Differing offer and Invitation to Treat

        The issue is to advise on the differences of offer and invitation to treat in the formation on contract. I agree with the above statement.  

        As governed by Section 2(a) Contracts Act 1950, an offer is made where offer terms are stated clearly by offeror and where he has intention to perform his obligation as agreed.  An offer can be made to a specific person, where only the offeree is authorized to acceptance. Offer may be made to public, in cases such as advertisement offering a reward for services to be rendered.  

        In contrast, there is no section to govern invitation to treat and certainly the conditions in Section 2(a) Contracts Act 1950 cannot be applicable. When a party proposes to negotiate however not expressing his final willingness, he is inviting the other party to make an offer. Examples of invitation to treat would include advertisement, tender, sale in self-service shop, catalogue, auction, statement of the lowest price and others.

        One of the supporting case is the case of Harris v Nickerson (1873). An advertisement of office furniture sale which would be held at the city of Bury St Edmunds in London newspaper was advertised by a defendant, an auctioneer. A commissioned broker from London attended the sale to buy the item, but the item was withdrawn. It was held that the defendant was not obliged to compensate the broker for wasted time. The advertisement was simply an invitation to treat and there was no offer since the item were never put up for sale.  

Following, the case of Partridge v Crittenden (1968). A post up in the Cage and Aviary Birds magazine was placed by Partridge, which stated “Bramblefinch cocks, bramblefinch hens, 25s each”. The advert was responded by Mr. Thompson and he received a bramblefinch hen. Partridge was charged on Birds Act Protection 1954 at the magistrates’ court with “offering for sale” of a wild bird. The Divisional Court of Queen’s Bench Division put down Partridge’s conviction on appeal since his advertisement was not an offer, instead it was an invitation to treat.

The case of Harvey v Facey (1893) is another representing cases. The first telegraph was sent by Harvey to Facey asking whether Harvery would sell them Bumper Hall Pen, which was a plot of land and asked to telegraph the lowest cash price. Facey replied the second paragraph that the lowest cash price offered was £900. Harvey responded in the third telegraph that they agreed to buy the land for £900 as asked by Facey. Harvey refused to sell the land. The Judicial Committee of the Privy Council held that no contract was formed between them as the second telegraph replied by Facey was merely supplying information to invite offer but not making an offer. The third telegram was an offer from Harvey but Facey never accepted it.

In conclusion, offer differs from invitation to treat, where offer is defined as the offeror has intention to perform his obligation as agreed and the offer terms is clear, while invitation to treat states that a party invites the other party to make an offer.  

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