Acceptance 47Nicolene Ltdv Simmonds (1953)the defendants agreed to sell 3,000 tons of reinforced steel
bars to the claimants. It was agreed that ‘the usual conditions of acceptance apply’. There
were no usual conditions of acceptance and the defendants therefore claimed that there was
no enforceable contract. However, the Court of Appeal held that if the words were mean-
ingless they could be ignored, leaving behind an enforceable contract.
Lord Denning explained that if a party to a contract could escape from it on account of
having discovered a meaningless term, anyone who did not want to be bound by a contract
could be found looking through it for a meaningless term which would provide an escape
from liability.
When the parties have previously dealt with each other their previous dealings might
well indicate what has been agreed. For example, if in Nicolene Ltdv Simmondsthe two
parties had made similar contracts on several previous occasions it might well have been
certain what the usual conditions of acceptance were. The decision in Scammelv Ouston
might also have been different if there had been previous dealings between the parties. If
the furnishers had previously taken vans from the defendants on hire purchase terms, the
words ‘the balance of the purchase price can be had on hire-purchase terms over a period
of two years’ might have been sufficiently certain to mean that there would have been a
binding contract.
machines Offer and acceptance when dealing with
It has become common for people to buy goods (or tickets which entitle them to services)
from machines. At first sight this seems to cause considerable difficulty in finding the offer
and the acceptance. The customer cannot make both the offer and the acceptance so the
machine, on behalf of the supplier of the goods or services, must make either the offer or
the acceptance.
In Thorntonv Shoe Lane Parking Ltd (1971)(Court of Appeal) Lord Denning MR
analysed the position when a customer is given a ticket by a machine. He concluded that
the contract was completed not when the customer received the ticket, but as soon as the
customer became irrevocably committed to the contract. In the case of a machine which did
not have a coin refund this would be as soon as he put his money into the machine. He said:
The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back.
He may protest to the machine, even swear at it. But it will remain unmoved. He is committed
beyond recall. He was committed at the very moment when he put his money into the machine. The
contract was concluded at that time. It can be translated into offer and acceptance in this way: the
offer is made when the proprietor of the machine holds it out as being ready to receive the money.
The acceptance is made when the customer puts his money into the slot.Earlier in this chapter we considered Entores Ltdv Miles Far East Corporation (1955), and
saw that an acceptance by telex will generally be effective when it is received. However,
difficulties with contracts concluded by machines may arise where the acceptance is
received out of office hours or in the middle of the night. In Brinkibon Ltdv Stahag Stahl
und Stahlwarenhandelsgesellschaft GmbH (1983)(House of Lords) Lord Wilberforce,
dealing with communication by telex, made it plain that the courts will take a practical,
flexible approach.
The message may not reach, or be intended to reach, the designated recipient immediately: mes-
sages may be sent out of office hours, or at night, with the intention, or on the assumption, that they
will be read at a later time. There may be some error or default at the recipient’s end which prevents
receipt at the time contemplated and believed in by the sender...And many other variations may