供学员下载chapter 4 + 5 case summaries-1.pdf

1 1 1 1/19191919F4Corporate and Business lawCase SummariesChapterChapterChapterChapter 4 4 4 4SummariesSummariesSummariesSummariesFactFactFactFactDecisionDecisionDecisionDecisionApplicationApplicationApplicationApplication1Fisher v Bell (1960)The restriction of offensive weapons( 攻 击 性 武 器 ) act 1959 creates a criminaloffence (刑事犯) of ‘offering for sale’ (标价出售)certain offensive weapons. A shopkeeper wasprosecuted (被起诉 )under this statute (法令)for displaying a flick knife in his shop window.Awindow display was not anofferofsale,butonlyaninvitation to treat. So the displaydid not infringe the law (触犯法律)————Shop window displays areconsidered as invitations totreat————Invitation to treat is not anoffer.2Pharmaceutical society of Great Britainv Boots Cash Chemists 1953Statuterequiresthatthesaleofcertainpharmaceuticals must be carried out under thesupervision of a qualified pharmacist（药剂师）.Boots operated a store where the drugs weredisplayed on a self-service basis and thecustomers paid at a cash desk for the goodsthey had selected.Apharmacist was present atthe cash desk but not at the shelves where thegoods were displayed with a price tag. Thepharmaceutical society （药学会）claimed thatthe statute was being contravened.The display of goods in s shopwas not an offer, but an invitationto treat. It was the customer whomade the offer and boots couldeither accept or reject this offerat the cash desk (in thepresence of the qualifiedpharmacist). The act constitutingthe acceptance is the ringing upof the price on the till by thecashier and at that moment abinding contract of sale is made.————Goods on shop shelves isan invitation to treat————Invitation to treat is not anoffer3Partridge v Crittenden 1968MrPartridgeplacedanadvertisementfor‘Bramblefinch cocks, bramblefinch hens, 25seach’.TheRSPCA broughtaprosecutionagainst him for offering for sale a brambling incontravention of the Protection of Birds ActThe conviction was quashed.Although there had been a salein contravention of the Act, theprosecution could not rely on theoffence of ‘offering for sale’, as————An advertisement of goodsfor sale is usually anattemptattemptattemptattempt totototo induceinduceinduceinduce offersoffersoffersoffers————The circulationcirculationcirculationcirculation ofofofof a a a a pricepricepricepricelistlistlistlist is also an invitation to2 2 2 2/19191919F4Corporate and Business lawCase Summaries1954. The justices convicted Partridge and heappealed.the advertisement onlyconstituted an invitation to treat.treat:Grainger v Gough1896,where it was noted:————‘The transmission of such aprice-list does not amount toan offer….if it were so, themerchant might find himselfinvolved in any numberofcontractual obligations tosupply wine of a particulardescription which he wouldbe quite unable to carry out,his stock of wine of thatdescription beingnecessarily limited’.4Carlill v Carbolic Smoke Ball Co 1893The manufacturers of a patent machinepublished an advertisement by which theyundertook to pay ‘£100 reward… to any personwho contracts….influenza….after having usedthe small ball three times daily for two weeks’.The advertisement added that £1000 had beendeposited at a bank ‘showing our sincerity inthis matter’. The claimant read theadvertisement, purchased the smoke ball andused it as directed. She contracted influenzaand claimed her £100 reward. In their defencethe manufacturers argued against this.The court disagreed.a) The smoke ball must protectthe user during the period of use– the offer was not vagueb) Such an offer was possible, asit could be compared to rewardcases.判决认为：（1）广告向大众发出，原告是受要约人；（2）广告用语客观上足以表达了成立合————Offer can be made to thewhole world at large, thesmoke ball must protect theuser using the period of use– the offer was not vague.————Thedepositofmoneyshowedintentiontobelegally bound————Executed consideration wasprovided by the act of thecustomer using the productas instructed.3 3 3 3/19191919F4Corporate and Business lawCase Summariesa) The offer was so vague that it could not formthe basis of a contract, as no time limit wasspecifiedb) it was not an offer which could be acceptedsince it was offered to the whole world.被告人声称他们已研究出一种抗感冒药叫Carbolic Smoke Ball，他们在报章广告上称，任何人只要遵照药品说明书的指示服用，仍患上感冒的，他们会向各人给与 100 英镑。

为表示他们的诚意，他 们“已把 1000 英镑存放入摄政街联合银行” 原告按照药品说明书服用后， 又患感冒，索赔不成诉至法庭被告提出和同不成立：（1）广告不是向大众不是向特定人发出的；（2）广告没有成立合同的意思；（3 原告没有向被告做出承诺同的意思；（3）被告对承诺形式没有特别要求， 原告服药行为表示了承诺 因此， 判决被告履行该合同支付原告 100 英镑————Theact of the customerusingtheproductasinstructed is considered asacceptance5Hyde v Wrench 1840Wrench offered to sell Hyde a farm of 1000pounds. Hyde made a counter-offer, by offering950 pounds. Wrench rejected this. Later Hydecame back and said that he now accepted theoriginal offer of 1000 pounds. Wrench rejectedit.Hyde could no longeraccept the original offer. It hadbeen terminated by thecounter-offer (反要约) and wasno longer capable ofacceptance. His ‘acceptance’was merely a fresh offer whichWrench was free to turn down.————Rejectionbytheoffereemay be out。