There is evidence in Gerald’s favour to prove there is no contract. In Brinkibon Ltd v Stahag Stahl, the judgment specifies that acceptance is effective when and where it is actually brought to the attention of the offeror. In Entores, Lord Denning specified that if “the offeror without a fault on his part does not receive the message of acceptance […] then I think there is no contract.”

However, Harriet may still have a case. Lord Fraser addressed this in Brinkibon stating that “once the message was received […] it is not unreasonable to treat it as delivered […] the responsibility was on the person to arrange for prompt handling of messages in his own office.”

It has also been suggested that acceptance will only take effect when it would have been reasonable for the offeror to check their messages. If Harriet’s texts could have been reasonably read by Gerald before he sold the car, she might be able to sue for breach of contract. Harriet may argue that it is unreasonable for Gerald not to check his phone when he has specified it as the device with which to communicate with him, and in fact that it is his responsibility to.

Prescribed Mode of Acceptance

There is also the question of whether Harriet chose the correct mode of acceptance. In the advertisement, it is stated ‘Please telephone’, and a phone number was given. In Manchester Diocesan Council for Education v Commercial & General Investments Ltd it is held that an offeror who insists on the mode of acceptance being in a particular manner is entitled to say he is not bound unless the acceptance is communicated in that particular way. In this way, if Gerald argues that he specified only telephone calls, then there could be a case to be made that the acceptance is not viable.

However, are telephone calls the only method allowed in this scenario? Tinn v Hoffman appears to provide an argument in Harriet’s favour: the court held that while post had been indicated in the offer, another equally fast method would have been successful, such as a telegram. If Harriet had replied, for example, by sending a letter to Gerald’s business address, that would not have been a method as ‘equally fast’ as a call; however, she answered through text, another instantaneous method of communication, therefore an equally effective mode. An argument could be made that her acceptance would have been binding.

Conclusion

Gerald’s advertisement can be regarded as an offer, not an invitation to treat. There is intent to create legal relations on both parties, as well as consideration. Harriet’s answer to the advertisement can be interpreted as acceptance with a request for information, as she has not stated that she will vary the original terms. Her method of communication is instantaneous, therefore the contract is formed only when Gerald would have received it. Harriet may be able to sue for breach of contract depending on if he could have reasonably checked his texts before he sold the car. I would advise Gerald to argue that he the acceptance was never communicated effectively, and the onus would be on the offeree to ensure it was brought to his attention. Gerald specified ‘telephone please’ in his advertisement, prescribing a mode of acceptance, so he should argue that there is no contract; however Harriet may be able to counter this w