In general, an advertisement does not constitute an offer, it is simply an invitation to treat as established in Partridge v Crittenden (1968) . Whilst this is the general principle, in Partridge v Crittenden, Parker LCJ highlighted “unless they come from manufacturers, there is a business sense in their being construed as invitations to treat and not offers for sale…”. This is because there is an expectation that manufacturers, like Yummy Chocolate Ltd, are able to meet demand. Carlill v Carbolic Smokeball Co. (1893) creates an exception to the general rule in Partridge v Crittenden, as in this case an advertisement constituted a unilateral offer. This creates a principle whereby an advertisement that requests the performance of an act will be an offer providing there is a clear intention to be bound; established in Storer v Manchester City Council in which the council’s letter stated “if you sign the Agreement and return it to me, I will send you the Agreement signed on behalf of the council in exchange”. Like Carbolic Smokeball Co and Manchester City Council, the language used by Yummy Chocolate Ltd indicates a clear intention to be bound promising a year’s supply of chocolate to “any person who walks from Manchester to their factory in Birmingham by 6th April”.
If the advert is construed as a unilateral offer, it is necessary to ascertain whether Mick preparing for the walk is an acceptance of the offer. It is unlikely that Mick buying walking shoes, waterproof clothing and joining the gym would constitute the start or fulfilment of the performance as there is an anticipation Mick could withdraw; as determined by the House of Lords in Luxor (Eastbourne) Ltd v Cooper (1941) . In Luxor v Cooper it was determined that commission was payable only on completion as the nature of the offer meant the offeror reserved the right to revoke any time before completion. This idea that preparation is not performance is further supported in Harris v Nickerson (1823) which ruled that the claimant did not fulfil the contact by attending auction, only the actual bid would’ve formed a contract.
Whilst an offer can be revoked at any time prior to acceptance providing the revocation is successfully communicated, evidenced in Byre v Van Tienhovem (1880) , Shuey v United States (1875) established a special rule in the cases of unilateral offers where the offer is made to the world and the offerees are unidentified – Poole . In Shuey v United Stated, Strong J stated, “it could be revoked in the same manner in which it was made”. Yummy Chocolate Ltd published the original advertisement in several national newspapers in comparison to the redaction being published in the newsletter “short but sweet”. This can be distinguished from Shuey v United States and so, may not constitute a sufficient revocation.
If the offer has not been revoked via the publication in “Short but Sweet”, common law supports that on the 21st March, once Mick began the walk to the factory in Birmingham, the offer could no longer be revoked. Whilst an offeror can require full performance and the contract cannot be accepted until the completion of the performance, the power to withdraw an offer is lost once the offeree embarks upon performance. This position was supported by Goff LJ, in Daulia Ltd v Four Millbank Nominees Ltd (1978) , who stated “once the offeree has embarked on performance it is too late for the offeror to revoke his offer”. Further support can be found in the obiter decision in Errington v Errington and Woods (1952) , at page 295, Denning LJ said “the fathers promise was a unilateral contract – a promise of the house in return for their act of paying the instalments. It could not be revoked by him once the couple entered onto the performance of the act but it would cease to bind him if they left it incomplete and unperformed”.
Should the offer still able to be revoked by Yummy Chocolate Ltd, we need to consider if the notification of the cancellation from Damien, is revocation of the offer. Dickinson v Dodds (1975-76) suggests that notification of the withdrawal from Damien as a third party is as effective as a withdrawal from Yummy Chocolate Ltd themselves. Peel , cites Dickinson v Dodds as authority for the principle that there is sufficient communication if the offeree knows from ‘any reliable source’ that the offeree no longer intends for the contract. Whilst it is accepted that a revocation does not need to be communicated by the offeree, there is some question surrounding how a third-party source can be determined as ‘reliable’. It could be argued that Mick’s case can be distinguished from Dickinson v Dodds, as Damien is a stranger to Mick and is not acting on Yummy Chocolate Ltd.’s behalf.
If there is still a unilateral offer from Yummy Chocolate Ltd, Mick does accept the offer when he arrives at factory in Birmingham prior to April 6th. This is supported in the case of Soulbury v Soulsbury (2008) where by not enforcing the county court order, the wife fulfilled the performance required in the unilateral contract. As mentioned previously, in Errington v Errington and Daulia Ltd v Four Millbank, the offeror is unable to revoke an offer once performance has commenced. However, as Goff LJ stated “the offeror is entitled to require full performance of the condition which he has imposed and short of that he is not bound”, as Mick completed his performance the contract, if still present, was accepted.