LAW OF CONTRACTS: Your Sword, Your Shield 1

This write up on the law of contract, can be applied to all forms of businesses although my attention is focused on the entertainment and creative industries. I hope you will read and understand. 

Note that you will still need to employ the services of a lawyer/business manager/accountant to help you go through your contract.

I proceed.

A contract can be defined as an agreement between two or more persons, to create reciprocal rights and obligations recognized and enforceable in law or as a promise or set of promises that the law will enforce.

A contract may be oral, by conduct or written.

A contract may also be express or implied. 

It is express where the terms of the contract are stated clearly in an agreement and implied when the existence of the contract is construed from the conduct of the parties.

For there to exist a binding and enforceable contract in the eye of the law, the following elements must be present:

1. Offer
2. Acceptance 
3. Intention to create a legal relationship 
4. Existence of a valuable consideration 
5. Legal capacity of the parties to enter into a contract 
6. The terms of the contract

In this post, I will explain no. 1 and 2 only. Explanations for no 3-6 will follow subsequently.

Also note that the plaintiff is the person/party that sues another person/party to court. 

The defendant is the person/party that comes to court to defend himself.
 

1. AN OFFER

 

To determine if there is an agreement between two parties, one party must have made an offer which the other party must have accepted.

An offer is a statement by one party requiring another to perform an act, on specified terms.

An offer may be made to one or more persons.

For a statement to constitute an offer, it must be precise and unequivocal, leaving no room for speculation or guess work as to what the person offering intended.

See the following scenario, in the case of:

Carlill v Carbolic Smoke Ball Co [1893] 

A Newspaper advert placed by the defendant stated:-

"£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the influenza after having used the ball three times daily for two weeks according to the printed directions supplied with each ball...

£1000 is deposited with the Alliance Bank, showing our sincerity in the matter."

Mrs. Carlill purchased some smoke balls and used them according to the directions and caught flu. She sought to claim the stated £100 reward.

The defendant raised the following arguments to demonstrate the advertisement was a mere invitation to treat rather than an offer:

1. The advert was a sales buff and lacked intent to be an offer.
2. It is not possible to make an offer to the world.
3. There was no notification of acceptance.
4. The wording was too vague to constitute an offer since there was no stated time limit as to catching the flu. 
5. There was no consideration provided since the 'offer' did not specify that the user of the balls must have purchased them. 

Held:
The Court of Appeal held that Mrs. Carlill was entitled to the reward as the advert constituted an offer of a unilateral contract which she had accepted by performing the conditions stated in the offer. 

The court rejected all the arguments put forward by the defendants for the following reasons:

1. The statement referring to the deposit of £1,000 demonstrated intent and therefore it was not a mere sales puff.
2. It is quite possible to make an offer to the world.
3. In unilateral contracts there is no requirement that the offeree communicates an intention to accept, since acceptance is through full performance.
4. Whilst there may be some ambiguity in the wording this was capable of being resolved by applying a reasonable time limit or confining it to only those who caught flu whilst still using the balls.
5. The defendants would have value in people using the balls even if they had not been purchased by them directly.

Note that an invitation to treat is not an offer. A situation of an invitation to treat arises when one party invites another party to make an offer. 

An example of an invitation to treat is an advertisement by a film producer for actors to act in a film. In this situation, any interested actor can audition for the role and then negotiate his fees with the producer who may accept or decline the offer. 

See an example of an invitation to treat in the case of:

Fisher v Bell [1961]
The defendant had a flick knife displayed in his shop window with a price tag on it. Statute made it a criminal offense to 'offer' such flick knives for sale. 

The conviction of the plaintiff was quashed as goods on display in shops are not 'offers' in the technical sense but an invitation to treat. 

The court ruled that a product displayed in a shop is an invitation to treat only and therefore has no contractual significance in the shopping process.

2. AN ACCEPTANCE

 

This is an unconditional agreement to all the terms of the offer received. Therefore, an acceptance that varies or qualifies the terms of the offer becomes a counter offer. 

For example, if a show promoter offers a singer a 50-50 deal and the singer in his agreement demands a 70-30 deal, this amounts to a counter offer. The singer has made a counter offer.

See the case of:

Hyde v. Wrench, [1840]

Wrench (D) offered to sell his estate to Hyde for 1200 pounds and Hyde (P) declined. Wrench then made a final offer to sell the farm for 1000 pounds. Hyde in turn offered to purchase the property for 950 pounds and Wrench replied that he would consider the offer and give an answer within approximately two weeks.

Wrench ultimately rejected the offer and the plaintiff immediately replied that he accepted Wrench’s earlier offer to sell the real estate for 1000 pounds. 

Wrench refused and Hyde sued for breach of contract and sought specific performance, contending that Wench’s offer had not been withdrawn prior to acceptance.

Issue

If one party makes an offer and the offeree makes a counter offer, does the original offer remain open?

Holding and Ruling

No! A counter offer negates the original offer. To constitute a valid contract there must be a simple acceptance of the terms proposed. 

Hyde rejected the defendant’s offer to sell and made a counter proposal which terminated the offer. The offer was never accepted and cannot be revived later.

Note:

An offer may be terminated in the following instances:

1. Where it is revoked at any time before it is  accepted
2. Where the time fixed for acceptance has lapsed or after a reasonable time
3. Upon the death of the person who makes the offer.
4. Also, note that a request for information does not constitute as an offer or acceptance. 

See the case of:

Harvey v Facey [1893] AC 552  Privy Council.

Harvey sent a Telegram to Facey which stated: -
"Will you sell us Bumper Hall Pen? Telegraph  lowest cash price-answer paid;" 

Facey replied by telegram:-
"Lowest price for Bumper Hall Pen £900."

Harvey then replied:-

"We agree to buy Bumper Hall Pen for the sum of nine hundred pounds asked by you. Please send us your title deed in order that we may get early possession." 

Held: 

The Privy Council held that there was no contract concluded between the parties.

Facey had not directly answered the first question as to whether they would sell and the lowest price stated was merely responding to a request for information not an offer. 

There was thus no evidence of an intention that the telegram sent by Facey was to be an offer.

To be continued..........

IRAWO: My Quest for Freedom - 3

http://www.badore94.com/

Secondary school days were spent at Lagos State Model College, Badore, Eti-Osa local government area. 

I had to settle for this school after I couldn't get admission into Command secondary school, Navy secondary school, Unity Secondary School and a Federal government college because I did not pass some interviews and in the schools that I passed their interviews, I was considered to young to get an admission. I was eager to stay in the boarding house.

A model college was my last option as I did not want to go back to my primary school for  primary six. I had already done yanga to my classmates that I would be going to the secondary school next session; that I would become their senior. Now, I will not go back there, never! 

I had wanted to attend either Kankon or Meiran but the admission officer told my mother and I that there were enough students in these schools already.

The admission officer told me to make a choice from amongst the other schools listed on the cardboard paper pasted on the notice board in his office. Igbonla and Igbokuta looked scary. I called out, “Bad ore,” and the officer corrected me, “Badore. It is called Badore.” This was how I became a student of this great school.

In Junior Secondary School one (JSS 1), I started drumming on tables and wardrobes. I later became a sort of DJ for birthday parties in school aside from social nights because we were not allowed to bring in radio at the hostel. 

In my JSS 2, I began to smuggle things into the hostel; radio, ring boiler and anything smuggable.

From JSS 1, I participated in social events; fashion parade, dance, musical drama and choral recitals. I was actively involved in sports too; march past, calisthenics, relay races (1,800m, marathon races but never 100m dash because I was not fast enough, but I was consistent). I was a member of the following clubs; arts & crafts, drama, cultural dance and sport. During sport meeting, we played volleyball, table tennis, football or we jogged.

I stepped on a lot of seniors' toes because I was bold and blunt and they hated it. When I became a senior, I did most of my chores myself. I seldom allowed my juniors to do things for me because I used to pity them. 

I used to play and gist with my juniors, mates and some seniors. We would gist, eat cold water soaked indomie and drink soak and travel garri together.I did not think that anyone was too small or too big to talk to.

Only one junior stepped on my toes. I cannot remember her name but I remembered that she was a member of red house room one and that I replied her attitude with a slap. She was coming to me to retaliate and I beat her up. She later came to apologize to me. She knew that she had gone beyond her boundary. 

I had a few toasters in my mixed school.Some teachers too toasted me whilst I was the class captain and room captain in SS 2 & 3. 

I threatened to mark them absent from classes and report them to the school authority if they persisted. All my math teachers, except Mr. Kayode, were attracted to me positively and negatively.  I wondered why. I was a pretty girl with all the curves in the right place but I was also above average in math and other subjects. There was no way that I would be going to them for extra marks, except to point out where my marks were erroneously or knowingly deducted. So, they were wasting their time.

There was in particular, our math teacher in JSS 3. Mr. Folorunso, otherwise known as, DAKOVA. 90% of the time, he would wear shirts with padded shoulders and old fashioned tight trousers, so tight that we could see the shape of his penis so much that we were able to determine what corner of his groin it was ‘packed’. 

He was a short and stout man, his tribal marks visible under his thick beard. His spoken English had a faint Ibadan accent.

On my way to the hostel after prep a couple of times, he would call out to me from his backyard which faced our JSS 3 classroom block. He would beckon to me to come and help him carry a bucket of water into his house. During this period, I had never heard of the word, pedophile else, I could have called him one. On one of these occasions, I was with my friend, Bisola Rufai. Oloshious fellow! I would eye him and walk on.

One day during math class, he asked me a question. My sit was on the front row, exactly in front of him, as I sat with my sit partner, Adanna Oji-Alala. In fact, he was resting his bulge on my desk. I stood up and could not answer the question. My honest reason; I was staring at the bulge in his trousers as he packed it neatly on my table. 

At that time, I had never seen another penis aside from my brother’s and so, I was wondering what one would look like. Before your imaginations run wild, I am a lot older than my brother and I used to bath him and wash his clothes till he was about ten years old. Also, the class before math was integrated science and we had just being taught the different parts of the male body. 

He asked me the question in the middle of my day dream. I stood up to answer a question that I did not hear. I asked him to repeat the question and he got angry and hit me on my right breast. At first, a yeeehhh! came out of my mouth and then, voila! There was evidence; a white chalk stain and the stain from the black sooth of old batteries that we used to darken our board, greeted my eyes. I did not wait any further. I marched out of the class and matched down to the staff room to lodge my complaint. 

Luckily, I met two SU (Scripture Union) teachers, Miss Ekanem and another natural hair bearing woman. I quickly reported the incident to them and showed them the evidence on my chest. They both asked me if I was sure of what I had just said and I told them that I was sure. I was only praying that they would not ask me why I could not answer the math question.

They both came to the class and asked a few girls who were witnesses to my breast battery and came to a conclusion. Later, they went to apprehend him and the next day, he came to my class to apologize to me. 

I would meet  DAKOVA in the future. He was my junior in ICAN school, when I attended lectures at PYE, Yaba. 

He would ask me to please explain some things to him in accounting. Then he would start to toast me again, telling me how beautiful I had become. 

I guess he was planning to fail his exams because I stopped coaching him, left him to his faith and avoided him completely. His shoulder pad and tight trousers style remained with him as I remember.