In Sean, the Sales Director at BIMsoft, and

In the scenario at hand, Will and Sarah have
to be advised. Will needs to be advised about his potential legal position, i.e.
whether or not he has concluded a contract with BIMsoft and/or AutoBIM, whereas
Sarah needs advice about her potential tort related, legal claims.The work will firstly consider whether Will
has entered into a contract with either BIMsoft or AutoBIM. This analysis
requires addressing relevant principles of contract law, mainly offer and
acceptance and revocation of an offer. Initially, Will, the
project manager of NewDay Construction Limited, hereafter ND, approached Sean,
the Sales Director at BIMsoft, and asked him to quote a price for the
installation of BIMsoft’s ‘state-of-the-art’ BIM Generation and Management
software. The issue is whether there has been an invitation to treat. Professor
Andrew Burrows defines an invitation to treat as “…an expression of
willingness to negotiate. A person making an invitation to treat does not
intend to be bound as soon as it is accepted by the person to whom the
statement is addressed.” 1 Furthermore
in the case of Spencer v Harding2, Willes
J held that “the circular was not an offer, but merely
an invitation to gather tenders, upon which the Defendants were entitled to act…the absence of any specific wording such as “and we undertake to
sell to the highest bidder” rebutted any presumption that the defendants
had intended to be bound by a contract.” Moreover, in the case of Pharmaceutical Society of Great Britain v
Boots Cash Chemists3, it was established that exposing goods
does not indicate a willing to sell it is rather an invitation to treat and
consequently, does not amount to an offer to sell. Will made an invitatio ad
offerendum, viz., an invitation to treat rather than an offer.  Therefore,
at this stage,
Will’s request cannot form a contract;4 it
was merely an invitation for BIMsoft to make an offer.As indicated above, Will’s request to quote a price
was a mere invitation to treat. Sean replied to this invitation to treat. The
issue is whether Sean did indeed make an offer. Sean proposed a lump sum price
of 10,500 for the installation, including appropriate staff training. So, it is
likely that Sean’s proposition amount to an offer. The question to be addressed
now is whether the offer made by Sean legally binds ND and whether the parties
entered into a contract. Unquestionably, as a general proposition, when an
offer is made, it is necessary in order to make a binding contract, not only
that it should be accepted, but that the acceptance should be communicated.5 Will
did not say anything about the alleged offer. Mere silence does not amount to
In this stage there is no acceptance, let alone a communication. Therefore, no
contract was concluded. Thus, at this stage, the offer was not conclusive and as such ND’s acceptance is
needed.Subsequently, on the same day, Will received an
advert by email from AutoBIM Ltd proposing their cutting edge BIM software at a price guaranteed
not to exceed £9,000. Will immediately placed an order by telephone. Having a
discussion afterwards with one of the technical staff of AutoBIM, the cost of
installation turned out to be higher than it was advertised, at which point,
Will sought to withdraw his order. The issue is to establish whether a contract
is concluded between ND and AutoBIM. The work will not discuss in depth the form of communication
of the advert. Communication by e-mail should be accepted as a contract can be
agreed to in the form of e-mail. However, whether the advert received amounts
to an offer or is a mere invitation to treat, must be considered.The United States case of Lefkowitz
v Great Minneapolis Surplus Store7
was held to be an offer as the advertisement was limited to a certain number of
acceptances (Three in this case). Although the case is not binding in England
and Wales it is likely to be considered as an example in similar cases. The
advert sent by AutoBIM might have been communicated to a large number of
construction companies and likely the courts would not find it an offer.In Partridge
v Crittenden8, Lord Parker CJ said: “I think when one is dealing with
advertisements and circulars, unless they indeed come from manufacturers, there
is business sense in their being construed as invitations to treat and not
offers for sale.” Furthermore, the general
rule is that it must be reasonable under the circumstances for the recipient to
believe that the communication is an offer. The communication should be
definite and states as a minimum, who are the parties, what is the subject
matter as quantity and quality, what is the price and what is the time frame of
the offer. In the current communication, the price is not clear as it only
specifies the upper threshold. The quantity and quality lack precise
definition. The recipient (Will) cannot understand the breakdown of the price
and whether the said price includes installation, staff training, maintenance and
on how many computers can be installed. The communication is therefore likely
less than an offer and tantamount to a mere invitation to treat. On top of
that, the advert states that AutoBIM ‘can offer’ software. The expression ‘can
offer’ relieves AutoBIM from
the obligation to supply all the companies who reply to his advert. Therefore
the advert cannot be regarded as an offer to sell, capable of acceptance, so as
to constitute a contract.9 If
Will had not placed an order, the matter would have been straightforward; no
legal binding contract was established. The issue to be addressed is whether Will phone
call amounted to an offer. Will likely placed the order to buy the cutting edge
BIM software with a price not exceeding £9,000 with the intention to be bound
if AutoBIM accept his order.10 Further
discussion with AutoBIM technical staff showed that the actual cost exceeded £12,000;
higher than the initial offer made by ED. This constituted a counter offer (made
by Will in response to the invitation to treat). A counter-offer, or as it is
sometimes called a qualified acceptance, destroys the original offer and
replaces it. In the case of Hyde v Wrench11,
Lord Langdale ruled that any counter-offer cancels the original offer, “there
exists no valid binding contract between the parties”. So no contract could be concluded. Had Will accepted
the counter offer? If the offeror accepts a counter offer made by the offeree,
the new terms will be binding and form the contract. Otherwise, the counter
offer is considered as not accepted and the contact is not formed. The offeree
is not allowed to reconsider his acceptance of the original offer as the offer
is no longer qualified for acceptance.12 Will
had not accepted the counter offer, on the contrary he withdrew his offer
(order). Will was not even obliged to re-offer.13The day after, Will communicated to BIMSoft his
acceptance of the offer made by Sean. In his offer, Sean placed a time limit on
the offer; he stated that the price could be held only for a week. An offeror
can place a time limit on his offer and prevent the offeree from accepting
after that time, the offer lapses after that time.14  Will’s purported communication conformed to
the timeframe of the offer as it was made the day after. BIMSoft did not
prescribe any mode of communication;15  this gave the opportunity to Will to
communicate his acceptance in any form. The communication could be sent by
post, in this case the acceptance is considered at the time of sending no
matter when will arrive to the offeror.16 However,
Will telephoned BIMSoft and left a message on the answering machine. In cases
of instantaneous communication, the contract is only complete when the
acceptance is received by the offeror; the receipt rule.17 Therefore,
it is of paramount importance to verify whether the communication reached the
offeror (Sean). Denning LJ in Entores v Miles
Far East18
case clarified the
issue of the acceptance, he said “…that if the line went dead when the
purported acceptance was sent there would be no contract because the sender
would know that the communication would be not successful…”19
However, in the case
of Will the line did not go dead, Will left a message and likely the offeror would have received the
communication and thus the acceptance.At the same time, Will asked whether the cost
comprised training for further staff to be contracted within six months from
the date the contract came into force. The issue is whether Will’s question
amounts to counter-offer or whether it is tantamount to a simple request for
further information. As a
general rule, an acceptance has to be a mirror image of the offer to
reflect the consensus ad idem of the parties20. As
discussed above, a counter-offer destroys the original offer and replaces it. On
one hand, Will’s inquiry could be considered a counter-offer as it changed the
quantity of the offer. In fact, Will, seemingly, sought to include on-site training for
new staff to be contracted in the first six months following the entering in
force of the contract. In this case, the inquiry (would kill) killed off the offer immediately.
Consequently, the court might likely consider that there was no contract: “The
severity of this approach depends on how the courts distinguish counter-offers
and inquiries… Drawing the line between an inquiry which implies a
counter-offer and one which does not is a difficult job.”21 An
inquiry for information, by contrast, does not intend to reject an offer ready
for acceptance. In Stevenson Jaques &
Co. v McLean22, Lush J held that “under
the circumstances the plaintiffs’ telegram at 9:42 ought not to be construed as
a rejection of the defendant’s offer, but merely as an inquiry whether he would
modify the terms of it.” On the other hand, Will’s
request could be understood as an inquiry for clarification, as the offer
covers appropriate staff training but without further details. Will, merely
asked whether the offer include training staff to be contracted within the following six
months after the conclusion of the contract. Will did not intend to bounce back
BIMSoft’s offer. It is likely that the courts would consider that Will’s
request had not amounted to a counter-offer.Will was uncertain about his action; he
communicated his decision to cancel his order, in other words he wanted to
withdraw his acceptance. As general rule, an acceptance delivered by
instantaneous communication is binding when it is received. As mentioned
earlier, BIMSoft likely received the communication, therefore it is binding.
Therefore, Will cannot revoke his acceptation. However, “even with
instantaneous communications, the courts have flexibly interpreted the meaning
of ‘received’ in order to reach their preferred conclusion.”23
BIMSoft’s secretary on duty confirmed that recordings on the answering machines
were passed to Sean to listen to them. In addition, she took note of Will’s
withdrawal wish. This confirms that it is likely the withdrawal will be communicated
after the actual reception of the acceptance. Moreover, the acceptance was
already received by the technical staff as the system triggered automatic
messages when an order is placed. Seemingly, the contract was concluded and the
revocation will constitute a breach of the contract. Likely there is no room to
the courts, in this case, to interpret the meaning of ‘received’ to reach a
different conclusion.The work will now consider the various tort related
issues and advise Sarah as to her potential legal claims. The question is whether
Sarah, the injured student on holiday, may sue Vishnu or, more likely, his
employer (BIMSoft), in tort for negligence.24 For
a claim to succeed in negligence in common law, Sarah must show that Vishnu
owed her a duty of care, that Vishnu broke that duty, that this breach of duty caused
her harm and the harm is not too remote. The first issue to determine is
whether or not Vishnu owed Sarah a duty of care. The test which Lord Atkin
employed for the existence of duty of care is known as the ‘neighbour principle’.25
Duty of care can be broken down into two questions26:
First, is this a case to which the law of negligence is applicable?27
The second is was it foreseeable that this claimant would be harmed by the
defendant’s act?28
The test of duty of care, which is currently
regarded as definitive, was stated in the case of Caparo Industries plc v Dickman.29 In
the latter case, Lord Bridge introduced a third element, ‘fair, just and
reasonable’, the test became known as the Caparo
‘three-stage test’. There is no need to foresee the precise nature of the
injury, only the general loss should be foreseeable.30  Moreover, Sarah was directly affected by the Vishnu’s
negligent act; there is obvious closeness in time and space.31 The
issue now is whether it is fair, just and reasonable to impose a duty. In
applying the third stage of the Caparo test, of fair, just and reasonable, the
courts take certain policy factors into account such as loss allocation, the
possibility of opening floodgates to litigation where a duty is imposed, and
the practical effect of imposing liability.  In Marc Rich & Co V
Bishop Rock Marine Co Ltd32,
it was found that the recognition of duty would be inconsistent with the third
stage of Caparo test. However, the court concluded otherwise in the case of Watson v British Boxing
Board of Control.33
The court concluded that it was fair, just and reasonable to impose a duty of
care. In Sarah’s case, the student suffered a personal injury because of
Vishu’s negligence, so, the court would likely impose liability on Vishnu
and/or his employer as it is just, fair and reasonable. The burden is on Sarah to prove that a reasonable
man of ordinary intelligence and experience, in the position of Vishnu, would
have foreseen that injury to a passer-by could have resulted from his action.
It is not always easy to reasonably foresee injury34.
In Sarah’s case a reasonable man would have said that leaving a toolbox close
to the entrance of a pedestrian walkway was likely to cause an accident to a pedestrian
and would not have left an object close to the entrance. The toolbox should
have been left in the engineer’s car and then carried straight to the work
site. It is obvious that pedestrian paths must be clear of any obstacle.
Consequently, there is little doubt that Vishnu fell below the standard of care
Therefore, it is clear that Vishnu breached his duty.Sarah must also prove on the balance of probabilities
that the breach of duty caused her harm: as such, the rules on causation must
be fulfilled. Applying the ‘but for’ test, Barnett v Chelsea & Kensington Hospital 36 Sarah should be able to establish the causal link
between the breach and her loss as a matter of fact. Otherwise, her claim would
fail.37 Causation
is established by satisfying the ‘but for’ test that is, would Sarah have
suffered the losses but for Vishnu’s breach of duty. The answer is obviously “No”,
as Sarah tripped over the toolbox and ‘but for’ Vishnu’s breach the accident
would not have occurred. Sarah injured her right ankle, shoulders and neck.
Further injuries were suffered by Sarah whilst transported to the hospital. The
issue now is how much of Sarah’s loss should be attributable to Vishnu and whether
the harm is the foreseeable consequence of the breach of duty.38
It was foreseeable to use an ambulance to transport an injured person to the
hospital, it was also foreseeable that a complication or an accident could
happen while the injured was being transported. It could be argued that the way
the further injuries occurred was unexpected39 but in any case,
they were foreseeable. The
transport was not unreasonable or extraneous. In the Oropesa40 the court of appeal
rejected the fact that the chain of causation was broken. It was said that the
defendant created an emergency situation and a new action was deemed necessary.
It is unlikely that courts would consider that the intervening act broke the chain
of causation. It has therefore been demonstrated that Vishnu is liable to
Sarah.  However, Vishnu is a BIMSoft’s employee; he is one of
the engineers of BIMSoft and therefore, an employer/employee relationship does
exist. Vishnu’s negligence was committed whilst he was in the course of his
employment. To determine this with certainty, the courts use two tests, namely the
‘Salmond’ test41
and the ‘close connection’ test established in Lister v Hesley Hall Ltd.42 Even
though the close connection test in Lister was initially adopted in Scotland, in
the case of Wilson v Excel UK Limited,43 the Kirby principles
were used. Thus, Vishnu and his employer are likely to be held liable. Thus,
likely BIMSoft was vicariously liable for Vishnu’s negligence. Therefore, Sarah
should not bring any action against anyone other than Vishnu’s employer44 as
it was demonstrated above that the chain of causation did not seem to be
broken. BIMSoft could argue that Sarah voluntarily assumed the
risk of injury, volonti non fit injura.45 BIMSoft
could maintain that Sarah should have taken reasonable care for her own safety.
If she had been keeping a proper look out, she could have observed and avoided
tripping over the toolbox. She was not watching where she was going. If their
argument was successful, it would be a complete defence; so if it was
established, it would relieve BIMSoft from all liability. BIMSoft could hold
that Sarah was not taking appropriate action for her own safety; the toolbox
must have been clearly visible to her. BIMSoft could argue that there was
contributory negligence46 (partial defence), so that damages may
be reduced under the Contributory Negligence Act 194547.  Sarah was walking where it would be (the entrance of a pedestrian walkway), it was
not her recklessness not seeing the toolbox.  A court would likely find
that Sarah acted as a reasonable prudent man,48 and
would likely not uphold the arguments of the defence as BIMSoft created a
foreseeable risk of injury to pedestrians in leaving a toolbox close to the
entrance of a pedestrian walkway and did nothing to draw the attention of passers-by
to its presence.  Sarah is likely to be successful in claiming damages
for her injury, and should then be put in the position she would have been in
before the injury occurred; there should be restitution
to integrum49. Sarah should seek damages for the significant injuries
she sustained as well as damages for pain and suffering50. Considering
the pecuniary damages, Sarah could recover for expenses reasonably incurred such
as medical expenses51,
the loss of earnings net of deductions52
from her football team and the interests for the period between the accident
and the time receiving the compensation. As indicated by the assessment made by
the medical team, Sarah will be unavailable only for a few months, so, unlikely
there would be loss of earning capacity. Therefore, her case would be likely
distinguished from the case of Moeliker v
Reyrolle & Co Ltd53.
For that reason, the calculation of the award is likely to be straightforward. Regarding
the non-pecuniary damages, they would represent, firstly, the effect of the
injuries themselves, they are determined using a tariff system displayed in a
table showing ‘Judicial Studies Board’ guidelines;54
secondly the pain and suffering55 and
finally the impact of missing the second semester school work at the university. 

1 Andrew Burrows, A
Casebook on Contract (Hart Publishing 2013).

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2 (1870) LR 5 CP 561

3 1952 2 Q.B. 795 

4Harvey v Facey 1893 AC 552

5 Carlill v Carbolic
Smoke Ball Company 1892 EWCA Civ 1

6 Felthouse v Bindley (1862)  EWHC CP J35

7 (1957) 86 NW 2d 689

8 1968 1 WLR 1204

9 Gibson v Manchester
City Council 1979 UKHL 6

10 Storer v Manchester City
Council 1974 WLR 1403

11  (1840) 49 ER 132, 337

12 Wolf and Wolf v Forfar Potato Co 1984 SLT 100 .

13 Findlater v Maan 1990 SLT 465

14 Dickinson v Dodds (1876) LR 2 Ch D

15 Holwell Securities v
Hughes 1974 1 WLR 155

16 Adams v Lindsell (1818) 1B &Ald

17 Brinkibon Ltd v Stahag Stahl und
Stahlwarenhandelsgesellschaft mbH 1983 2 AC 34

18 1955 2 QB 327

19 Richard Taylor &
Damian Taylor, D, Contract Law Directions (Oxford 2015)

20 Mathieson  Gee (Ayrshire) Ltd V
Quigley 1952 SC (HL) 38

21 Richard Taylor &
Damian Taylor, D, Contract Law Directions (Oxford 2015)

22 Stevenson
Jaques & Co. v McLean  (1880) 5 QBD

23 Richard Taylor &
Damian Taylor, D, Contract Law Directions (Oxford 2015)

24 Winfield’s said
‘Negligence as a tort is a breach of a legal duty to take care which results in
damage to the claimant.’

25 Donoghue v
Stevenson 1932 AC 562

26 Vera Bermingham
& C Brennan,
Tort Law Directions (Oxford 2014)

27 General and
determined as a matter of law and policy

28 Specific and
fact-based question.

29 1990 1 All E R 568

30 Hughes v Lord Advocate (1963) SC (HL) 31

31 Bourhill v Young 1943 AC 92

32 1996 AC 211

33 2001 QB 1134

34 Smith v Littlewoods
1987 SCLR 489 

35 Blyth v Birmingham Waterworks Co (1856) 11 Ex 781.

36 1969 1 QB 428

37 Pickford v I Imperial Chemical Industries Plc 1998 UKHL 25

38 Overseas Tankship (UK) Ltd v Morts Dock and
Engineering Co Ltd 1961 AC 388

39 Sayers v Harlow
Urban District Council 1958
1 WLR 623; 1958 2 All ER 342

40 1943 1 All ER 214
p 32

41 J salmond, Law of
torts (Sweet and Maxwell, London,1907) 83.     

42 2002 1 AC 215.

43 2010 CSIH 35.

44 In Dubai Aluminium Co Ltd v Salaam 2002 UKHL 48, it
was stated that employers reap profits so, they should feel the burdens.

45 Nettleship v Weston 1971 2 QB 691 (CA)    

46 Steel v Glasgow Iron & Steel Co 1944 SC 237

47 Law
Reform (Contributory Negligence)  Act
1945, s 1(1)

48 Jones v Livox Quarries 1952 2 QB 608.

49 Livingstone v Rawtards Coal Co (1880) 5 App Cas

50 Lim Poh Choo V Camden And Islington AHA 1980 AC 174

51 Law
Reform (Personal Injuries) Act 1948, s 2(4)

52 British Transport Commission v Gourley 1956 AC 185

53 1977 1 All ER 9

54 Judicial Studies
Board’ guidelines (10th Edition Publisher and Date?) for the assessment of
general damages in personal injury  cases.

55 Wise v Kaye 1962 1 QB 638