13 counsel for the first defendant had contended that

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[13] Counsel for the first defendant had contended that exh P1 did not constitute an offer but was in substance an invitation to treat. There was therefore here a question of whether there was any evidence of intention that exh P1 was intended to be binding. Chitty on Contracts had pointed out that when parties negotiate with a view to making a contract many preliminary communications may pass between them and it is therefore not necessarily always the case that a definite offer was made.
[2005] 3 MLJ 439 A B C D E F G H I Nai Yau Juu v Pasdec Corp Sdn Bhd & Anor (Heliliah J) [14] In the circumstances of the case there was a further need to examine what is termed as a unilateral contract. Unilateral contract can be drawn from advertisements but even in advertisements where a house is advertised there are often further bargaining. The parties may legitimately also wish to ascertain that the other party is also financially able to undertake the transaction. [15] The case of Carlill v Carbolic Smoke Ball Co Ltd [1893] 1 QB 256, has always served as an example where clear terms could constitute an offer. Various interpretations may also be given to a contract of carriage when tickets are offered for sale. In this instance it is useful to revisit the Carbolic case: ‘The defendant issued an advertisement promising to pay £100 to any person who used a carbolic ball made by them in accordance with certain directions and then caught influenza. This was held to be an offer, the defendant’s intention to be bound being made particularly clear by their statement that they had deposited £1000 with the bankers ‘showing our sincerity in the matter’ . [16] In advertisements a seller circulating a price list or other promotional materials giving particulars of the products for sale is usually also said not to be making an offer. Even if the word ‘offer’ were to be used as in the case of Spencer v Harding (1870) LR 5CP 561 it was held that a circular stating that ‘we are instructed to offer to the trade for sale certain described goods’ was merely an invitation to treat and not an offer capable of acceptance. [17] The case of Ekchardt Marine GMBH v Sheriff High Court of Malaya Seremban & Ors [2001] 4 MLJ 49 also dealt with advertisements. The facts as found in the head notes stated: The sheriff of the Seremban High Court had arrested a motor vessel at Port Dickson and later put it up for sale by way of an advertisement. The appellant sent an offer to the sheriff together with a letter and a banker’s draft for 10% of the purchase price. The letter made it clear that the offer was on the sheriff’s terms, but subject to two conditions: that the port authority did not require any repairs to be done to the vessel and that the vessel could leave on its own power on the basis of a seaworthiness certificate issued by an appointed surveyor of the underwriters. The sheriff accepted the appellant’s offer, which was below the advertised price, and took out a summons seeking leave of the judge to conclude the sale. The judge

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