Offers will be express if they are expressly communicated to the offeree either

Offers will be express if they are expressly

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in return. Offers will be ‘express’ if they are expressly communicated to the offeree (either orally or in writing) or they can be ‘implied’ from the way in which the offeror behaves. The importance of intention Whether an offer is express or implied the one essential is that the ‘offeror’ must intend that his or her ‘offer’ will be convertible to binding obligation upon acceptance . In that sense the offer must be promissory in nature. Anything less that a firm promise is not an offer, it cannot be accepted in a contractual sense and, consequently, it cannot give rise to a contractually binding agreement. This was well illustrated in Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424. In that case the Australian Government had announced a subsidy for woollen manufacturers — effectively to reduce the cost of their wool purchases. When the scheme was discontinued the plaintiff had wool in store which it had purchased but for which it had not received the subsidy. The Commonwealth refused to pay and Australian Woollen Mills sued. Its action failed. The ‘offer’ of the subsidy was not an offer in any legal sense; it was simply a statement of government policy that did not give rise to any legally enforceable contractual entitlement — because the government had never intended its subsidy arrangements to result in legally enforceable obligation. As the court put it: an offer should have been intended to give rise, on the doing of the act, to an obligation ... in the absence of such an intention, actual or imputed, the alleged ‘offer’ cannot lead to a contract: there is, indeed, in such a case no true ‘offer’. Offers and invitations to treat Something which indicates a willingness to deal but which falls short of a firm promise to do so is called ‘an invitation to treat’ (the words ‘to treat’ in this context are used in their old meaning of ‘to deal’). Invitations to treat are not offers. They are merely statements of the terms upon which one party may be prepared to deal if the other wants to make an offer. Common examples of invitations to treat can be found in advertisements, displays of goods for sale, requests for tenders and when auctioneers seek bids at auction. The difference between an offer and an invitation to treat is commercially very important. Take, for example, an advertisement of goods for sale. If that advertisement was an offer to sell it could be accepted by everyone who saw it. In effect then the advertiser could find himself or herself with more contracts than he or she could fill and could, therefore, be sued for breach of contract by everyone whose order was not satisfied. Commercially, that would be an impossible situation. However, because advertisements are generally regarded only as invitations to treat (ie invitations to others asking them to make you an offer) it is the other party who makes the offer to buy — on the advertised terms — and the advertiser can then decide whether to accept or to reject that offer. If he or she accepts it a binding
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