An offer is a willingness to be bound to a contract on certain terms. A unilateral offer specifically is when “one party, known as the offeror, makes a promise in exchange for an act”1 An example of this would be an advert which doesn’t simply just display something for sale but makes a precise guarantee like in the case of Carlill v Carbolic Smoke Ball Co2. Williams v Carwardine3 also shows that a reward is a form of a unilateral offer, as the offeror said £20 would be given to anyone who could produce information about a murder.
In a unilateral offer acceptance is based on conduct as it happens when someone carries out the actions set out in the offer and a reasonable person could see it be a form of acceptance. Although acceptance is solely based on the performance of the offeree, if they are not aware of the offer while doing the act then acceptance is void ‘R v Clarke4. Another element to do with the acceptance of unilateral offers is that the real motive/intent for carrying out the actions of the offer is irrelevant if the person knew of the initial offer.
The last aspect of a unilateral offer is how and when an offer can be revoked. When an offer has been made to the world the revocation must be of equal publicity as the offer was itself ‘Shuey v US’5. Meaning that the information should be just as accessible. The modern-day view on when to revoke an offer is based on ‘Errington v Errington’ 6which tell us that the offeror must give a reasonable amount of time for completion before revocation. This is interpreted to mean that an offer cannot be revoked once the requested performance has started however, if the offeree is taking an unreasonably long time then revocation can take place.
To advise Dougal on whether he has the legal authority to sue Crivendoe Catering (CC), it must first be established that there was a binding contract. A contract is an agreement which highlights the obligations to be carried out by the parties involved that is then enforced by the law. For an agreement to be enforced there must be an offer and acceptance. An offer is an “expression of willingness to enter into a contract on certain terms with the intention of being bound once it is accepted”. In Dougal’s circumstance an offer is made apparent as it has been explicitly communicated that he will get paid £60 to provide CC with 50 meals per week at the required deadline. Acceptance is a “final and unqualified expression of assent to the terms of an offer”. Similarly, to an offer acceptance is also shown through communication as Dougal is said to have agreed and stayed true to his word. From the evidence at hand it is fair to say the possibility of there being a contract between Dougal and CC is likely.
The main issue of contention which could limit the basis of Dougal’s reasoning for taking legal action is the component of consideration, as a mere agreement is not enough to constitute the foundation of a contract. Consideration means an exchange were both parties are promising to do something for the other and there are three principles which negate whether a promise can become an effective contract. The first principle is the ‘exchange’ and ‘request’ requirement. This means that there must be an exchange were one party has to carry out an act that has been expressly or implicitly requested by the other Re Cory7. This is apparent as Dougal has been directly told to prepare 50 meals every Tuesday in exchange for a payment of £60, therefore consideration has been sufficed. The second principle says that past consideration is not sufficient for good consideration. If the form of consideration by Dougal had been done before CC promised to pay him then it would not count as consideration. However, seeing as Dougal had carried out the act of preparing meals because of CC’s promise it would be consideration. The last principle, which is consideration does not need to be ‘adequate’ but must be ‘sufficient’ will ultimately decide if there is consideration for a contract. Adequacy in a legal context means fairness in relation to what is being promised the law however, does not concern itself with this. The sole requirement is that the consideration be sufficient which means of some value Thomas v Thomas 8. To be of some value, the consideration must be tangible which in this case a payment of £60 is. The second way consideration can be of some value is if the promise doesn’t arise in conjunction to a pre-existing contractual duty. For Douglas this requirement puts him in a position of uncertainty as the promise made by CC was to perform a duty he was already entitled to complete under another contract. Before this new agreement between the two party’s there was a previous one which required Dougal to do the same thing but get paid £50 instead of £60. The reason this would not be supported by consideration based on a pre-existing contractual duty is because Dougal is not requested to do any more than what he was meant to do initially Stilk v Myrick9. This makes Dougal the underdog as if he does attempt to sue, CC can argue that there was in fact no contract at all between them due to a lack of sufficient consideration, so paying him £50 would not be a breach.
Despite this setback in Dougal’s potential case he can be advised that he may still have the upper hand due to the rules based around the idea of practical benefit (PB). The facts of the Williams v Roffey case can be pragmatically applied to Dougal’s scenario. What this case tells us is that consideration is supported if the offeror has gained a PB so any pre-existing contractual duty preventing sufficient consideration is irrelevant. Applying this to Dougal, if CC did not make the promise to pay him more money by reason of fraud or economic duress by Dougal and there was a PB. Which in this case would have been the fact that Dougal kept working so they did not have to go to the trouble of looking for a new sub-contractor and ultimately, they avoided having their 6-month contract with Sessex County Hospital unrenewed. These benefits to CC would then be considered as sufficient consideration, therefore allowing the promise to increase Dougal’s pay to become an enforceable contract.
To conclude from all the facts given and the application of the criteria about the formation of a contract to Dougal’s current situation it should be advised that he does in fact have legal grounds to sue CC if they refuse to supply him with the correct payment of £60. This is because a clear contract which has elements of both an agreement and consideration has been put in place. Hence not adhering to these agreed terms would be a breach warranting the need for civil action.
Breach of duty is the second crucial element in the tort of negligence and looks at whether a defendant’s actions fell below the standard of care that is imposed by law. To assess this question breach of duty can be broken down into two elements. The first being standard of care which looks at the quality of care needed to be given and secondly whether there has been a failure to reach that standard which would then lead to them being negligent. The standard at which someone is judged at is always objective, as there is a default standard of that of a reasonable man. The reasonable man is only hypothetical and helps to put the objective test in place. L.J Greer describes the reasonable man as a “man on the Clapham omnibus” simply meaning an everyday man. To decide if someone has failed to reach that standard the four risk factors must be assessed. One of the factors investigates the foreseeability of harm in other words focuses on the likelihood of an injury for example in the case of Bolton v Stone10 there was no breach as a ball had only been hit that far out of the ground six times in the last 30 years. The Second factor is Magnitude of risk Paris v Stepney Borough Council 11which looks at the seriousness of the injury. Thirdly, practicality of precautions which means what could have been done to prevent the damage Latimer v AEC Ltd 195312. The usefulness of the defendant’s actions is also another factor that must be considered, if they were acting in a useful way which then caused the damage then there is no breach Watt v Hertfordshire 13.
Baron Alderson in the case of Blyth v Birmingham Waterworks Company established a famous definition of negligence, focusing heavily on the reasonable man aspect of breach of duty. He says that the reasonable man being objective means that a defendant’s characteristics are not taken into consideration meaning no matter how hard they try they can still be negligent. The case of Nettleship v Weston14 supports this opinion as it shows how the inability to understand a defendant’s incompetence can lead to an unjust outcome. As in this case even though Weston was a learner and was driving to the best she could with the little skill she had, she was still subject to the standard of an experienced driver. Relating back to the statement this supports Baron Alderson view as it shows how the objectivity of the reasonable man test can limit the law as justice might not always be served to those who need it because of the law judges people against impossible standards.
However, Alderson’s statement can also be discredited as it can be said that the law does put people up to the standard of their best selves to say that no matter if a defendant is doing their best they can still be found negligent is not representative of the law. This is because the law can recognise and account for the fact that different groups of people may adhere to different types of standards. Within the reasonable man assessment there are three special standards of care. The first being children. In the case of Mullin v Richards15 the school girl was not found to be in breach of her duty due to the fact that she only had to meet the standards of ‘reasonable 15 year old school girl’16. The second is that the standard of care can drop for someone who has a mental or physical infirmity like in Mansfield v Weetabix17. Lastly the standard of care would increase form that of an ordinary man to an ordinary professional Bolam test 18. If Alderson’s view is to be true, then the defendants in the cases mentioned would have been found in breach at the standards of an ordinary man.
2 Carlill v Carbolic Smoke Ball Co 1891-94 All ER Rep 127
3 Williams v Carwardine (1833) 172 ER 1101
4 R v Clarke (1927) 40 CLR 227 (Aust HC)
5 Shuey v US
6 Errington v Errington and woods 1952 1 KB 290
7 Re Cory (deceased) Cory and Another v Morel and Others – 1955 2 All ER 630
8 Thomas v Thomas 1842, 2QB 851
9 Stilk v Myrick 1809 2 CAMP 317
10 Bolton v Stone 1951 AC 850
11 Paris v Stepney Borough Council 1951 101 L Jo 77
12 Latimer v AEC Ltd 1953 2 All ER 449
13 Watt v Hertfordshire CC 1954 1 WLR 835
14 Nettleship v Weston 1971 3 All ER 581
15 Mullin v Richards 1998 1 All ER 920
17 Mansfield v Weetabix 1998 1 WLR 126
18 Bolam v Friern Hospital Management Committee 1957 2 All ER 118