THE
LAW
PAGE
By David Allen
Invitations to Treat
Invitations to treat: Is distinguished from an offer in that it is where one party invites the other to make the offer.

Examples of this are advertisements, self service displays in shops, shop window displays, auctions and requests for tenders.

Advertisements:

Partridge v Crittenden (1968)

P placed an advertisement which read "Bramblefinch Cocks, Bramblefinch Hens, 25 shillings each." The advertisement was placed in a general classified section and did not use the words "offer for sale". He sold a bird to a third party who opened its box in the presence of C, an RSPCA inspector. From the bird's leg ring, it was apparent that the bird was a wild bird and had not been bred in captivity. To offer such a bird for sale was an offence under the Protection of Birds Act 1954. P was charged with that offence, and convicted, but the conviction was quashed on appeal. The advertisement was deemed to be an invitation to treat and not an offer for sale. Therefore, the offence could not be demonstrated to have occurred. P could have been charged with the offence of the completed sale, but the prosecution had instead chosen to rely on the offence of "offering for sale" and had then failed to establish that offence.

Harris v Nickerson (1873)

An auctioneer advertised that he intended to auction some office furniture, but withdrew the items from the auction before the sale. The plaintiff had made a special journey in order to purchase the furniture and tried to sue the defendant for time lost in attending the auction. The court held that there had been no contract and, therefore, that there could be no breach. The advertisement constituted an invitation to treat and not an offer. The intention to hold an auction is not the same the offer of items for sale, and, in any event, it would not be feasible to accept such an 'offer' prior to the actual auction.
Point of Law is an advertisement is usually an invitation to treat and not an offer. It is an invitation to the prospective purchasers to make an offer which may then be accepted (or not) by the advertiser.


Self-service displays in shops:

Pharmaceutical Society of Great Britain v Boots Cash Chemist (1953)

This was a criminal case relating to the purchase of listed "poisons", which could only be sold under the supervision of a registered pharmacist, in accordance with the Pharmacy and Poisons Act. In Boots self-service store, these products (and others) were displayed on shelves, from which customers removed them, taking them to a cash desk for purchase. There was a registered pharmacist standing by the cash desk. The PSGB alleged that these procedures infringed the Act. The Court of Appeal held that the setting of goods upon shelves was merely an invitation to treat and that the actual sale took place when the customer offered payment at the cash desk and was under the supervision of the pharmacist. This case established the point at which a contract is entered into in shops and supermarkets.
Point of Law was goods displayed on shelves are not offers but rather are invitations to the customer to make an offer to the shop assistant or shopkeeper.


Shop Window Displays:

Fisher v Bell (1960)

A shopkeeper had a flick knife on display in his shop window, with a price tag on it. He was charged with the offence of offering for sale an offensive weapon, but was acquitted as, in fact, he had merely invited offers.
Point of Law was an item displayed in a shop window is not an offer to sell but an invitation to treat.


Auctions:

Payne v Cave (1789)

The display of goods at an auctioneer's table and auctioneers call for bids is an invitation to treat. Bids are offers, the highest bid forms the offer which stands. The fall of the hammer is the acceptance. The contract is between the highest bidder and the owner with the auctioneer acting on the behalf of the seller. Until the hammer falls the offer can be withdrawn.
All offers can be withdrawn up until acceptance. (revocation of an offer)


Request for tenders:

Spencer v Harding (1870)