given by letter or telegram, or orally, and in order to prevent all misunderstanding, it is desirable always to give notice expressly. The form of the notice is immaterial, but it must be given by the proposer or his agent duly authorised.

Implied revocation is a revocation implied from the conduct of the parties. For instance, if A. offers goods to B., but before B. accepts A. sells them to C. If B. has notice or knowledge of such sale he cannot proceed to accept A.'s offer. The sale to C. is regarded as an implied revocation of the offer made to B. But suppose B. has no knowledge of the sale to C., is he at liberty to accept A.'s offer? The

point has not yet been decided, but Mr. Pollock answers in the affirmative. The result would be that A. would have sold the goods twice over, and would have to pay damages to one of the parties if he is unable to fulfil both contracts. It is therefore very desirable that a merchant who has made an offer of goods to one person should not sell them to another until he has withdrawn his first offer.

§ 35. Communication of Revocation.-An express revocation, to be effective, must be communicated to the person to whom the offer is made; but in the case of an implied revocation, knowledge of the revocation is sufficient.

A revocation not communicated is altogether inoperative. An intention or determination to revoke an offer is not sufficient. "The law," says Sir W. Anson, "regards the offerer as making his offer during every instant of time that his letter is travelling, and during the period which may be considered as a reasonable time for acceptance." The party to whom the offer is made is therefore entitled to consider that it is still being made, unless he hears to the contrary, and that his acceptance concludes a binding contract. An implied revocation, i.e. where the goods offered for sale to A. are sold to B., appears to be only effective if A. has notice of such sale.

§ 36. From what time Revocation dates.—The communication of a revocation is not complete until it is received.

We have seen (§ 31) that the communication of an acceptance by post is complete the moment the letter is posted, but in the case of a revocation the communication is not complete until it has actually reached the proposer. A Cardiff firm wrote on the 1st October to a New York firm offering 1000 boxes of tin plates at a certain price, and asked for a reply by cable. On the 8th October the Cardiff firm wrote a letter withdrawing the offer. The first letter containing the offer reached New York on the 11th October, and the New York firm at once cabled accepting the offer. On the 20th October the letter withdrawing the offer was received. The Cardiff firm refused to forward the goods, alleging that they revoked their offer by their

letter of the 11th October; but the court held that the revocation could only date from the 20th October, the date the second letter was received, and inasmuch as the offer had been duly accepted on the 11th, there was a binding

contract.

§ 37. What Agreements are Contracts ?-Assuming the offer not to be revoked, but accepted, there arises an agreement. But an agreement of itself is not enforceable at law. It is therefore necessary to ascertain what agreements the law will enforce. Briefly stated, an agreement to be enforceable must possess three characteristics :—

1. The parties to it must possess legal capacity to enter into the agreement.

2. The agreement must be made in a certain form or be supported by a consideration.

3. The subject matter must be lawful.

These three conditions will now be considered.

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