An offer is effective when and not until it is communicated to the offeree. Thus offeree’s are required to accept agreement upon reference to the offer. It has been established that an offeree cannot accept an offer of which he has never heard. In Kitch V. shedacker1 it was established that a reward cannot be claimed by one who did not know that it had been offered. A person who does an act for which a reward has been offered in ignorance of the offer cannot say either that there was a consensus of wills between him and the offeror, or that this act was done in respect to the promise offered. On no view of contract can such a person set up a right of action.
It is a general principle that one cannot be forced to accept and pay for that which he ad no opportunity rejecting. The forgoing principle connotes that acquiescence cannot be presumed from silence. In Taylor. V. Laird2 the plaintiff was engaged to command the defendants ship and conduct certain explorers upon an expedition. He threw up his command in the course of the expedition but helped to work the vessel home without the knowledge of the defendant. He later claimed remuneration. It was established that he could not recover as evidence of recognizes or acceptance of service was necessary to effect such arrest.
Acceptance means in general communicate acceptance (Arson 1964). That communication should reach the offeror and should not be by mere mental assent only. It must be expressed through words or conduct. In Brogden V. Metropolitan Railway co.3 Lord Blackburn stated that the formulation of a contract occurs when the acceptor does something to signify his intention to accept and not when he has made up his mind to do so. Mental acceptance is thus inefficient Felthouser V. Bindley4
We have seen that acceptance of an offer requires more than a tacit formation of the intention but English Law provides that acceptance is not complete unless and until it is communicated to the offeror. An offer is accepted when acceptance is made in a manner prescribed or indicated by the offeror5 but in certain exceptional cases, for reasons of convenience it is held that the offeror is bound even though the acceptance by post has not reached him. This is so in the case of an acceptance by post or telegram.
The rule holds that the acceptance is normally regarded as being complete when the letter is posted. (Punlof V. Higgins (1848) 1H.L.C. 381) or when the telegram is handed in. (Re Imperial hand, Co. of Marseilles.) An offer made to one who is not in immediate communication with the offeror remains open and available for acceptance until the lapse of such time as is prescribed by the offeror. During this time the offer is a continuing offer and may be turned into a contract by acceptance. In Adams V.Lindsell6 by a letter dated 2nd September 1817, the defendant offered to sell to the plaintiffs a certain quantity of wool, and added receiving your answer in course of post.
If the letter containing this offer had been properly directed an answer might have been received by 7th but it was misdirected and did not reach the plaintiffs until the 5th so that their acceptance posted the same day was not received by the defendant until the 9th. On the 8th however, that is before the acceptance had arrived, the defendant sold the wool to another. It was held that the defendants were not bound by their offer when accepted by the plaintiffs until the answer has received.
(3) The doctrine of vicarious liability is to the effect that liability rest on the person who was not responsible for the injury caused but that such liability arises owing to the legal relationship that exists, between the person who committed the act and the master (principal) legal relationship that amounts to imputed negligence includes such relationship as of an employer employees, master-servant et cetera. In such cases both or all of those liable are called joint tort feasers.
If an act is done in the course of employment, if it is of class of acts, which is expressly, or impliedly authorized to do, it makes no difference that the method employed by the employees was unauthorized or forbidden or the act was done negligently. In Lioyd V. Grace, Smith & Co. 1912 a solicitor was held to be vicariously liable for fraudulent advice given by his clerk to a client, since such relationship was that of an employer-employee. A master is also liable if the servant is doing improperly what he was employed to do properly. In Limpus V. L.G.O.C 1862 a bus company was held liable for an accident caused by their bus driver racing to a stop to collect passengers, even though racing had been forbidden.
Thus it can be concluded from the forgoing examination that speedy-fit in relation to the doctrine of vicarious liability falls under the category of a joint tortfeasers. This is because the relationship of a servant and master does exist between Arnold (the employee) and speedy-Fit (the employer).
Exceptions however lie to this concept of vicarious liability in instances where the contract constitutes of an independent contractor. In LCG V. Caffermoles Garages Ltd 1953 a bus company was held not liable for negligent driving by a bus conductor who had been allowed by the driver to take the wheel of the bus for the purpose of driving instructions, since conductors are not employed to drive. However in instances where the employer has not taken reasonable care to select a competent contractor such liability would hold. Similarly, where liability is absolute and independent of negligence, the employers are considered to be vicariously liable for such acts.
This rule was promulgated in the leading case of Rylands V. Fletcher 1868 where the defendant employed an independent contractor to construct a reservoir, seeped through the old mine shaffs which has been filled with earth and eventually flooded the plaintiff’s mine. It was found as a fact that the defendant had not been negligent, nevertheless, he was held liable in that he collected water on his land and thus it had escaped and caused damage
REFERENCESAnson W. (1964) Principles of Contract Law of England, Oxford University Press, New York.
Holmes W. O. (2000) Legal Theory and Judicial Structure; Cambridge University Press
Cathrine E. and Frances Q. (2007) Tort Law, (6th Ed) Oxford University Press, New York
1 (1868), 38, N.Y. 248; contradictory decision was held in Gibbons V. Proctor (1891), 64 L.T. 594 a police officer was entitled to a hand bill reward even though he was not aware of the hand bill before giving such information.2 (1856), 25 L.J. EX. 3293 1877, 2 App. Cas.6664 (1862), 11 C.B., N.S. 8695 Carlill V. Carbolic Smoke Ball Co. (18930 1 Q.B. 256.6 (1818), 1 B. & Aid. 681