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a) In a letter dated 14/02/2011, the manager (Dave) of Excellent Foods (EF) outlined conditions in writing to the manager (Ben) of Safe Foods (SF) in relation to the purchase of EF. These conditions were that SF must pay the valued amount of EF, which totaled $120,000, $30,000 more than the original amount that SF had been prepared to pay and stipulated during earlier negotiations. At the time of the earlier negotiations, SF also had set a purchase requirement, which was that EF’s sales must increase by 20% over the next two months and if this requirement was met, SF would be prepared to pay the $90,000.
After earlier negotiations, EF had their business valued at $120,000 and notified SF of the valuation and that they now required this amount, not the $90,000 that SF had offered. SF did not reply to EF.
Whilst EF met the sales increase target and forwarded the record of sales to SF along with the transfer of business contract as well as a new condition of the contract being that EF require 10% of the 120,000 within 14 days, SF responded in writing stating they no longer were interested in purchasing EF. It would appear that EF are no longer interested in purchasing SF due to the $30,000 price increase and the term that they would now need to pay 10% within 14 days.
An important aspect in forming a legally binding contract is giving and receiving the acceptance of an offer. The requirement of acceptance with every binding legal contact is tied closely to the concept of unqualified mutual assent. Only when both parties have given their mutual consent does the law consider a binding legal contact to have been formed. Hence, if the offeree remains silent, their silence cannot constitute an acceptance.
Another important aspect when creating a legally binding contract is that the acceptance of the offer must exactly mirror the terms and conditions of the offeree and vice versa. If there is even a slight difference, this will most likely not constitute a valid acceptance. If an offer is made that does not mirror the terms of the original offer, than this is considered a counter-offer, which now negates the original offer.
An example of this is demonstrated in the case of Hyde v Wrench (1840) where Wrench offers to sell his land to Hyde for the price of 1200 pounds of which Hyde declined to accept. Wrench responded with a counter-offer of 1000 pounds and Hyde responded with another counter-offer of 950 pounds. When Wrench declined the counter offer, Hyde decided he would accept the earlier offer of 1000 pounds, however Wrench decided he would no longer sell his land to Hyde for this amount. As Hyde had made another counter-offer after the earlier offer, the offer of 1000 pounds was now destroyed. Hyde sued Wrench for breach of contract claiming that the earlier offer was not withdrawn however the court found that Wrench did not need to withdraw the offer of 1000 pounds as it was destroyed when the counter-offer of 950 pounds was made.
In this case, SF made an offer to EF, being $90,000 if sales increase by 20% in two months. EF later responded with a counter-offer of $120,000, which then destroyed the earlier offer of $90,000. SF did not respond to this counter offer, therefore not accepting the new offer. EF also added terms to the offer that were not previously discussed with SF, which also did not mirror the terms of the earlier offer of which the court considers being a strict requirement for full and unequivocal assent.
Excellent Foods cannot commence an action for breach of contract against Safe Foods as the counter-offer negates the original offer of which Safe Foods did not respond to and therefore is not considered as an acceptance of the terms.
b) Promissory estoppel is an equitable action, which is designed to enforce promises made from one party to another where the promises are not supported by consideration. The doctrine of promissory estoppel can only be applied if a clear promise was made from the promisor to the promisee, if the promisse has suffered a significant loss from the promiser now going back on its promise, if the promiser acted unconscionably, and if the promisse undertook certain acts (or refrained from undertaking certain acts) due to the promiser’s initial promise.
A leading case which illustrates the purpose of promisary estoppal is Waltons Stores v Maher where Waltons negotiated with Maher over the grant of a lease of property that Maher owned. Maher agreed to demolish a building in order to make way for a new custom designed building to be occupied by Waltons. Changes and agreements were made by both parties over the following months. Waltons later decided that they no longer required the building after Maher had already informed then that they were proceeding with the demolition and despite being aware of this, advised their solicitors to ‘go slow’ in informing Maher of their reservations.
Due to Maher having initially received a clear promise, suffered considerable loss and completed many acts under the belief that Waltons would go ahead with the promise as well as Waltons acting unconscionably against Maher in ‘going slow’ in informing Maher of their true intentions, Maher was able to rely on promisary estoppel and therefore won on first instance and later at the appeal.
In this case, Excellent Foods did not suffer any considerable loss from Safe Foods not following through with the business transfer. Whilst there was an initial promise made by SF to EF, EF later requested 10% of the transfer price of $120,000 within 14 days– a term that had not previously been negotiated. It may be because of this term that SF does not wish to continue with the transfer in which case they have not acted unconscionably. EF informed SF in writing that they did not wish to continue with the transfer.