A proposal is main ingredient of a valid contract. The term “proposal” of the Indian Contract Act is synonymous to the term “Offer” in English law. Section 2(a)of the Indian Contract Act, 1872 defines proposal as “when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal”. The person making proposal/offer is called the proposer/offeror and the person to which the proposal is made is called propose or offeree. In this article, we shall discuss types of offer. Section 9 talks of an express offer, express acceptance, implied offer, and implied acceptance. in this article, we shall study communication of offer.

Communication means imparting or exchanging information by speaking, writing, or using some other medium. Chapter I of the Act deals with the communication, acceptance, and revocation of Proposal. An offer and its acceptance, to be valid must be communicated to the other party. Similarly, the revocation offer should be communicated to the offeree by the offeror.

Section 3:Communication, acceptance and revocation of proposals:

The communication of proposals the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it.

Section 4: Communication when complete:

The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.

The communication of an acceptance is complete,—

as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor;

as against the acceptor, when it comes to the knowledge of the proposer.

The communication of a revocation is complete,—

as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it;

as against the person to whom it is made, when it comes to his knowledge.

Illustrations

a) A proposes, by letter, to sell a house to B at a certain price. The communication of the proposal is complete when B receives the letter.

(b) B accepts A‟s proposal by a letter sent by post. The communication of the acceptance is complete, as against A when the letter is post; as against B, when the letter is received by A.

(c) A revokes his proposal by telegram. The revocation is complete as against A when the telegram is dispatched. It is complete as against B when B receives it. B revokes his acceptance by telegram. B‟s revocation is complete as against B when the telegram is dispatched, and as against A when it reaches him.

Communication of Offer:

Section 3 of the Act, lays down that the communication of proposal, acceptance, and revocation is must. It may be expressed or implied. The express communication can be written, through emails, telegraphic, telephonic, minutes of a meeting, words of mouth or conduct. Thus proposal may be communicated in any way which has the effect of laying before the offeree the willingness to do or abstain.

Section 4 para 1 of the Act lays down that the communication of an offer is complete when it comes to the knowledge of the person to whom it is made. When an offer is made by post, its communication will be complete when the offeree receives the letter. In face to face or telephonic conversation, the instant the offeree listens to the offer by the offeror, the communication is complete.

Thus when the offeree (in case of a specific offer) or any member of the public (in case of a general offer) becomes aware of the offer, the communication of the offer is said to be complete.

Understanding the TimeLine of Communication of Proposal:

• A and B are sitting together on a coffee table. A offers his Car for ₹ 2,00,000 to B. The offer reaches the ears of B, the offer of A is complete.
• A calls B on a telephone and offers his Car for ₹ 2,00,000 to B. The offer reaches the ears of B, the offer of A is complete.
• A of Agra by a letter to B of Bhatinda offers his car for ₹ 2,00,000 through by a letter dated on 15^th August 2017. B receives the offer letter on 17^th August 2017. Now the communication of offer is complete on 17^th August 2017 for B (Offeree) and on 15^th August 2017 for A (Offeror).

Case Laws:

In Ram Krishan Singhal v. Executive Engineer, ILR v(1991) 1 Del 275 case, the Court held that a contract can come into existence between the parties by the exchange of letters.

In SBI v. Aditya Finance & Leasing Co. Pvt. Ltd. AIR 1999 Del 18 the Court inferred a lease contract from the correspondence and minutes of the meeting between the parties.

In P. Syamala v. R. Gopinathan (2004) 1 CTC 117 case, there was an oral agreement of sale of property and seller received cheques for the price and encashed them. Court held that in this case, the oral agreement is valid because there was the conclusion of the oral contract and subsequent sale of the property by the seller to subsequent buyer is invalid.

In T. Jayram Naidu v. Yashodha, AIR 2008 NOC 972 (Mad) case, the Court held that an oral agreement for sale is valid and enforceable, proving such agreement may be difficult, but when proved, valid.

In Lalman Shukla v. Gauri Datt (1913) All LJ 489 case A’s nephew has absconded from his home. He sent his servant to trace his missing
nephew. When the servant had left, A then announced that anybody who has discovered the missing boy would be given the reward of Rs.500. The servant discovered the missing boy without knowing the reward. When the servant came to know about the reward, he asked for the same from A. A refused to give the reward. The servant brought an action against A in the court of law to recover the same. But the court held that when the servant discovered the boy, he was not aware of the reward. Thus the offer was not communicated to him. Hence he is not liable to get the reward from A.

In Taylor v. Laird, 25 L.J. Ex. 329 case, the plaintiff was employed as the captain of a ship which was owned by the defendant. Whilst in a foreign port during the course of the voyage, he voluntarily gave up his position as a captain and worked as an ordinary crew member during his passage back to Britain. The defendant was not made aware of this change of position. Upon his return, he sought to claim wages from the defendant for his work as a crew member during this journey. The court held that the plaintiff has not communicated his offer to work as a crew to the defendant and hence he had not entered into any contractual agreement with the defendant for the performance of his work as an ordinary crew member.  hence the plaintiff is not entitled to wages for the return journey.

In Felthouse v Bindley, (1862) EWHC CP J35 case, the complainant, Paul Felthouse, had a conversation with his nephew, John Felthouse, about buying his horse. After their discussion, the uncle replied by letter stating that if he didn’t hear anymore from his nephew concerning the horse, he would consider acceptance of the order done and he would own the horse. His nephew did not reply to this letter and was busy at auctions. The defendant, Mr Bindley, ran the auctions and the nephew advised him not to sell the horse. However, by accident he ended up selling the horse to someone else. The Court held that there was no contract for the horse between the complainant and his nephew. There had not been an acceptance of the offer; silence did not amount to acceptance and an obligation cannot be imposed by another. Any acceptance of an offer must be communicated clearly. Although the nephew had intended to sell the horse to the complainant and showed this interest, there was no contract of sale. Thus, the nephew’s failure to respond to the complainant did not amount to an acceptance of his offer.

Postal Acceptance Rule:

Adams v Lindsell, decided two centuries ago, is well-known as a source of what we now call the ‘postal acceptance rule’: the rule that a contract entered through postal correspondence is concluded when the offeree posts his letter of acceptance, rather than when the offeror receives the letter. This rule is often thought to be an exception to the more general principle that a contractual agreement is concluded when the offeree’s acceptance is communicated to the offeror.

In Adams v. Lindsell, 106 ER 250 (KB) case, on September 2, 1817, Lindsell (defendant), a dealer in wool, sent a letter to Adams (plaintiff), a manufacturer of wool, offering to sell Adams a certain amount of wool. The offer provided for acceptance by written notice sent through regular mail (“in course of post”). Based on the timing of sending the letter, Lindsell expected to receive a response from Adams by September 7th. However, Lindsell sent the letter to the wrong address, and Adams did not receive the letter until September 5th. That evening, Adams wrote an acceptance of the offer and mailed it back to Lindsell. Lindsell received Adams’s acceptance on September 9th. However, because Lindsell had not received a response from Adams as expected on September 7th, Lindsell sold the wool it had originally offered to Adams to a third party on September 8th. Adams brought suit against Lindsell for breach of contract. The trial court held that Adams’s acceptance was valid when placed by Adams in the mail, and that any delay in receiving the acceptance was caused by Lindsell’s failure to send the initial offer to the correct address. The trial court entered judgment for Adams, and Lindsell moved for a new trial.

Instant Communication:

In Entores Ltd v Miles Far East Corporation, [1955] 2 QB 327 case, the Plaintiffs (Entores) were an English Company and the Defendants (Miles Far East Co) were an American corporation with agents in various locations, including Amsterdam. An offer and acceptance in relation to a contract for Japanese cathodes was made between the companies in London and Amsterdam. Specifically:

• the Plaintiffs (in London) sent an offer by telex to the Defendants (in Amsterdam).
• the Defendants (in Amsterdam) sent an acceptance by telex to the Plaintiffs (in London)

The issue was when the contract entered into force, as this would determine whether Dutch or English law would apply to the contract. Specifically, the Court was required to determine whether the postal rule (providing that acceptance occurs when and where the letter is sent) applied to telex communications.

The court held that the contract and damages were to be decided by English law. It was stated that the postal rule did not apply for instantaneous communications. Since Telex was a form of instant messaging, the normal postal rule of acceptance would not apply and instead, acceptance would be when the message by Telex was received. Thus, the contract was created in London. This general principle on acceptance was held to apply to all forms of instantaneous communication methods. Acceptance via these forms of communication had to be clear before any contract is created.

Conclusion:

Communication means imparting or exchanging information by speaking, writing, or using some other medium.  A communication is the building block of any contract, without this there cannot be a contract. An offer and its acceptance, to be valid must be communicated to the other party. Similarly, the revocation offer should be communicated to the offeree by the offeror.

Effective communication of the offer and a clear understanding of it is important to avoid misunderstanding between all the parties. When the parties are talking face-to-face the communication takes place in real-time and on spot. Hence there is almost no confusion. For other forms of communication, the communication should be clear and unambiguous. At the same time, the timeline of communication is important.

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In contract proposal and acceptance of proposal are important ingredient. In this article, we shall discuss proposal in details.

Section 2(h) of the Indian Contract Act , 1872, defines the term ‘Contract’ as “An agreement enforceable by law is a contract.” Section 2(e) of the Act defines the term “agreement’ as “Every promise and every set of promises, forming the consideration for each other, is an agreement.”

Thus, Contract = Offer from offeror (Promisor) + Free consent from another party (Offeree / Promisee) + Legal consideration + Legal enforceability.

Thus, proposal is main ingredient of a valid contract. The term “proposal” of the Indian Contract Act is synonymous to the term “Offer” in English law. Section 2(a)of the Indian Contract Act, 1872 defines proposal as “when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal”. The person making proposal/offer is called the proposer/offeror and the person to which the proposal is made is called propose or offeree.

Illustration: If A tells B “he is interested in buying his (B’s) car for ₹ 2 lakh. Will, you sell the car to me?”. Here, with information, there is a consideration (₹ 2 lakhs) and expectation of agreement from B. Thus this is a proposal.

In Bank of India v. O. P. Swaranakar, AIR 2003 SC 858 case, the Court held that a proposal is made when one person signifies to another his willingness to do or abstain from doing anything with a view to obtaining the assent of the other to such act or abstinence.

In Balram Gupta v. Union of India, AIR 1987 SC 2354 case, the Court held that a person can withdraw or modify his offer or tender before communication of acceptance is complete as against him, that is before its acceptance is intimated to him.

Essential Elements of an Offer / A Proposal:

• There must be two parties.
• The offer must be communicated to the offeree.
• The offer must show the willingness of offeror. i.e. the terms of offer must be clear and it is made with the intention that it should be binding.
• The offer must be made with a view to obtaining the assent of the offeree.
• An offer may involve a positive act or abstinence by the offeree.
• A mere expression of willingness or expression made jokingly or desire does not constitute an offer.

Example: A tells B’ that he desires to marry by the end of 2018, it does not constitute an offer of marriage by ‘A’ to ‘B’ because there is no expectation of acceptance from B. If he further adds “will you marry me?” to the previous expression. Then it becomes an offer.

There must be minimum two parties in a contract.

A party to a contract is one who holds the obligations and receives the benefits of a legally binding agreement. When two parties enter into an agreement, there are two distinct roles each play: the promisor and the promisee. The promisor is the party that makes the promise, while the promisee is on the receiving end of the promise.

Offer must be communicated to the offeree.

The offer is completed only when it has been communicated to the offeree. Until the offer is communicated, it cannot be accepted. Thus, an offer accepted without its knowledge does not confer any legal rights on the acceptor.

In Lalman Shukla v. Gauri Datt (1913) All LJ 489 case A’s nephew has absconded from his home. He sent his servant to trace his missing
nephew. When the servant had left, A then announced that anybody who has discovered the missing boy would be given the reward of Rs.500. The servant discovered the missing boy without knowing the reward. When the servant came to know about the reward, he asked for the same from A. A refused to give the reward. The servant brought an action against A in the court of law to recover the same. But the court held that when the servant discovered the boy, he was not aware of the reward. Thus the offer was not communicated to him. Hence he is not liable to get the reward from A.

In Powell v. Lee (1908 24 TLR 606) case the plaintiff Powell applied for the post of a headmaster and his application was accepted by the School Board. Before the formal appointment, one of the Board members had informed Powell of the decision which was later rescinded by the Board. Powell sued the School for breach of contract.  The court held that the acceptance was not communicated by someone authorized by the School Board and thus there was no valid contract.

In Taylor v. Laird (25 L.J. Ex. 329) case, the plaintiff was employed as the captain of a ship which was owned by the defendant. Whilst in a foreign port during the course of the voyage, he voluntarily gave up his position as a captain and worked as an ordinary crew member during his passage back to Britain. The defendant was not made aware of this change of position. Upon his return, he sought to claim wages from the defendant for his work as a crew member during this journey. The court held that the plaintiff has not communicated his offer to work as a crew to the defendant and hence he had not entered into any contractual agreement with the defendant for the performance of his work as an ordinary crew member.  hence the plaintiff is not entitled to wages for the return journey.

The offer must be certain definite and not vague or unambiguous.

There must be no confusion about the terms used in an offer. Both offeror and offeree should understand one and the same thing from the offer. The terms of offer must be clear and it is made with the intention that it should be binding.

Example: A offered to sell to B, ‘a hundred tons of oil’. We can see that the offer is not specifying which type of oil (groundnut or sunflower or sesame, or rice bran, etc.) A want to sell to B. Thus the offer is vague, ambiguous, and uncertain. Hence it is not an offer.

There must be the intention that the offer should be binding

In Jones v Padavatton, [1968] EWCA Civ 4 case, Mrs. Violet Laglee Jones, the mother had asked her daughter, Mrs Padavatton to leave her job in the United States and come to the UK to study for the bar. The mother had further promised maintenance of 200 dollars per week. On this basis, the daughter in November 1962 came to the UK and started her education. The allowance agreed was insufficient for Mrs Padavatton. In 1964 the mother bought a house and varied the agreement by giving the daughter a part of the house to stay and a part to rent so as to cover her expenses and her maintenance. Mrs Padavatton failed to clear bar exam. In 1967 the parties had an argument and as a consequence, the mother brought an action for the possession of the house. The mother based her claim on the allegation that the agreement was not made with the intention of creating a legal relationship. The issues themselves primarily revolve around the validity of the contract and the intention to create a legally binding relationship. The Court held that there cannot be a legally valid contract if there was no intention to form one in the first place and there is a strong possibility that members of a family do not intend to get into legally binding agreements and the Court handed over possession of house to Mrs. Jones.

The offer must be capable of creating a legal relation. 

An offer in order to give rise to a contract must be intended to create and be capable of creating legal relations. A social relation (moral or matrimonial or religious or friendly) do not create legal relations.

‘A’ invited ‘B’ to dinner and ‘B’ accepted the invitation. It is a mere social invitation. And A will not be liable if he fails to provide dinner to B.

In Balfour v. Balfour (1919 2 K.B. 571) case Mr. Balfour is the Defendant and Mrs. Balfour is the Plaintiff. The couple lived in Ceylon (Now Shrilanka) and visited England on a vacation. The plaintiff remained in England for medical treatment. The defendant has agreed to send her a specific amount of money each month until she could return. The defendant failed to honour the promise. Mrs. Balfour sued for restitution of her conjugal rights and for alimony equal to the amount her husband had agreed to send. The lower court entered judgment in favor of the plaintiff and held that the defendant’s promise to send money was enforceable. The court held that Mrs. Balfour’s consent was sufficient consideration to render the contract enforceable and the defendant appealed.  The Higher Court held that the agreement between husband and wife is of social nature and cannot be enforceable by law. Hence Mr. Balfour is not liable for honouring the agreement. By this case law, all social agreements are not enforceable by the law. This judgment is considered a Landmark judgment.

In Rose & Frank Co. v. Crompton & Bros. Ltd, 1923(2) KB 261 case, when companies entered into an agreement about the exchange and purchase of toilet paper at a certain price. The agreement made between both the companies stated that “This agreement is not entered into nor is the memorandum written as a formal or legal agreement and shall not be subject to legal jurisdiction in the law courts”. The Court held the agreement void since the contract does not give any possible legal consequences.

Offer may be express and implied.

An offer which is expressed by words, written or spoken, is called an express offer. The offer which is expressed by the conduct is called an implied offer.

In Uptron Rural District Council v. Powell, 1942 1 All ER 220 case, the defendant has asked the plaintiff to do the services as he thought they will do it for free. But as the service was not entitled to a free service zone the plaintiff demanded money for their services. It was held that the defendant desired and requested Upton’s services, according to the court, and they were given. As a result, the services were deemed to be delivered based on an implied commitment to pay.

Communication of offer should be complete.

A offered to sell his old car to B for ₹1,00,000. B replied, “I am ready to pay ₹90.000”. On A’s refusal to sell at this price, B agreed to pay ₹1,00,0000. Now A is not bound to sell his car to B at ₹ 1,00,000. Initial offer to sell the car for ₹ 1,00,000 was made by A. B rejected the offer by giving a counter-offer to buy the car at ₹ 90,000. A refused this counter-offer. Now again B is giving a new offer to A to buy the car at ₹ 10,000. Thus as offeree, he has the right to accept or reject the new offer by B. Note that a counter-offer amounts to a rejection of the original offer.

In Tinn v. Hoffman & Co., (1873) 29 LT 271 case, the defendant wrote to the plaintiff offering to sell a certain quantity of iron at a certain price. On the same day without knowledge the plaintiff wrote to the defendant that he want to buy the same quantity of iron at the same price. The letters crossed in the Post. The plaintiff contended that there was a concluded contract. But the Court held that the defendant were not liable by the simultaneous offers, each made in ignorance of the other. Blackburn J. said “when contract is made between two parties, there is a promise by one in consideration of the promise made by the other, there are two assenting mind, the parties agreeing in opinion and one having promises in consideration of the promise made by the other- there is exchange of promise. But I do not think exchanging offers would , upon the principle, be at all the same thing.”

Mere Intention is not enough.

A statement of intention made during a conversation will not constitute an offer, even though acted upon by the party to whom it is made.

In Weeks v. Tybaid (1905 Noy. 11) case the defendant announced he would give £100 to a man who would marry his daughter with his consent. The plaintiff married with defendant’s daughter with the consent of the plaintiff. After the marriage, the plaintiff asked for the money but the defendant refused to pay the same. The plaintiff sued him in the court of law. The Court held this was a mere puff and in the context not to be taken with seriousness because the words were spoken to entire suitors of his daughter.

An offer must not thrust the burden of acceptance on the offeree.

A person cannot say that, if within a certain time, acceptance is not communicated, the offer would be considered as accepted.

The acceptance to offer cannot be presumed from silence.

When A makes an offer to the B, and there is no communication from B about the acceptance of the offer, then A cannot assume that the offer has been accepted by B. Failing to reply to an offer is not acceptance in most cases. This is true even if the offer says silence will be considered acceptance.

‘A’ offers to paint B’s house for $100. If B does not respond to A’s offer, there is no acceptance. If, however, A specifically state to B that, “If I do not hear anything from you by Friday, I will assume you agree to my offer. You reply,” In this case the silence become acceptance on Friday.

In Felthouse v Bindley, (1862) EWHC CP J35 case, the complainant, Paul Felthouse, had a conversation with his nephew, John Felthouse, about buying his horse. After their discussion, the uncle replied by letter stating that if he didn’t hear anymore from his nephew concerning the horse, he would consider acceptance of the order done and he would own the horse. His nephew did not reply to this letter and was busy at auctions. The defendant, Mr Bindley, ran the auctions and the nephew advised him not to sell the horse. However, by accident he ended up selling the horse to someone else. The Court held that there was no contract for the horse between the complainant and his nephew. There had not been an acceptance of the offer; silence did not amount to acceptance and an obligation cannot be imposed by another. Any acceptance of an offer must be communicated clearly. Although the nephew had intended to sell the horse to the complainant and showed this interest, there was no contract of sale. Thus, the nephew’s failure to respond to the complainant did not amount to an acceptance of his offer.

Offer must be distinguished from an invitation to offer.

When a person expresses something to another person, to invite him to make an offer, it is known as an invitation to offer. The objective of the invitation of the offer is to receive offers from people and negotiate the terms on which the contract will be created. In invitation offer, the persons responding to it are making offers.

The menu card of a restaurant is an invitation to put an offer. Price – tags attached to the goods displayed in any showroom or supermarket is also an invitation to offer. If the salesman or the cashier does not accept the price, the interested buyer cannot compel him to sell, if he wants to buy it, he must make a proposal. Other examples of invitation to offer are vacancy job advertisements, auction advertisement, and tender advertisement.

In the Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd, 1952 2 QB 795 case, the court held that in invitation to offer, it was an offer to buy, and no sale would take place until the buyers offer is accepted at the price offered.

The offeror should have the intention to obtain the consent of the offeree.

The offeror must give an offer to offeree with intention of getting consent. The statement like “Marry with me or go to hell” is not an offer.

In Tinn v. Hoffman & Co., (1873) 29 LT 271 case, the defendant wrote to the plaintiff offering to sell a certain quantity of iron at a certain price. On the same day the plaintiff wrote to the defendant that he want to buy the same quantity of iron at the same price. The letters crossed in the Post. The plaintiff contended that there was a concluded contract. But the Court held that the defendant were not liable by the simultaneous offers, each made in ignorance of the other. In these case there was intention to obtain the consent of the offeree. But actual consent or acceptance was not there.

An answer to a question is not an offer.

Conclusion:

In contract law, proposal (offer) and acceptance analysis is a basic process for determining whether two parties have achieved an agreement. A proposal or an offer is a declaration made by one person to another that they are willing to engage in a contract on specific terms without further negotiation. A contract is considered to exist when the offeree conveys his or her acceptance of an offer to the offeror. An offer’s communication is full when the person to whom the offer is made is aware of it, and an acceptance’s communication is full when the acceptance is placed in a transmission channel to the offeror. To establish a binding contract, a proposal can be revoked at any time until final acceptance is given to the proposer.

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