What are the principles lying behind the decisions in relation to self-service stores and shop window displays? In Boots the court stressed the need for the shopper to be allowed a ‘change of mind’. As we have seen, however, that does not necessarily require the offer to be made by the customer, just that the acceptance of the offer should be delayed beyond the point when the shopper may legitimately still be deciding whether to purchase. In any case, the argument cannot apply to the shop window cases. The customer who enters the shop will either say ‘I want to buy that item displayed in your window’, which could undoubtedly be treated as an acceptance, or ‘I am interested in buying that item in your window; can I inspect it?’ or ‘can you tell me more about it?’, which would simply be a stage in negotiation. There is no need, therefore, to protect the
customer by making the shop window display simply an invitation to treat.
The most likely candidate as an alternative principle on which the decisions are based is freedom of contract. That freedom includes within it the principle that a person can choose with whom to contract – ‘party freedom’.30On this analysis, the shop transaction needs to be analysed in a way which will allow the shopkeeper to say ‘I do not want to do business with you’. This was the view expressed to counsel by Parke B in the 19th century case of Timothy v Simpson.31 There are two problems, however, with the modern law of contract allowing such freedom in these situations.
First, such freedom has the potential to be used in a discriminatory way.32 Certain types of discrimination – principally on grounds of race, sex and disability33 – have as a matter of social policy been made unlawful by statute.34To the extent, therefore, that the common law of contract still allows party freedom to operate in these areas, there is a tension between it and the statutory regimes. A shopkeeper who discriminates on impermissible grounds in deciding with whom to contract is not forced by the common law to undertake the contractual obligation, but may face a quasi-tortious action under one of the relevant statutes.
Secondly, application of the ‘party freedom’ principle leads to the conclusion that, as far the law of contract is concerned, a shopkeeper is not bound by any price that is attached to goods displayed in the shop, or in the window. He or she is entitled to say to the customer seeking to buy the item ‘... that is a mistake. I am afraid the price is different’. Again, however, there is a conflict with the statutory position. Such action on the part of the shopkeeper would almost certainly constitute a criminal offence under s 20 of the Consumer Protection Act 1987. This states that:
... a person shall be guilty of an offence if, in the course of any business of his, he gives (by any means whatever) to any consumers an indication which is misleading as to the price at which any goods, services, accommodation or facilities are available (whether generally or from particular persons).
30 See Brownsword, 2000, para 2.10. 31 (1834) 6 C & P 499, at p 500.
32 See Beale, 1995a, p 190; Collins, 1997, pp 33–34; Brownsword, 2000, para 2.15.
33 Race Relations Act 1976; Sex Discrimination Act 1975; Disability Discrimination Act 1995. Other types of discrimination may become unlawful as a result of the effects of the Human Rights Act 1998.
34 Note that the common law did in fact also recognise some restriction on party freedom as regards common carriers and innkeepers – see Halsbury’s Laws, Vol 5(1), para 441 and Vol 24, para 1113.
An indication is ‘misleading’ if, inter alia, it leads the consumer to think that the price is less than in fact it is.35Thus, if a shop has a window display indicating that certain special packs of goods are on offer at a low price inside, but in fact none of the special packs are available, an offence will almost certainly have been committed. This was the result in
Tesco Supermarkets Ltd v Nattrass,36 a case concerning s 11 of the Trade Descriptions Act 1968, which was the predecessor to s 20 of the Consumer Protection Act 1987.
In practice, because of their awareness of the statutory position, and their wish to maintain good relationships with their customers, shops and other businesses are unlikely to insist on their strict contractual rights in situations of this kind. That being the case, the question arises as to whether the rule that it is the customer who makes the offer, and the shopkeeper who has the choice whether or not to accept it, is not ripe for reconsideration, so as to avoid the current tension with the statutory controls.
2.6.5 Advertisements
Where goods or services are advertised, does this constitute an offer or an invitation to treat? It would be possible here for the law also to base its principles on ‘party freedom’. That is, a person putting forward an advertisement should not be taken to be waiving the right as to whom he or she chooses to contract with. In fact, however, the cases on this area show the courts adopting an approach based on pragmatism, rather than on the ‘party freedom’ principle. The answer to the question ‘is this advertisement an offer?’ will generally be determined by the context in which the advertisement appears, and the practical consequences of treating it as either an offer or an invitation to treat.
Generally speaking, an advertisement on a hoarding, a newspaper ‘display’, or a television commercial, will not be regarded as an offer. Thus, in Harris v Nickerson,37 the defendant had advertised that an auction of certain furniture was to take place on a certain day. The plaintiff travelled to the auction only to find that the items in which he was interested had, without notice, been withdrawn. He brought an action for breach of contract to recover his expenses in attending the advertised event. His claim was rejected by the Queen’s Bench. The advertisement did not give rise to any contract that all the items mentioned would actually be put up for sale. To hold otherwise would, Blackburn J felt, be ‘a startling proposition’ and ‘excessively inconvenient if carried out’. It would amount to saying that ‘anyone who advertises a sale by publishing an advertisement becomes responsible to everybody who attends the sale for his cab hire or travelling expenses’.38 In other words, the practical consequences of treating the advertisement as an offer would be such that it is highly unlikely that this is what the person placing the offer can have intended. Using an approach based on ‘promisor objectivity’,39 it is
concluded that the advertisement is nothing more than an invitation to treat.
It follows from this that these types of advertisement should be regarded simply as attempts to make the public aware of what is available. Such advertisements will often in any case not be specific enough to amount to an offer. Even where goods are clearly identified, and a price specified, however, there may still not be an offer. A good example
35 Section 21.
36 [1972] AC 153; [1971] 2 All ER 127. 37 (1873) LR 8 QB 286; (1873) 42 LJ QB 171. 38 (1873) LR 8 QB 286, at p 288.
of this situation is another criminal law case, Partridge v Crittenden.40 The defendant put an advertisement in the ‘classified’ section of a periodical, advertising bramblefinches for sale at 25s each. He was charged under the Protection of Birds Act 1954 with ‘offering for sale’ a live wild bird, contrary to s 6(1). It was held that he had committed no offence, because the advert was an invitation to treat and not an offer. The court relied heavily on
Fisher v Bell,41 and appeared to feel that this kind of advertisement should be treated in the same way as the display of goods with a price attached. To that extent the case may seem to adopt the ‘party freedom’ approach implicit in Fisher v Bell. Lord Parker, however, pointed out an additional, and very practical reason for not treating it as an offer. If it was an offer, this would mean that everyone who replied to the advertisement would be accepting it, and would therefore be entitled to a bramblefinch. Assuming that the advertiser did not have an unlimited supply of bramblefinches, this cannot be what he intended. As with Harris v Nickerson, this is an analysis based on ‘promisor objectivity’, looking at what the reasonable advertiser would be taken to have meant by the advert. As a result, the advertisement was properly to be categorised as an invitation to treat.42
This does not mean, however, that all newspaper advertisements will be treated as invitations to treat. If the guiding principle is promisor objectivity, rather than party freedom, then provided that the wording is clear, and that there are no problems of limited supply, then there seems no reason why such an advertisement should not be an offer. If, for example, the advertiser in Partridge v Crittenden had said, ‘100 bramblefinches for sale. The first 100 replies enclosing 25s will secure a bird’, then in all probability this would be construed as an offer. An advertisement of a similar kind was held to be an offer in the American case of Lefkowitz v Great Minneapolis Surplus Stores,43 where the defendants published an advertisement in a newspaper, stating: ‘Saturday 9 am sharp; three brand new fur coats, worth to $100. First come first served, $1 each.’ The plaintiff was one of the first three customers, but the firm refused to sell him a coat, because they said the offer was only open to women. The court held that the advertisement constituted an offer, which the plaintiff had accepted, and that he was therefore entitled to the coat. Clearly in this case the court was rejecting any argument based on party freedom. In this context any such freedom was waived by making such a specific offer to the general public, which did not indicate any intention by the advertiser to put limits on those who were entitled to take advantage of the bargain. The use of such an approach here only serves to highlight the anomaly of the cases on shop sales discussed in the previous section.