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On The 1st Of May Arnold Offered By Email To Sell His Car To Bertha For £10,000 And That He Would Send His Wife To Bertha’s House On The 8th Of May To Receive Bertha’s Reply.....

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On the 1st of May Arnold offered by email to sell his car to Bertha for �10,000 and that he would send his wife to Bertha's house on the 8th of May to receive Bertha's reply. On the 6th, Bertha sent an email to Arnold saying, `Would like to have the car. Can you offer a six-month guarantee against mechanical breakdown?'

On receiving the email the same day Arnold sold the car to Christopher and sent a messenger with a note to Bertha's house to tell her of this.

Before this note arrived, Bertha changed her mind about the need for a guarantee and posted a letter to Arnold accepting the latter's offer. This letter was lost in the post.

Advise Arnold.

Although already bound to sell the car to C, A is still liable to B if a contract, that is, an agreement supported by consideration and the intention to create legal relations in the absence of any vitiating factors, has been formed to sell the car to B.

The elements are clearly satisfied, except for `agreement', which's formation between A and B requires the making and communication by one of an offer and an acceptance by another and the lack of any revocation of these intentions. B will likely assert A's email to be an offer to sell his car. An offer is `an expression of willingness to contract on specified terms, made with the intention that it shall become binding as soon as it is accepted by the person whom it is addressed' (Treitel, The Law of Contract, 9th ed, p8). What the court wants to find is A's intention to be bound, but they can only infer this objectively from the words or expressions he used (Gibson v MCC). On one hand A's expression shows the required intention - he stated his price, even stipulated his wife as the mode to accept and that his wife was to plainly `receive B's reply' shows he was not planning for any negotiation. On the other, arguably it could be an expression of willingness to enter into negotiations, that is, an invitation to treat (Storer v MCC), since his words could mean `I am thinking of selling my car for 10,000 and my wife will drive the car around to your house on the 8th for your inspection and offer'. On balance though, A's email is more like an offer. To the reasonable man it should sound more like two collateral offers - one to sell the car, the other to keep it open until the 8th.

Assuming Arnold made an offer, the next question is whether B's email on the 6th is an acceptance. An acceptance is "a final and unqualified expression of assent to the terms of an offer" ( Treitel p16). Just as for an offer, the courts will infer B's unqualified assent to the terms from her words or expressions. A could argue that, objectively reading, because of the question about the guarantee, B's words `would like to have the car' could have been only an indication of interest but not assent to A's terms, since she definitely would not have...

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