Martin Kearns. Legal English
Legal English: The Law of Contract
Sessions 1 & 2
Profesor: Martin Kearns, martin.kearns@ireland.com
Law of Contract
Moot
A moot is a legal problem based on a set of facts on which two teams debate and argue for
their side of the case. It offers an opportunity to use the law they have learned in order to
argue for one side or the other.
Stage a moot on the problem which follows. To do this you will need to select two members
of your group to present the plaintiffs case and two members to present the defendants. You
should ask your teacher or a member of the legal profession to act as a judge. If you are
working on your own, prepare written arguments for both sides of the case.
You will prepare for the moot in a similar way to a debate but also using the problem
question technique:
1. Identify the areas of law on which you will need to base your arguments.
2. Reread your case notes very carefully, analysing the relevant case law.
3. Prepare an argument in favour of your client supported by case law – you may quote
relevant passages from any judgement.
Note: The following is a simple moot problem in the law of offer and acceptance with the
main details of relevant cases included after the facts of the Moot problem.
Case facts for Moot
At 10.00 a.m. on Monday, June 5th, Mr.Unlikely, the managing director of Toffscars Ltd.,
sent a telex to Mr. Faulty, a regular customer, offering to sell him a rare vintage car for
50,000 Euros. On receiving the telex Mr. Faulty immediately writes a letter of acceptance to
Mr.Unlikely which is posted at 1.00 p.m. Mr. Faulty puts a incorrect address on the letter and
it never arrives. Worried that the letter may be delayed in the post and that he didn’t address
it correctly, Mr. Faulty subsequently sends a telex accepting the offer at 9.00 a.m. on Tuesday
morning, June 6th.
Mr. Unlikely is late arriving at work that day and fails to notice the telex. During the day he
receives another offer of 60,000 Euros for the car from Mr. Sober .
Martin Kearns. Legal English
He telexes a revocation to Mr. Faulty at 5.30 p.m. on the evening of June 6th knowing that
Mr. Faulty’s office is closed between 5.00 p.m. and 9.00 a.m. Mr. Faulty receives the
revocation telex at 9.00 a.m. on Wednesday, June 7th. Mr. Unlikely receives Mr. Faulty’s telex
at 9.30 a.m. on the same day, June 7th. Mr. Unlikely refuses to sell the car to Mr. Faulty, who
is now suing him for breach of contract.
Now prepare your legal arguments supported by case law for either:
The plaintiff Mr. Faulty or the defendant Mr. Unlikely
Note STUDENT A plays the part of the plaintiff Mr. Faulty while STUDENT B has to
defend Mr. Unlikely.
Relevant Case Law
Byrne v. Van Tienhoven (1888)
On the 1st of October the Defendants posted a letter to the Plaintiff company in New York
offering to sell a 1,000 tin plates.
Subsequently on the 8th of October they posted a letter revoking this offer.
On the 11th of October the Plaintiffs telegraphed their acceptance of the Defendant’s offer
and confirmed this in a letter of October 15th.
On the 20th of October the Plaintiffs received the Defendant’s letter of revocation.
The court held that the revocation of an offer is not binding until the date it was brought to
the notice of the Plaintiff in New York, i.e. on October 20th. Revocation is only effective
when received by the offeree and in this case the revocation was inoperative until the 20th of
October. So the offer had been accepted by the Plaintiffs.
Martin Kearns. Legal English
Adams v Lindsell (1818)
D wrote to P offering to sell some wool, and asked for a reply “in course of post”. This
offer was delayed two days in the post, and consequently P’s acceptance was late in coming
back. On the day before it arrived (but after it had been expected), D sold the wool
elsewhere. The court said P was entitled to damages: his acceptance was complete when his
letter was posted, before the wool was sold to the third party.1
Entores v Miles Far East [1955] 2 All ER 493, CA
PP in London sent an offer by Telex to DD in Amsterdam, and the offer was accepted by
Telex. For technical reasons it became important to know where the contract had been
made. The Court of Appeal said it had been made in London: the postal rule applies only to
ordinary letters. The sender of a Telex message knows almost immediately whether or not it
has been received, so there is no period of uncertainty requiring a special rule.
By analogy, it would seem that the same should apply to Fax messages, but the status of
telephone answering machines has yet to be determined. Entores suggests that acceptance
should take place only on receipt of the message, but it seems wrong that the acceptor
should bear the risk of a faulty receiving machine or negligence on the offeror’s part. Can it
be, as some writers suggest, that a telephone answering machine is to be regarded as the
subscriber’s agent for the receipt of the messages?
Tenaz Steamship v The Brimnes [1974] 3 All ER 88 ,CA
An offeror sent by Telex a notice of withdrawal; it was sent at around 5.45 pm one
afternoon but not read until the next day even though the receiving office had been staffed
until 6.30 pm. The Court of Appeal agreed on the facts that the withdrawal was effective
from its arrival, but differed as to the legal rule to be applied. Megaw LJ said that if a notice
arrives at the address of the person to be notified, at such a time and by such means that it
would in the normal course of business come to his attention on its arrival, he cannot rely on
his own or his servants’ failure to act in a businesslike manner to postpone the effective time
of the notice. Cairns LJ, however, felt that the sender should not rely on the recipients’
reading every communication at once, and that in some circumstances a notice arriving late
in the working day might quite legitimately not be “received” until the following morning.
Brinkibon v Stahag Stahl [1982] 1 All ER 293, HL
AA in London sent a telex to RR in Vienna accepting RR’s offer and terms of sale, and
subsequently had to sue for breach of contract. The Court of Appeal said the claim must be
set aside because the contract had been made outside the jurisdiction (i.e. in Vienna), and the
House of Lords agreed. Lord Wilberforce said there was no general rule that could cover all
the possible situations that might arise with the use of Telex machines: each case must be
1
The postal rule is that where acceptance by post has been requested or where it is an appropriate and
reasonable means of communication between the parties, then acceptance is complete immediately the
letter of acceptance is posted, even if the letter is delayed, destroyed or lost in the post so that it never
reaches the offeror.
Martin Kearns. Legal English
resolved by reference to the intention of the parties, to sound business practice, and in some
cases to a judgement as to where the risks should lie.
Re London and Northern Bank (1900)
Here the letter of acceptance has not been properly posted then the court held that the
postal rule will not apply.