(i) of the agreement as the acceptance of the

(i)                        
 

A unilateral offer is defined by the legal information
institute of Cornell Law School as ‘an offer than can only be accepted by
performance’1.
This means that the offeree does not need to express his or her acceptance of
the offer to the offeror, he only needs to perform the mentioned conditions in
order to fulfill his part of the offer. This is called an acceptance by
conduct.  A unilateral offer can be an
advertisement, an oral agreement between two parties, or a written one. The
offeree is not under any obligation to fulfill his part of the agreement as the
acceptance of the unilateral offer begins with the performance of the
condition.

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For instance, the first and most famous case of Carlill v Carbolic Smoke Ball Co.2
set the precedent. The company made an advertisement guaranteeing the
efficiency of their product swearing that those who were using their smoke ball
would not get influenza and offering to pay the ones who would contract it even
while using their product. Mrs. Carlill used it and nonetheless got sick. She
asked for the money which they refused to pay leading to the trial. The company
claimed that there were no contract between the two parties and so that they
were not under any obligation to fulfill their advertising promise since they
did not mean for it to be legally binding. However the court ruled that this
was indeed a unilateral offer and that Mrs. Carlill had by fulfilling her part
of the offer created a contract. One could also mention the Lefkozitz v the Great Minneapolis Surplus
Store3
case in which a store promised to sell to the first person to arrive a coat at
a cheaper price but refused to sell it to Mr. Lefkowitz claiming the offer only
concerned women. Lefkowitz sued and won. Indeed he had fulfilled his part of
the offer, being the first one to arrive and there was in the advertisement no
mention of it being only meant for women. This case shows that the offeror is forced
to respect his offer if the offeree performs the condition and no conditions
were mentioned.

The possible revocation of a unilateral offer has been
ruled by the Daulia Ltd v Four Millbank
Nominees Ltd4.
In this case, Daulia Ltd wanted to buy a house from Four Millbank Nominees
Ltd. It was orally agreed that the sale would carry on if Daulia Ltd was to
sort out the financing of the buy with his bank and brought the contract to the
offeror. That it was Daulia Ltd did but Four Millbank Nominees Ltd withdrew his
offer and refused to carry on with the sale. It was ruled that once the offeree
had started the performance of his part of the contract, the offeror could not
revoke his order. Here, Daulia Ltd having contacted his bank and found the
financement, Four Millbank was not allowed to revoke his offer.

 

 

(ii)                      
 

Crivendoe Catering and
Dougal are under a bilateral contract. Indeed, Dougal promised to Criendoe
Catering to deliver the meals at a set date in exchange for that, Criendoe
Catering promised to pay Dougal £50 a week. 
Dougal has trouble respecting the deadline, Crivendoe Catering afraid of
losing its contract to Sessex County Hosital, offers a raise to Dougal if he is
able to meet his engagement. At te end, Dougal succeeds but Crivendoe Catering,
financially struggling refuses to raise Dougal. To know what Dougal should do,
we will use the example of two cases: Stilk
v Myrick5
and Williams v Roffey Bros &
Nicholls Ltd6.

In the Stilk v Myrick case, in 1809, a ship saw
two of his sailor deserting. The captain of the ship promised to the sailors
left that if he was unable to find replacements at the next stop, he would pay
the remaining sailors the two deserting sailors’ wage between them. The sailors
agreed to that and the ship reached its final destination. However, once
arrived, the captain refused to pay the sailors more that their original wage.
The sailors argued that the captain had promised that raise in exchange of
their work. However the defendant had a few arguments. First it was usual
during trips that sailors would die or desert and sailors had to compensate
that lost without any financial compensation. The defendant also supported the
thesis that acceding to this demand would create a precedent that would cause
sailors to demand raise every time one left or died and that it would result in
demands the captain would not be able to refuse. It is also worth mentioning
that only two sailors left, meaning that the work that had to be done by the
remaining ones was not too great for them.

It is in the case that the principle of performance of
an existing duty was established.  This
principle is defined by the Merriam Webster website as ‘a party’s offer of a
performance already required under an existing contract is insufficient consideration
for modification of the contract’ meaning that the sailors did not exceed the
performance of their contract and so should not receive a raise of their wages.

This can be applied in the case of Dougal for Crivndoe
Catering offered a raise to Dougal because he feared that the latter would not
meet his deadlines but Dougal by succeeding to meet them only respected his
part of the contract.

However, it is important to also look at the Williams v Roffey. In this case, the
plaintiff worked as a carpenter for the defendants. He encountered trouble
finishing the work because his pay was too low to work efficiently. The
defendants promised orally to give him more money for each flat e finished.
However, when he finished 8 flats, the defendants did not give him the entire
sum they should have.

The plaintiff, Williams sued them for the rest and
obtained the money. It was held that :

“(1) that where a party to a contract promised to
make an additional payment in return for the other party’s promise to perform his
existing contractual obligations and as a result secured a benefit or avoided a
detriment, the advantage secured by the promise to make the additional payment
was capable of constituting consideration therefor, provided that it was not
secured by economic duress or fraud …. It resulted in a commercial
advantage to the defendants; that the benefit accruing to the defendants
provided sufficient consideration to support the defendants’ promise to pay the
additional sum; and that, accordingly, the agreement for payment of the
additional sum was enforceable (post, pp. 15G-16B, C, G, 19B-E, 23A-D)”7

This means that the plaintiff could reclaim his money
for he brought a new consideration to the deal. Indeed, him finishing the deal
allowed the defendants to honour finish their building in time and while the
economic situation was still good and avoided them to look for a new carpenter.
This was enough consideration to enforce the payment.

This can be applied in Dougal’s case for him finishing
the meals on time allowed Crivenhoe Cattering to keep his contract with the
Sussex County Hospital and to have their meals paid £7 instead of £5.

Because of this last case, we can advise Dougal to
remind that precedent to Crivenhoe Cattering and demand his raise and if the latter
do not comply to bring the issue to court since it is his right to be pqid the
promised wage of £60 per week.

 

Part B

The key feature of negligence is not how the person
acts but whether or not the defendant had a duty of care, if he had to prevent
harm from happening to a person. Duty of care is also known as the “Neighbor
Principle”, which is as stated Lord Atkin “… take
reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour”. The neighbour is someone you
interact with and on which your actions have consequences.

For instance, in the Donoghue v Stevenson, Donoghue was offered a bottle of alcohol by a
friend in which remains of a snail were found only after she had consumed it. The
victim suffered gastroenteritis. The company that sold this bottle had a duty
of care. It was indeed stated in the appeal by the house of Lords that “that the
knowledge that the absence of reasonable care in the preparation of the
products was likely to result in injury to the consumer’s life or property,
the manufacturer owed a duty to the consumer to take reasonable care”8.
This means that even if the defendant did not mean to breach his duty, did by
selling something not fit for consumption. Here Baron Alderson’s words apply
since the manufacturer “he may do the best he can and still be found negligent”:
he never meant lo let a snail into one of his bottles but did and that makes
him negligent.

However, in the Michael v Chief Constable of South Wales
Police9, the police were not found negligent
even if they had made a mistake that allowed the killing of the victim by her
ex-husband. The victim had called them, stating that she was threatened by her ex-husband
and the police were unable to arrive. However because of the not close
proximity, the private law duty of care could not be implied since the duty of
the police is towards a large number of people. “In general, English law did
not impose liability for injury or damage caused by a third party”10.
This could seem surprising as some could argue that it was the duty of the
police to protect citizens.

Those two cases show that Baron Alderson was both
right and wrong. Negligence is not only based on the person’s actions but also
on the duty of care and whether there was not. Indeed, in the latter case, the
police did “the best they could, failed and were not found negligent because
there had not been any duty of care.

 

1 Cornell Law School

2 1892 2 Q.B. 484 

3 1957 86 NW 2d 689

4 1978 2 W.L.R. 621

 

5 1809 170 E.R. 1168

 

6 1990 2 W.L.R. 1153

 

7 Court of Appeal, 1990 2
W.L.R. 1153

 

8 Case analysis of Donoghue v
Stevenson, House of Lords, 26 May 1932

9 2015 UKSC 2

10 Case analysis of Michael v
Chief Constable of South Wales Police, Supreme court, 28 January 2015,

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