in that the communication has to be received for acceptance to be valid.
Again, some similarity can be found between the two, since a telex is
relatively instantaneous, receipt is acknowledged and the message is not
entrusted to a third party (apart from its travel along telephone lines). This
Court of Appeal decision was upheld by the House of Lords in Brinkibon
Ltd v Stahag Stahl (1982). The outcome is reasonable in the light of the
examples given in Entores as it is immediately obvious to the sender of a
telex when something has gone wrong, so it should be the duty of the
sender to try again to ensure that the message is correctly received.
Other modern methods of communication
Modern methods of communication obviously present a problem legally.
So far we have decided cases concerning letters (Adams v Lindsell, etc.),
telegrams (Cowan v O’Connor) and telex (Entores and Brinkibon).
However, technology is developing fast, and it is quite common now to
communicate by, for example, fax, computer modems, e-mail, text
messages on mobile telephones and pagers, and courier services. It is
difficult to predict exactly how these would be viewed by the courts as
fitting in with existing principles of offer and acceptance, but a pattern of
reasoning does seem to emerge.
Certain methods may treated as letters. This will apply to telegrams.
Providing it is reasonable to communicate in this way, and a reply in writing
is not specifically requested, the postal rule will apply. It would seem
reasonable to suggest that a reply by courier might also come within this
category, since it is handed over to a third party for delivery, and there is
some time delay (which is the chief reason for devising the postal rule).
Other methods may be treated as telephone calls. This will apply to telex.
Because of the almost instantaneous reply, these must be communicated. It
would seem reasonable to suggest that fax, computer modems and e-mail
might come within this category, as they, too, can result in an almost
instantaneous communication with acknowledgement of receipt.
In summary, the following guidelines might be applied to a modern
method of communicating to try to decide which approach may be
appropriate:
- Is the method relatively instantaneous?
- Is the communication entrusted to a third party for delivery?
- Is there acknowledgement of receipt?
30 Contract law
You could now apply the above principles to each of the various modern
methods of communication with which you are familiar, to see if it should be
treated like a letter or like a telephone call.