What makes the issue in the case problematic is that the notice is located in a shop window. In such a scenario most lawyers would swiftly conclude that it is an invitation to treat (ITT), possibly due to the plethora of authority1 and academic opinion2 on the issue. In an attempt to settle the issue we will examine the characteristics of each category and apply them directly to Gucci's notice. In so doing we will also attempt to validate or distinguish the relevant authorities in support of the pervasive argument.
Having concluded which category Gucci's notice falls into we will then examine how efficacious Jones' acceptance or Gucci's revocation is to the final outcome. Although there will be ancillary arguments within the facts of this case the seminal argument is firmly routed in whether Gucci's notice is an ITT or an offer. Let us examine these points further. An ITT otherwise known as an invitation to negotiate is a means by which a vendor exhibits their wares or services in the hope of eliciting interest from a buyer: '... mere expression of willingness to enter into negotiations which, it is hoped, will lead to the conclusion of a contract... '3.
Some examples of an ITT would be a car boot sale, where none of the goods have marked prices, a market or a menu in a restaurant. Although negotiations on price may be the most common association with 'negotiation' the example of the menu demonstrates how negotiation may be on the goods themselves rather than the price. Thus a fundamental element of ITT's is - what you see is not necessarily what you may get, be it on the price or the actual goods.
In addition to providing this forum for negotiation the ITT also provides an element of protection for both parties. Grainger v. Gough (Inspector of Taxes)4 and Partridge v. Crittenden5 are examples of protection being afforded to the vendor. In both cases the goods were held to be ITT's for the reason that if held to be an offer then any acceptance would create a contractual obligation to supply the goods, to which the vendors stocks may not be sufficient. The Boots Cash Chemist6 case is an example of how protection is afforded to the customer, protecting them from unwittingly entering into a binding contract.
In contrast to the ITT is the offer, the first formalised step to the creation of a contract. The type of offer that is given will have varying characteristics according to the type of contract that is envisaged. The very essence of the offer preceding a unilateral contract is that it is asking for an act to be done in return for the offeror's promise. Acceptance by the offeree would be when the car was completely washed, however once the offeree has commenced washing the car the offeror cannot revoke the offer. In determining which of these categories Gucci's notice falls into we must analyse both the wording of the notice and the intentions behind it. If this notice was categorised as an ITT then as we have seen, there will be a process of negotiation between the parties. The first issue here is that the price seems quite specific, not open for negotiation, although, this is not particularly conclusive when we consider that Mr Bell's flick-knife8 also had an exact price label.
Instead let us look at the intention behind the notice. It is likely that the price is a 'take it or leave it'9 statement, not open for negotiation. Concluding that the notice does not have the characteristics of negotiation let us consider the feasibility of an offer. The construction of the notice would suggest that the notice is a unilateral offer. Insofar as the intention is concerned, the manager's conduct on the Friday evening would strongly suggest that Gucci intended to honour the promise.
If however, this was disputed the court would be entitled to look at the notice and the manager's conduct objectively10; 'the alleged offeror may be bound if his words or conduct are such as to induce a reasonable person to believe that he intends to be bound, even though he has no such intention'11. It is submitted that if the words (notice) and/ or conduct (manager) were not sufficient to induce a reasonable person to believe that the offeror intended to be bound then Jones would have been on her way home by 6. 05pm on the Friday, if indeed she had even turned up in the first place.
On these facts it would therefore not be unreasonable to conclude that characteristically this notice bears a greater resemblance to an offer than it does to an ITT. However, the problem with such a finding is that it runs contrary to what most lawyers are taught and know from case law - if it's in a shop window it's an invitation to treat! In challenging this preconception let us address two issues. Firstly, the notice can be distinguished from 'shop window authority' on the basis that it is not passively exposed in the window as in the case of the flick-knife12 or the porno magazine13.
This notice is requesting the potential offeree to perform an act (in exchange for a promise). Looking at this from a different angle, would the same message be transmitted if the coat were displayed in the window without the notice? it is doubtful. Would we be questioning whether this notice was an offer if it wasn't located in the shop window? It is submitted that if this notice was on an A-board outside of the shop14, or located inside the shop15, that it would be considered to be an offer. In the former example a Dixon's store had a promotion advertised on an A-board outside their store.
Although the central point of argument was based upon whether the notice was confusing and breached consumer protection legislation the point of relevance is that the House held it be an offer; Lord Roskill (obiter) 'I find myself in complete agreement with the reasoning of the Divisional Court on this issue: "The notice is a continuing offer and whether it is misleading or not can only be tested by somebody taking up the offer. "' The second issue with this preconception is that negotiation is an outdated concept in the modern retail consumer market, albeit for a small section, i. . markets and small privately run retail outlets. It is unlikely that you local Marks & Spencer's manager will entertain your efforts to barter on the price of a pair of Y-fronts. In essence most of our purchases are of items that are displayed on a take-it-or-leave-it basis. 16 Having established that the more suitable label to attach to Gucci's notice is that of an offer the next hurdle is to prove that Jones successfully accepted the offer and that the offer wasn't revoked.
As was previously identified, acceptance in unilateral contracts is achieved by way of completing the stipulated act17. In addition, the acceptance has to be both final and unqualified - 'an acceptance of an offer is an indication, express or implied, by the offeree made whilst the offer remains open and in the manner requested in that offer of the offeree's willingness to be bound unconditionally... '18. In the present case Jones was the first customer through the door therefore she has completed the sine qua non and completed acceptance.
Going further however, I would go so far as to conclude that Jones had commenced performance of the acceptance on the Friday when she set up camp outside the shop19. Whilst it is acknowledged that this is not the same type of performance as is generally associated with a unilateral contract, i. e. that you have commenced washing my car or have begun the walk from London to York20, it is nevertheless an integral part of Jones being the first customer in the queue so that she is the first through the door.
If this latter point is accepted then any revocation of the offer would be invalid - 'there must be an implied obligation on the part of the offeror not to prevent the condition becoming satisfied, which obligation it seems must arise as soon as the offeree starts to perform'21. If however this latter point is not accepted then we must focus our attention on the revocation. Revocation is in principle a straightforward concept; if the offer has been accepted then it cannot be revoked22, furthermore the revocation must be communicated to the offeree or the audience to whom the offer is made23.
In the case of the unilateral offer communication would be by the same method that the original offer was made - 'where an offer is made to all the world, it may be revoked by giving the same notoriety to the revocation as to the offer'24. In the present case it is evident that Gucci did not communicate the revocation, demonstrated by the fact that Jones thought nothing of the notice and the coat being removed from the shop window. On this basis it is averred that the revocation was not adequately performed and that Gucci is therefore bound by contract to honour their promise.
Insofar as considering this notice to have been advertised in a newspaper rather than the shop window we would be tasked with answering many of the same questions. Again the first issue to settle would be whether the advertisement amounted to an ITT or an offer. Of the authorities available on this areas the cases can generally be distinguished on the basis of either being a bilateral or unilateral contract, with the former category being held to be ITT25 for the same reasons as discussed above (protection for the offeror), and the latter being held to be an offer26.
Acceptance of the offer would not differ simply because the medium in which the offer was made was different and therefore the above argument would be maintained. Where a difference would arise however is on the issue of revocation. As was identified above, in the case of a unilateral offer, revocation must be communicated in the same manner in which the offer was made27, therefore unless Gucci had revoked the offer by advertising in the same newspaper it could be concluded that the revocation would not be valid and Gucci would be bound by contract to honour their promise.