48 Chapter 2Making a contract
occur. No universal rule can cover all such cases; they must be resolved by reference to the inten-
tions of the parties, by sound business practice and in some cases by a judgment where the risks
should lie.It does seem fairly certain that if an acceptance by telex or fax is received during office hours
it is effective when received and not when it is noticed. In BrinkibonLord Fraser said: ‘Once
the message has been received on the offeror’s telex machine, it is not unreasonable to treat
it as delivered to the offeror, because it is his responsibility to arrange for prompt handling
of messages within his own office.’ Lord Fraser also made the point that the acceptor by
telex can generally tell if his message has not been received, whereas the offeror would not
know that an unsuccessful attempt had been made to send an acceptance.the Internet Offer and acceptance made over
As yet there have been no significant decisions by the courts as to when a contract is
concluded over the Internet. There are two main ways in which such a contract might be
formed. First, a contract could be made by exchange of emails. Second, a customer might
visit a website and buy goods or services described there.
The position where emails have been exchanged should be catered for by the common
law rules already considered in this chapter. The courts will take an objective view of an
email and consider whether it was an offer, an acceptance or an invitation to treat. An offer
might or might not be of a unilateral contract. The most likely difficulty to arise will be
deciding precisely when an acceptance by email is effective. The general principles laid down
in relation to telex seem likely to be applied. However, email differs from communication
by telex in that a person who sends an email does not immediately know whether or not it
has been received. In some ways acceptance by email is more similar to acceptance by letter
than to acceptance by telex. However, it seems very unlikely that the postal rule will apply.
The approach of the courts has been to restrict the rule rather than to expand it. It seems
much more likely that the statement of Lord Wilberforce in Brinkibon, set out above, will
apply to acceptance by email. This statement does not provide a cast-iron answer applicable
to all situations. It indicates that the court will be flexible and will look at the intentions of
the parties, sound business practice and a judgement as to where the risks should lie.
In general, websites which describe goods and services and the prices at which they are
available will be making invitations to treat rather than offers. This would be particularly
true if the material on the website makes it plain that it is the customer who makes the offer
and that his offer might or might not be accepted. The customer might accept the offer by
clicking on a button. Any acceptance would be effective when the customer was informed
that his offer had been accepted. However, there is no reason why a website should not
make the offer of a unilateral contract. If this were the case, then the contract would be con-
cluded as soon as the customer had performed the stipulated act of acceptance (generally
by clicking on an acceptance button).
As we have seen, the key question when dealing with the conclusion of contracts is the
time when the acceptance is effective. The Electronic Commerce (EC Directive) Regulations
2002 are concerned with the formalities which must be complied with when a contract
is concluded by electronic means. They do not deal, as such, with the time at which the
contract is concluded. In any event, as we shall see in Chapter 5, the question is often of
little relevance in consumer contracts because the Consumer Protection (Distance Selling)
Regulations 2000 give consumers the right to cancel concluded distance contracts. However,
the Regulations give no such right to non-consumers.