Tesco v Constain - Thomson Reuters

(1879-80) L.R. 5 Q.B.D. Page 41879 WL 15569 (QBD)(Cite as: (1879-80) LR 5 Q.B.D. 346)assent or concurrence *351 of the two minds at the moment when the offer isaccepted; and that if, when an offer is made, and time is given to the otherparty to determine whether he will accept or reject it, the proposer changes hismind before the time arrives, although no notice of the withdrawal has been givento the other party, the option of accepting it is gone. The case of Cooke v.Oxley [FN3] does not appear to me to warrant the inference which has been drawnfrom it, or the supposition that the judges ever intended to lay down such adoctrine. The declaration stated a proposal by the defendant to sell to theplaintiff 266 hogsheads of sugar at a specific price, that the plaintiff desiredtime to agree to, or dissent from, the proposal till 4 in the afternoon, and thatdefendant agreed to give the time, and promised to sell and deliver if theplaintiff would agree to purchase and give notice thereof before 4 o'clock. TheCourt arrested the judgment on the ground that there was no consideration for thedefendant's agreement to wait till 4 o'clock, and that the alleged promise towait was nudum pactum.FN2 3 T. R. 653.FN3 3 T. R. 653.All that the judgment affirms is, that a party who gives time to another toaccept or reject a proposal is not bound to wait till the time expires. And thisis perfectly consistent with legal principles and with subsequent authorities,which have been supposed to conflict with Cooke v. Oxley. [FN4] It is clear thata unilateral promise is not binding, and that if the person who makes an offerrevokes it before it has been accepted, which he is at liberty to do, thenegotiation is at an end: see Routledge v. Grant. [FN5] But in the absence of anintermediate revocation, a party who makes a proposal by letter to another isconsidered as repeating the offer every instant of time till the letter hasreached its destination and the correspondent has had a reasonable time to answerit: Adams v. Lindsell. [FN6] "Common sense tells us," said Lord Cottenham, inDunlop v. Higgins [FN7], "that transactions cannot go on without such a rule." Itcannot make any difference whether the negotiation is carried on by post, or bytelegraph, or by oral message. If the offer is not retracted, it is in force as acontinuing offer till the time for accepting or rejecting it has arrived. But ifit is retracted, there is an end of the proposal. *352 Cooke v. Oxley [FN8], ifdecided the other way, would have negatived the right of the proposing party torevoke his offer.FN4 3 T. R. 653.FN5 4 Bing. 653.FN6 1 B. & A. 681.FN7 1 H. L. C. 381.FN8 3 T. R. 653.Taking this to be the effect of the decision in Cooke v. Oxley [FN9], thedoctrine of Pothier before adverted to, which is undoubtedly contrary to thespirit of English law, has never been affirmed in our Courts. Singularly enough,the very reasonable proposition that a revocation is nothing till it has beencommunicated to the other party, has not, until recently, been laid down, no casehaving apparently arisen to call for a decision upon the point. In America it wasdecided some years ago that "an offer cannot be withdrawn unless the withdrawalreaches the party to whom it is addressed before his letter of reply announcingthe acceptance has been transmitted": Tayloe v. Merchants' Fire Insurance Co.Copr. © West 2004 No Claim to Orig. Govt. Works