Agreement in English law

Agreement in English law

Agreement in English law is a part of English contract law which establishes the first stage in the existence of a contract. The three main elements of contractual formation are whether there is (1) offer and acceptance (agreement) (2) consideration (3) an intention to be legally bound.

One of the most famous cases on forming a contract is "Carlill v. Carbolic Smoke Ball Company", ["Carlill v. Carbolic Smoke Ball Company" [1893] 2 QB 256] decided in nineteenth-century England. A medical firm advertised that its new wonder drug, a smoke ball, would cure people's flu, and if it did not, buyers would receive £100. When sued, Carbolic argued the ad was not to be taken as a serious, legally binding offer. It was merely an invitation to treat, and a gimmick. But the court of appeal held that it would appear to a reasonable man that Carbolic had made a serious offer. People had given good "consideration" for it by going to the "distinct inconvenience" of using a faulty product. "Read the advertisement how you will, and twist it about as you will," said Lindley LJ, "here is a distinct promise expressed in language which is perfectly unmistakable".


The most important feature of a contract is that one party makes an offer for a bargain that another accepts. This can be called a 'concurrence of wills' or a 'meeting of the minds' of two or more parties. There must be evidence that the parties had each from an objective perspective engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement. [e.g. Lord Steyn, "Contract Law: Fulfilling the Reasonable Expectations of Honest Men" (1997) 113 LQR 433; c.f. § 133 BGB in Germany, where "the actual will of the contracting party, not the literal sense of words, is to be determined"] An objective perspective means that it is only necessary that somebody gives the impression of offering or accepting contractual terms in the eyes of a reasonable person, not that they actually did want to contract.

Invitations to treat

Where a product in large quantities is advertised for in a newspaper or on a poster, it is generally regarded as an offer, however if the person who is to buy the advertised product is of importance, i.e. his personality etc, when buying e.g. land, it is merely an invitation to treat. In Carbolic Smoke Ball, the major difference was that a reward was included in the advertisement which is a general exception to the rule and is then treated as an offer.

*"Fisher v. Bell" [1961] 1 QB 394
*"Pharmaceutical Society v. Boots Cash Chemists" [1953] 1 QB 401
*"Spencer v. Harding" (1870) LR 5 CP 561
*"Harvey v. Facey" [1893] AC 552

Offers generally

*"Carlill v. Carbolic Smoke Ball Co." [1893] 1 QB 256


*"Warlow v. Harrison" (1859) 1 E & E 309; 120 ER 925
*"Barry v. Davies (t/a Heathcote Ball & Co.)" [2001] 1 All ER 944
*Sale of Goods Act 1979, s. 57(2)



*"Hyde v. Wrench" (1840) 3 Bea 334
*"Stevenson v. McLean" (1880) 5 QBD 346

Acceptance by Conduct

*"Brogden v Metropolitan Ry Co" (1877) 2 App Cas 666

Prescribed Method of Acceptance

*"Manchester Diocesan Council for Education v Commercial Investments Ltd" [1969] 3 All ER 1593

Knowledge and Reliance on offer

*"Williams v. Carwardine" (1833) 5 C & P 566; 172 ER 1101
*"R v. Clarke" (1927) 40 CLR 227


*"Tinn v. Hoffman" (1873) 29 LT 271

"Battle of the forms"

*"Butler Machine Tool Co Ltd v Ex-cello Cpn (England) Ltd" [1979] 1 WLR 401

Acceptance in case of tenders

*"Harvela Investments Ltd v. Royal Trust Co of Canada" [1986] AC 207
*"Blackpool & Fylde Aero Club v. Blackpool BC" [1990] 1 WLR 1195

Communication of acceptance

Necessity for communication


*"Carlill v Carbolic Smoke Ball Co"

ilence a condition of acceptance

*"Felthouse v Bindley" (1862) 11 CBNS 869
*Consumer Protection (Distance Selling) Regulations 2000 (SI 2000/2334) Reg 24

Post or telegram

*"Henthorn v. Fraser" [1892] 2 Ch 27
*"Holwell Securities Ltd v. Hughes" [1974] 1 WLR 155


*"Entores Ltd v. Miles Far East Corporation" [1955] 2 QB 327
*"Brinkibon Ltd v. Stahag Stahl mbH" [1983] 2 AC 34
*"The Brimnes" [1975] QB 929

Revocation of Acceptance

*Hudson ‘Retraction of Letters of Acceptance’ (1966) 82 "Law Quarterly Review" 169

Termination of offer


*"Routledge v. Grant" (1828) 4 Bing 653; 130 ER 920
*"Byrne v. Van Tienhoven" (1880) 5 CPD 344
*"Dickinson v. Dodds" [1876] 2 Ch D 463
*"Errington v. Errington" [1952] 1 KB 290


Lapse of time

*"Manchester Diocesan Council for Education v. Commercial Investments Ltd"

Death of offeror

*"Bradbury v. Morgan" (1862) 1 H & C 249; 158 ER 877

Death of offeree

ee also

*English tort law
*Consideration in English law


External links

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