MATRIC NO: 17/40IA044
COURSE CODE: BUL 201 ( ASSIGNMENT)
In a law of contract class; the lecturer, Dr Ariyoosu asked the students to
define certain terms of a contract with a promise to give the student who
got it 5 marks. Olujimi Sammy first answered the question correctly. The
lecturer however reneged on his promise by his refussl, neglect and failure
to award the 5 marks to Sammy. With your knowledge of the law of
contract, examine the legal implications of the promise as Sammy decides
to sue the lecturer to claim 5 marks. Support your answer with relevant
judicial authorities.
As expressly stated by Niki Tobi J.C.A ( As he then was) in the case of
Orient Bank Nig PLC vs Bilante International where a contract was defined
as an agreement between two or more parties which creates reciprocal
legal obligations to do or not to do particular things. In another definition, a
contract is defined as an agreement between two or more parties which the
courts will enforce. However, it must be mentioned that a contract cannot
come into existence except it is founded on certain fundamental terms.
Without the existence of these elements or terms, a contract cannot come
into existence. Moreso, it must be noted that juristic opinions are divided on
what are the exact number of elements of a contract. Apposite to say, three
elements are indisputable. They are Offer, Acceptance and Consideration.
A fourth element known as intention to create legal relation which is not
consciously contemplated by the parties can be added as stated by
Professor Itse Sagay while a fifth element known as capacity is also
regarded as a necessary element.
Therefore, for a contract to come into existence, an offer must be made
by a party who has the capacity to make such an offer and it must be
accepted by party to whom the offer is made or by his authorised agent
who is expressly or implicitly empowered to do so on his behalf. The issue
of consideration then comes in depending on the type of contract. For a
formal contract or a contract made under seal, there is no need for
consideration, however for a simple contract or an informal contract,
consideration must be proved by the offeree.
In the instant hypothetical case, Dr. Ariyoosu is the offeror who makes
an offer to the whole of the 200 level contract class to give 5 marks to the
student who can perform the express request of the offer by defining
certain terms of a contract. It must be rembered that from the definition of
an offer stated supra, it is made by a party to another. From the
hypothetical scenario, the offer made by Dr. Ariyoosu was made to the
whole 200 level contract class and to no one in particular. Can this now be
said to be an invalid offer?
The simple answer is a capital NO as the offer made by Dr. Ariyoosu
falls within the scope of offers made in unilateral contracts and is therefore
a valid offer. The validity of this answer is derived from the locus classicus
case of "Carlill vs Carbolic Smoke Ball Company" where Bowen L.J
demolished the argument of the defendant company who had asserted that
an offer cannot be made to the whole world by stating that an offer can be
made to the whole world which would ripen into a contract when anybody
among those whom it is addressed comes forward to perform the stipulated
condition. Put succinctly, Dr. Ariyoosu has made a valid offer and Olujimi
Sammy had accepted the offer with the consideration being the provision of
the answer to the question asked by Dr. Ariyoosu.
Therefore, to the layman, olujimi Sammy is entitled to the reward of 5
marks as promised by Dr. Ariyoosu. However, it must be remembered that
the elements of a contract does not terminate on offer, acceptance and
consideration alone. The intention to create legal rations therefore
becomes a vital element in this kind of scenario. Much juristic opinions
have shed light on this particular element of a contract. According to
professor Williston:
"..........The common law does not require any positive intention to create a
legal obligation as an element of contract. A deliberate promise made
seriously is enforced irrespective of the promisor's views regarding his legal
liability"
While this assertion may be true with regard to commercial contract in
which the contractual intention is presumed, it is inapplicable to social and
domestic agreements to which the contrary assumption applies (Itse Sagay:
Nigerian Law of Contract @ 113). Therefore, if two friends were to agree to
lunch together and one promises to pay for the food if other would pay for
the drinks; does a contract arises? After all, there is the presence of offer,
acceptance and consideration. Therefore, the simple answer is that the
parties never intended to enter into a legally binding obligation with each
other.
In determining domestic and social agreement, the relationship between
the parties must first be ascertained and then the content of the contract
must be examined to see if it can be negated on the basis of being a
domestic and or social agreement. Thus, if a father promises his daughter
a car if she performs well to his satisfaction in school, the daughter cannot
sue on the promise as it is only a way of the father to admonish his
daughter to face her studies. However, the position will be different if the
father promises his daughter, who is an accountant a car for an error-free
balancing of the father's accounts. Therefore, it is clear, that merely having
a father-son, father-dauhter, husband-wife relationship (Merritt vs Merritt) is
not enough to negate a contractual obligation on the basis of domestic and
or social agreement.
In the instant hypothetical case, the relationship between Dr. Ariyoosu
and Olujimi Sammy is a lecturer-student relationship. It is very normal for a
lecturer to make such promise or promises as a mere puff in order to grade
the abilities of his students.
In conclusion, while a contract may be formed upon the existence of an
offer, acceptance and consideration, the enforceability depends on the
nature of the promise between the parties involved. Therefore, it is safe to
say that Dr. Ariyoosu's promise to award 5 marks to Olujimi Sammy is only
a mere puff in order to grade the abilities of his students and he therefore
incurs no legal liability.