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  1. Whether any contract is formed. If so, when it was formed and who were the contracting parties?

  2. Bernard’s legal position and remedies.

  3. Charleen’s legal position and remedies.

  4. Damien’s legal position and remedies.

  5. The various Alternate Dispute Resolution options Available and the pros/cons with these options. 

In order to make a valid contract in law, it is necessary that there must be an established agreement which has the enforceability of law. An agreement is established by the parties when there is a valid offer which is supported by valid acceptance. The agreement must then be combined with a valid consideration along with the party’s legal intention and their capacities.  (McKendrick, 2012)

Thus, the main elements of the contract are:

  1. Offer - An offer is the starting of any contract. When the offer sends his proposal with specified terms and conditions to the offeree and hopes that the terms mentioned by him will be implemented by the offeree then it is an act of offer.

Invitation to treat – An invitation is an act wherein the inviter does not make offers rather he invites offer by making auctions, advertisements, tenders, etc. The proposals which are received by him through public is an offer (Partridge v Crittenden, 1968).

Unilateral offer  - When the proposals are made not in the form of an invitation but the terms of the proposal are such that it does not require mutual exchange of promises to make an agreement, rather, when an offer is made and the same specifies the mode of acceptance and there is no need of communication of acceptance, then it is an act of unilateral offer (Carlill v Carbolic Smoke Ball Company, [1892] ). (Peel & Treitel)

  1. Acceptance - When the approval is given by the offeree to the offer so received by him, then, it is an act of acceptance. An acceptance must be the mirror image of the offer in order to hold it valid in nature. Also, an acceptance must be made only by the person to whom the offer is meant. An acceptance by some other person is not valid in law (Felthouse v Bindley, 1862).

Counter – offer – when the offeree does not make an acceptance rather while making the acceptance when the terms of the offer are varied then it is an act of counter offer and it cancels the original offer so made. The only offer that is considered to be valid is the new counter offer that is made. Supply of information is not an offer and is held in (Harvey v Facey , [1893] )

  1. Consideration –The promises that are exchanged amid the parties must be supported with some benefit which makes such promises enforceable in law and is called consideration (Shiels v Drysdale , 1880)

  2. Legal intention - When the parties enter into any contract then it is necessary that they must have legal intention to be bound by such contract. if there is no presence of legal intention then there can be no contractual relationship amid the parties.

However, as per (Balfour v Balfour, 1919), it is assumed that the parties who are in domestic or social or family relationship do not intend to be bound by any contractual relationship. However, this presumption is rebuttable by laying down evidence and as rightly established in (Jones v Paddnvaton, 1969).  

Likewise, the parties who are in commercial relationship is presumed to be in contractual relationship unless evidence is laid otherwise.

  1. Capacity of the parties - The parties who are making offer and acceptance must be capable to enter into the contract. The parties are considered to be capable when they are not minors and when they are in their mental capacity. In (Nash v Iman , 1908), it was hold that minors are not capable to make contracts.

Alan is a student of Kaplan Higher Education ad decided to sell his textbook. On 1st November 2015 he posted an advertisement on Facebook specifying that he intends to sell his book and notes to all his friends who are the students and who are enrolled in Kaplan Higher Education for a price at $200. Any person who is interested must pay him the price before 5th November 2015.

Application

Now, as per the leading case (Partridge v Crittenden, 1968), the advertisement is an invitation to treat and thus any person who is interested in the advertisement must make an offer. But, at times the advertisements are treated as unilateral offers wherein the advertiser submits his offer and also specify the mode of acceptance. Once the mode is complying with then there is deem acceptance.

Now, an advertisement is posted by Alan wherein he specifies the mode of accepting the payment. Thus, an offer is made by Alan and who so ever comply with the mode of acceptance, that is, pay Alan the money before 5th November then there is an agreement with such party.

1. Charleen’s Case

Charleen is the younger sister of Alan and she is still completing O-level. This implies that she is still a minor. Thus as per (Nash v Iman , 1908), she is still a minor and thus is not capable to make a valid contract with Alan.

However, on 2nd November morning Charleen asked that she is intended to buy the book. Alan though and nodded to the offer of Charleen, but, at that time he was thinking about his favorite football team. It is submitted that the offer must be accepted with an intention to accept the offer.

Further, the relationship of Charleen and Alan is of sister-brother, thus, they are sharing a domestic relationship. As per Balfour v Balfour, it is assumed that Charleen and Alan are in family relationship and thus cannot be in contractual relationship. However, if evidence can be laid otherwise, then, they can be in contractual relationship.

Thus, there cannot be any contractual relationship amid Charleen and Alan as Charleen is minor and there is no legal intention amid the parties to establish a contract amid them.

2. Bernard’s Case

Bernard is the friend of Alan and thus the invitation/offer is meant for the friends of Alan, so, Bernard is eligible to accept the offers to Alan. Now, based on the invitation of Alan, Alan made an offer of $ 200 by posting an advertisement on his facebook page. However, Bernard did not accept the offer of Alan but rather made a counter offer to buy the book at $ 150. Thus, as per Hyde v Wrench, the counter offer by Bernard has cancelled the offer of Alan. It is only when Alan accepts the offer of Bernard that there will be a contract amid the parties. However, Alan submitted that he is willing to sell off the books only at $ 200 and he is not willing to accept the offer of Bernard as there are offers in place.

Charleen’s Case

Thus, the offer that is provided by Bernard is not accepted by Alan. Now, no acceptance can be made by Bernard regarding the initial offer made by Alan as there was no offer that is made by Alan after the revocation by Bernard. So, the action of Bernard of posting $ 200 on 4th November to Alan is of no significance.

Thus, there is no concluding contract amid the parties.

3. Damine’s Case

Damien was not on the facebook fried list of Alan. Thus, the offer that is made by Alan is not meant to be for Damien. He heard of the offer through Bernard. Damien after obtaining the number from Bernard sent a message to Alan wherein he desired to buy the material and is willing to provide with the money on 4th November 2015.

Once this is an independent act of Damien, thus, an offer is made by him to Alan. If Alan accepts the offer then there is a binding contract amid the parties. Damien on 4th November meets Alan at the university and handed over the money to him which was duly accepted by Alan. Thus, the offer made by Damien was accepted by Alan and thus there is a binding contract amid the parties.

Conclusion

Charleen: There is no contract amid Alan as Charleen is minor and thus is incapable to enter into the contract. Also, since they are in domestic relationship thus, it is presumed that cannot be in contractual relationship unless otherwise proved.

Bernard: there is no contract that is established amid Bernard and Alan as the offer that is made by Alan is rejected by Bernard by making a counter offer. The after acceptance by Bernard is of no significance as such an acceptance is made against an offer which is no more valid.

Damien: there is a valid contract with Alan when he accepted the money of Damien on the evening of 4th November 2017.

  1. V) Alternative Dispute Resolution

An Alternate Dispute Resolution is a dispute resolution method wherein an independent third party resolves the dispute and is not litigation, thus, does not involve the interference of courts. Litigation is highly time consuming and is very expensive and thus an alternate method is approved which resolves the presence of independent third party mutually decided by the parties to the dispute to resolve the dispute. (Tan, 1999)

The main advantages of Alternate dispute resolution technique are:

  1. As compared to litigation it is less expensive and much faster;

  2. That parties to the dispute have the opportunity to tell their part of the story as they visualise  the same;

  3. It is not formal when compared with litigation;

  4. It is much flexible and must responsive  and is catered after considering the needs of the parties;

  5. The process that is involved is much confidential;

  6. There are chances that the conflicts will not escalate much.

The main disadvantages of Alternate dispute resolution technique are:

  1. At times there are too much of informality that is involved in the process of dispute resolution;

  2. It is not much popular with lawyers as there is not much financial interests;

  3. This process is not much popular when the disputes are crimes or public wrong;

The two most common kinds of alternate dispute resolution techniques are:

  1. Arbitration – It is a dispute resolution technique where an independent neutral person decides the dispute amid the party. The decision of the arbitrator is binding upon the parties and the parties cannot go to the court of law against the decisions of the arbitrator. The parties may decide the rules with which they need to be bound by the arbitration procedure.

  2. Mediation – The process of mediation is also one of the techniques of dispute resolution, however, the decision is not binding and the parties may refuse to abide by the decision of the mediator. However, the process is still considered to be better than the process of litigation as it is much faster and cheap.

Balfour v Balfour (1919).

Carlill v Carbolic Smoke Ball Company ([1892] ).

Felthouse v Bindley (1862).

Harvey v Facey ([1893] ).

Jones v Paddnvaton (1969).

McKendrick, E. (2012). Contract Law: Text, Cases, and Materials. OUP Oxford.

Nash v Iman (1908).

Partridge v Crittenden (1968).

Peel, E., & Treitel, G. H. The Law of Contract. Sweet & Maxwell.

Shiels v Drysdale (1880).

Tan, K. (1999). The Singapore Legal System. NUS Press.

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