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It is a memorial prepared for the defendant the owner of a shop side who is sued by the plaintiff on behalf of a e-mail based contract.
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ENUNCIATED IN ENTORES Ltd V/S MILES FAR EAST CORPORATION IS APPLICABLE TO THE PERTINENT CASE?...........................................................
STATUTES
CODE OF CIVIL PROCEDURE, INDIAN CONTRACTS ACT, 1872 INFORMATION AND TECHNOLOGY ACT, 2000
All Answers Ltd. (November 2018). Public Advertisements Do Not Constitute an Offer. VOID AB INITIO AGREEMENT: EVERYTHING YOU NEED TO KNOW, UPCOUNSEL
All Answers Ltd. (November 2018). Where Means of Communication Are Deemed Instantaneous.
Ankit Kumar, a resident of Sonipat has opened a new shop in the name & style of ‘Bakers Pride’. As the shop was new and unknown in the market hence he wanted to gain popularity in the market through quick means. So, He decided to publish an advertisement in a local paper with claiming that he had 20 boxes (only) of luxury chocolate named ‘Sweet Tooth’ and he would be selling these at a discount rate of $100/- per box instead of the original retail price of $200/-. And those whom are interested should contact him either in person at his shop or via email or via his website.
Ritika Saw that advertisement and sent an e-mail, thinking it as an Offer to Ankit Kumar, owner- Bakers Pride for an order of 6 luxury chocolate ‘Sweet Tooth’ boxes. On the other hand, the advertisement strategy to gain quick popularity didn’t work out well as was hoped by Ankit hence on next day, he again got published another advertisement in the same local daily with stating that the previous offer has been expired and the discount price is no longer available. Ritika, even after placing an order for 6 luxury chocolate ‘Sweet Tooth’ Boxes went onto Bakers Pride website and placed another order for 2 extra boxes, but wasn’t able to complete the payment process. The offer had already expired when Ankit read the E-mail sent by Ritika and Refused to sell her the boxes.
Ritika, the alleged victim customer file a petition under the Section 73 of Indian Contracts Act, 1872 against Ankit Kumar, Owner- Bakers Pride before the Hon’ble District Court, Sonipat claiming that Ankit Kumar, Owner- Bakers Pride did ‘Breach of Contract’ by not fulfilling her order and she should be provided with damages for the same and that the Hon’ble Court must investigate into the matter further as it is within its jurisdiction.
It is most humbly submitted before the Hon’ble Court that there was no valid contract between the plaintiff and the defendant. That the advertisement published by the defendant was merely an ‘Invitation to an Offer’ and that there was no intention on the defendant’s side for that advertisement being treated as an ‘Offer’. That in light of the facts mentioned, there wasn’t a valid Contract between the two parties.
ENUNCIATED IN ENTORES Ltd V/S MILES FAR EAST CORPORATION 1 IS APPLICABLE TO THE PERTINENT CASE?
It is most humbly submitted before the court that the principle of the aforementioned case is completely applicable to the pertinent case. The ruling by Justice Denning JP that the concept of Postal Rule wasn’t applicable to Instantaneous Mode of Communication is very crucial to the present case.
As E-Mail, the mode of communication used by the plaintiff was an instantaneous mode of communication, hence the concept of ‘Postal Rule’ cannot be applied. This renders the plaintiff’s claim of having a contract with the defendant redundant and invalid. Thereby making the petition not maintainable before the Hon’ble court.
It is humbly submitted before the Hon’ble Court that no ‘breach of contract’ was done by the plaintiff. As stated earlier in issue 1 and 2, there was no valid contract between the two parties. The question of Breach of Contract can only arise if there is a valid contract between the two parties. But in the present matter, there was no valid contract between the two. Therefore, the defendant can’t be held liable for Breach of Contract.
(^1) Entores v Miles Far East Corp [1955] 2 QB 327
It is humbly submitted before the Hon’ble Court that there was no valid contract between the plaintiff and the defendant. That the advertisement was not for the purpose of ‘Offer” but for ‘Invitation to an Offer’ purpose only. That no specific words like ‘Offer”, ‘Acceptance’, as used in contractual advertisements 2 were used in defendant’s advertisement.
That a public advertisement doesn’t amount to an ‘Offer’^3 , rather only to an ‘Invitation to Offer’ and that it was mistake on PLAINTIFF’s side to consider this invitation to offer as an offer. This alleged contract, as it is based upon ‘ ignorantia facti’^4 i.e. misunderstanding of facts on PLAINTIFF’s side is Void Ab Initio 5 and should be declared an Invalid Contract.
A Contract is a legally binding promise made between 2 or more than 2 parties in order to fulfil an obligation in exchange of consideration (something of value). For a Contract to be considered as a ‘Valid Contract’, it must have four key elements: Agreement, Capacity, Consideration and Intention.
An Agreement consists of 2 things: Offer and Acceptance. The defendant didn’t want to propose, through advertisement any ‘Offer’ regarding sale of those luxury chocolate boxes to the plaintiff, rather the defendant wanted to invite Offers from public
As there was no Offer from the defendant’s side, there cannot arise any question regarding that of Acceptance.
The case Harvey v/s Facey 6 , is an example which explains the distinction between an “offer” and an “invitation” to receive offer. The Privy Council Held that, “Their Lordships are of opinion that the mere statement of the lowest price at which the vendor would sell contains no implied contract to sell at that price to the person making the inquiry .”
(^2) https://www.legal.io/guide/551c797e777777655d8e0000/What-Do-You-Mean-We-Have-A-Contract-How-to- Prevent-an-Email-Exchange-From-Inadvertently-Becoming-a-Binding-Contract (^3) https://www.lawteacher.net/free-law-essays/contract-law/public-advertisements-do-not-constitute-an-offer- contract-law-essay.php (^4) https://definitions.uslegal.com/i/ignorantia-facti-excusat/ (^5) https://www.upcounsel.com/void-ab-initio-agreement (^6) Harvey v Facey [1893] UKPC 1, [1893] AC 552
ENUNCIATED IN ENTORES Ltd V/S MILES FAR EAST CORPORATION 10 IS APPLICABLE TO THE PERTINENT CASE?
It is humbly submitted before the Hon’ble Court that the principle enunciated in Et. Ltd V/s MFEC is applicable and highly appropriate to the pertinent matter. That the principal enunciated regarding that of Concept of Postal Rule not being applicable to instantaneous mode of Communication is highly related to the pertinent matter.
That this general principle on acceptance was held to be applied upon all forms of instantaneous communication methods. Acceptance by the offeree, via these forms of communication must be clearly communicated to the offeror. That offer and acceptance must to be accepted at the same time by both the parties.
The Supreme Court in Bhagwandas case^11 has held that Section 4 of the ICA, 1872 is only applicable to forms of communication that are not instantaneous. Therefore, the question of application of Postal Rule of Communication can’t be applied to the pertinent matter. Thus the acceptance sent by the plaintiff is null till the time it is read and answered by the defendant.
2.1 THAT E-MAIL AS AN INSTANTANEOUS MODE OF COMMUNICATION
E-Mail is considered as an instantaneous form of communication 12 which means that postal rule isn’t applicable to contracts made via email. That the mode of communication, in the present case is also E-Mail. That sending of acceptance by the plaintiff can be considered only if her acceptance via e-mail came into the notice of Defendant before his revocation of the offer.
That it is necessary for the offeree to get a Read Receipt from the offeror 13 without which acceptance can’t be considered and the plaintiff did not get anything like read receipt from the defendant’s side.
VALIDITY OF E-MAIL IN ICA, 1872: There is, basically no statuary provision in ICA, regarding the validity of contracts formed in an electronic manner i.e. via E-Mail. Though courts at many times have given judgements stating the validity of the Contracts through Email, but the directions, still are not clear. And there are potential issues with the judgements regarding
(^10) Entores v Miles Far East Corp [1955] 2 QB 327 (^11) https://indiankanoon.org/doc/1386912/ (^12) https://www.lawteacher.net/free-law-essays/contract-law/where-means-of-communication-are-deemed- instantaneous-contract-law-essay.php (^13) https://www.turtons.com/blog/can-contractual-notices-be-sent-by-email
electronic contracts 14. Hence no clear insight can be considered from this legislation into the present matter.
VALIDITY OF E-MAIL IN IT ACT,2000 : Under the provisions of the Information ‘Technology Act, 2000’ particularly Section 10-A 15 , an electronic contract is valid and enforceable. The only essential requirement to validate an electronic contract is compliance with the necessary pre- requisites provided under the ICA, 1872. But the present contract, as proved earlier doesn’t satisfy any of the pre-requisites provided under ICA,1872 and is thus rendered invalid.
The Defendant hereby maintains that there was no breach of contract from his side as there was no valid contract in the first place to breach with. LOL When Ritika got to know about the defendant refusal to sell her the boxes, she filed a petition before the Hon’ble Court against the defendant for alleged ‘Breach of Contract’ to claim damages
That there was no valid contract between both the parties and that the alleged charge of Breach of Contract is not backed by any evidence that can prove that there was, if any contract between the two. That the petition U/S 73 16 of Indian Contracts Act, 1872. is not valid and maintainable.
The Indian Contract Act, 1872, Section 5 states “ A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards.”
The defendant’s plan to gain popularity through the sale gimmick didn’t work out as per his expectations. And on next day, he got another advertisement published which stated that the sale has expired and is, now no longer available. Ritika got this news at 10.30 AM and Ankit read her email at 10.35 AM. The defendant had already revoked his so-called offer and also it came into the petitioner’s notice atleast 5 minutes before her acceptance being read for consideration. Therefore, it is submitted before the Hon’ble court that even if there was any offer from defendant’s side, that too had already expired by the time the plaintiff’s acceptance came to the notice of defendant. Thus making the acceptance redundant and invalid.
(^14) https://journal.rostrumlegal.com/e-contracts-mail-box-rule-and-legal-impact-of-the-information-technology-act- 2000-by-atul-kumar-pandey/
29.^15 Universal Publication, The Information Technology Act, 2000, Section 10A (^16) Section 73, The Indian Contract Act, 1872, Publication-Universal,2012 edition\ , https://indiankanoon.org/doc/339747/
In light of the facts, legal precedents and principles cited and in light of the studies relating to the case referred to, the Defendant most respectfully prays to the Hon’ble Court to adjudge and declare That:
And pass any such order or direction that the Hon’ble courts deems to be appropriate, for this the defendant shall be duty bound to accept.
It is hereby verified that the contents of the above petition are true and correct to the best of my knowledge and nothing has been concealed therein.
Sonipat sd-/-
