Law free essay: The Application of Traditional Rules of Offer and Acceptance in English Contract Law
The Application of Traditional Rules of Offer and Acceptance in English Contract Law in the Context Standard Term Contracts and Electronic Communications
Offer and acceptance rules analysis are traditionally applied in contract law determine the existence of an agreement between two parties. The agreement between the parties is comprised of an offer indicated by one person (“offeror”) to another (“offeree”). In this case, the offeror should be willing to engage in the contract on specific terms without negotiation. The existence of the contract starts once the offeree communicates the acceptance of the offer to the offeror. The formula of offer and acceptance was formulated in the nineteenth century and it is used to identify a formation moment when the parties agree on the same condition.
Offer is referred to as an expression of desire to contract on specific terms which are made intentionally to become a binding after the person to whom it was addressed accepts it. It can also be defined as the statement of terms that the offeror is ready to be bound with. Acceptance requires that both parties should have engaged in conduct that manifests their assent in subjective perspective.
The traditional approach that is applied in contract law is involves analyzing contract formation in terms of one party doing an offer and the other one accepting the offer. It has been argued by some scholars that not all contracts are analyzed in terms of offer and acceptance. They instead argue that one should focus on correspondence and the parties conduct as well as the parties’ terms of agreement Contracts which can not be analyzed in this perspective of offer and acceptance are said to be exceptional. Some critics have argued that the principles of offer and acceptance have a marginal relevance in business conduction. Different rules that are related to contract formation appear inform technical and schematic contract law. Practically, the law can adopt a fair and flexible pragmatic approach. Although most contracts are made using the offer and acceptance process, some agreements cannot be explained fully using the traditional approach. There are cases that may proof hard to reconcile using the traditional approach and they include contract not resulting from parties’ agreement. The court may imply a contract in the bases of public policy or on the bases of expediency which makes it difficult to analyze.
Standards term context.
Generally contractual terms are settled using two methods that is by express negotiation and standard terms. English law when contrasted with other legal systems uses the analysis traditional offer and acceptance in cases of standard terms.
In this context, there is the use of two types of rules in adjudication of the battle of forms. Battle of forms refers to situation where and placement of an order expresses standard terms of the supplier accepted on standard terms of the buyer. The first rule is the “last shot” rule which argues that incase of exchanged conflicting communications each is handled as a counter offer. Thus in this case the consequences of the contract are in form of final document of a series. The second rule is “knock out” rule which provides effect to the terms common to conditions of both parties. It does not depend on the matching acceptance of the offer and the acceptance.
The first method of rule results to an all or no outcome at all. If there is an objective matching of offer and acceptance, the contract thus fully incorporates the terms and conditions. If perfect match does not exist then none of the set terms can be incorporated even if there exists similar terms between two proposal sets. The second method of knock out rule gives effect to the existing terms of agreement while ensuring that terms which are not agreed upon have not been incorporated. Though the knock out rule is largely applied in civil law systems, the English law promotes traditional last shot rule in offer and acceptance analysis. In analyzing standard terms used in the English law, there comes with it the potential that they will fully be incorporated but not diluted by negotiation. However they may not always incorporated.
During the formation of the contract, both parties should be sure they are fully protected incase of any dispute. It is important to make sure that last shot has been fired before the contract is concluded. The supplier is always in a better position to gain this by using an acknowledgment which is properly worded accompanied by goods delivery. Buyers need to be cautious that they do not overlook the acknowledgement of orders referring to the terms of the supplier. They should not also accept goods which they have not verified that they match their terms and conditions.
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