ACCEPTANCE
If no conditions are expressly stated, a fundamental change in circumstances may revoke an offer. A fundamental change necessitates that the parties must not have knowledge of the possibility of the change in circumstance – Dysart Timbers Ltd v Neilson NZSC A counter-offer kills revokes the original offer. However, a mere inquiry is not a counter-offer – Stevenson, Jaques & Co v McLean Modified for sale of goods, (1) a reply to an offer which purports to be an acceptance but contains modifications is a counter-offer; but (2) if said modifications do not materially alter the terms of the offer, the reply is an acceptance, unless the offeror, without undue delay, objects – CISG Article 16, enacted by Goods Act 1958 (Vic)
ACCEPTANCE Acceptance uses the objective test; the parties to not necessarily need to be ‘of the same mind’ – Fitness First v Chong ($200 late fee); Smith v Hughes (old oats) However, acceptance must be in response to the offer; eg you may not accept in ignorance of the offer (an exception to the objective test as the subjective intention of the offeree is considered) – The Crown v Clarke Acceptance must be communicated to the offeror except when that requirement is waived (unilateral contracts) Acceptance is effective when and where it is received by the offeror – Latec Finance v Knight (no communication of acceptance) (TV) For instantaneous communications, acceptance is at place and time of receipt – Brinkibon Ltd v Stahag Stahl (telex) The Electronic Transactions Act 2000 (Vic) s 3 defines electronic communications Section 13A(1)(a) – if an electronic address has been designated, time of receipt is when the message is capable of being retrieved Section 13A(1)(b) – if no designation, addressee must also be become aware that the electronic communication has been sent to the address The mere indication of an electronic address on a letterhead or other document is not sufficient designation; it must be explicit – Guide to Enactment of the UNCITRAL Model Law on Electronic Commerce (1996) For non-instantaneous communications, acceptance is at place and time of dispatch The postal acceptance rule states that an offer is accepted as soon as a letter is posted – Adams v Lindsell
ACCEPTANCE Acceptance uses the objective test; the parties to not necessarily need to be ‘of the same mind’ – Fitness First v Chong ($200 late fee); Smith v Hughes (old oats) However, acceptance must be in response to the offer; eg you may not accept in ignorance of the offer (an exception to the objective test as the subjective intention of the offeree is considered) – The Crown v Clarke Acceptance must be communicated to the offeror except when that requirement is waived (unilateral contracts) Acceptance is effective when and where it is received by the offeror – Latec Finance v Knight (no communication of acceptance) (TV) For instantaneous communications, acceptance is at place and time of receipt – Brinkibon Ltd v Stahag Stahl (telex) The Electronic Transactions Act 2000 (Vic) s 3 defines electronic communications Section 13A(1)(a) – if an electronic address has been designated, time of receipt is when the message is capable of being retrieved Section 13A(1)(b) – if no designation, addressee must also be become aware that the electronic communication has been sent to the address The mere indication of an electronic address on a letterhead or other document is not sufficient designation; it must be explicit – Guide to Enactment of the UNCITRAL Model Law on Electronic Commerce (1996) For non-instantaneous communications, acceptance is at place and time of dispatch The postal acceptance rule states that an offer is accepted as soon as a letter is posted – Adams v Lindsell
