"IN THE COURT OF APPEAL (CIVIL DIVISION)BETWEEN:Appellant -v- Respondent________________________________SKELETON ARGUMENT ON BEHALF OF THE APPELLANT1. David Stringer (Respondent), designed a line of cosmetics and placed an advertisementon Thursday. The advertisement stated that only for a limited period the Respondentwould sell the products for an initial promotional price of £15,000. Anisa Shah(Appellant) who placed an order for pack of products and the mail reached theRespondent by 5:03 p.m. Respondent realizing the promotional price was inaccurate,placed a notice regarding non-availability of the promotional deal on 6th October at 8.00a.m. Appellant did not read the notice till 10:30 p.m. and Respondent did not readAppellant’s e-mail until 11.00am. Respondent refused to sell the products at because thespecial promotional price was no longer available.The Judge found in favour of Respondent, on the grounds that the Respondent’sadvertisement on a website was not an offer but an invitation to treat and even if theadvertisement was an offer it was withdrawn before acceptance.This is an appeal against the decision of the Judge upholding the claim of the Respondent,Mr Stringer, against the Appellant, Ms Shah. Ms Shah asks the court to allow the appealon the basis that the learned judge erred in. Page 1 First Ground of Appeal2. Withdrawal of an offer also known as revocation of offer, establishes certain principles1 such as :? An offer may be withdrawn any time before receiving acceptance from the partyto whom it is addressed, and? The offer or has the right to withdraw an offer irrespective of the fact that the timelimit for receiving acceptance has not expired.Additional to these principles which have been discussed in latter part of the argument,we move further in noting rules that apply with regards to withdrawal of an offer:? Withdrawal or revocation of offer should be communicated,? The offer can be revoked by the offer or any reliable source, and ? An offer once made through a unilateral contract cannot be withdrawn once theperformance has been commenced by the offered. Among the above stated rules, our case focuses mainly around that communication of thewithdrawal.2 ? It is also submitted that the principle outlined in Payne v Cave to the current casebecause:? The defendant in the applied case withdrew his bid before the hammer fell,? The bid was an offer which can be withdrawn any time before the auctioneermakes acceptance by dropping the hammer and that the auctioneer’s request for3 bids was not an offer to be accepted by the highest bidder ,1“Part1, The Formation of a Contract”;http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapter/Elliott_contract_C01.pdf; accessed on 09 December,20162(1789) 3 TR 1483Brandly Mike, “Auctioneer BlogAll about auctions and auctioneers, with observations on auction law and customary practice,” (2010);https://mikebrandlyauctioneer.wordpress.com/2010/12/29/old-english-auction-case-law-2/ ; Page 2 ? The principle applied in this case states that the party making the offer can4 withdraw the offer before anytime it is being accepted , and? The contract in issue cannot be related to the principle discussed in Payne casebecause the Respondent mailed her acceptance before the withdrawal orrevocation of the offer.3. Furthermore, it is submitted that the opinion held in the Brinkibon Ltd v Stahag Stahl5 GmbH has been wrongly interpreted with regards to the current case, because:? The issue in the Brinkibon case was mainly concerning jurisdiction of the law toapply and the mode of communicating the acceptance,? This principle cannot be applied here as the issue in the current case is concerningexistence of contract on e-mailing acceptance before withdrawal or revocation ofthe offer,6 ? The principle in the Brinkibon case is an exception for the postal acceptance rule ,and also it is observed that when an acceptance is sent over through telex whichdoes not abided by the postal acceptance rule, it is treated as an instantaneouscommunication and results in formation of the contract, and ? Thus, the contract in issue cannot be related to the principle discussed inBrinkibon case, the mode of communication in our case is made throughelectronic medium which abides by the postal acceptance rule.4. It is accordingly submitted that the principles of both Payne and Brinkinbon cases cannotbe applied to the issue in our case because neither of the cases discuss aboutcommunication of acceptance prior to withdrawal or revocation of offer and the mode ofcommunicating the acceptance. Even though, Brinkinbon case held that a contract is4Ibid note 15[1983] 2 AC 346Duhaime Lloyd, “Part 4: Offer and Acceptance, Duhaime’s Contract Law,” (2012);http://www.duhaime.org/LegalResources/Contracts/LawArticle-89/Part-4-Offer-Acceptance.aspx;Page 3 formed when the acceptance, mailed through telex reaches the place of business and notto the person it is addressed, we cannot apply this approach as the communication modeused in our case is through e-mail which abide by the principle of postal acceptance rule.Second Ground of Appeal5. Considering the advertisement in our case as an offer, it is submitted that a bindingcontract exists between the parties because the offer of the advertisement was revokedafter the receiving acceptance from Appellant. This rule is further discussed with a caselaw below.6. It is submitted that a contract did exist in our case based on the postal acceptance rule7 principle as applied in the Byrne & Co v Leon Van Tien Hoven & Co it is essential tocommunicate withdrawal or revocation of offer. Any acceptance posted before thewithdrawal or revocation of offer will result in a binding contract, becausecommunication of revocation of the offer is very essential.Analysing the facts of the case and applying the above stated rule of communicating the8 withdrawal of the offer it can be observed that :? Revocation that is not communicated is not considered a revocation at all,communication of revocation is very essential. On applying this rule to ourcase it can be analysed that even though Respondent communicated thewithdrawal of advertisement of the notice it was made after Appellant mailedthe acceptance. The date and time of mail sent by Appellant and the notice ofrevocation made by Respondent are very crucial in concluding our case, and? An offer can be revoked anytime before it is accepted and it is immaterial onthe grounds whether the offer was open for all or addressed to a single person,7[1880] 5 CPD 3448Ibid note 5 Page 4 but a withdrawal of an offer is not effective until it is communicated.Emphasising on this rule, it can be analyzed that even though Respondent inour case had the right to revoke offer anytime according to his wish. But, thisrevocation is effective only before receiving acceptance.7. Additionally, it is implied that a contract did exist between the parties as explained in9 Household Fire and Carriage Accident Insurance Company (Limited) v Grant where theJudge stated that a valid contract did exist as per the provisions under the postalacceptance rule. According to the postal acceptance rule once an acceptance is mailedthrough post the contract becomes effective. In our scenario Respondent mailedacceptance to Appellant through mail before the Appellant revoked the offer and thus, asper the postal acceptance rules the Appellant is bound by the contract to sell products to10 Respondent .11 8. Furthermore, as guided by Lord Denning in Entroes case, an offeror is bound bycontract only when non-receipt of the acceptance communicated by a virtuallyinstantaneous means is due to offeror’s fault. The offeror is bound by the principle of12 estoppels, such that he cannot deny the occurrence of communication . Even though, theCourts may restrict the scope of postal acceptance rules regarding the communication ofacceptance through e-mail, an acceptance sent through e-mail becomes effective once it iscommunicated to the offeror. 9. Appellant in our case did communicate the acceptance to Respondent through e-mail andthe mail had reached Respondent’s inbox prior to the revocation of the offer. It was theerror on Respondent for not checking his e-mail before revoking the offer.9(1878-79) LR 4 Ex D 21610“1879 in Law: Household Fire Insurance Company V Grant,” LLC Books, (2010)11Entores v Miles Far East Corporation Pty Ltd [1955] 2 QB 327 at 33312O’Shea Kathryn and Skeahan Kylie, “Acceptance of Offers by E-Mail - How Far Should the Postal Acceptance Rule Extend?”;https://lr.law.qut.edu.au/article/viewFile/446/433;Page 5 10. As mode of communication is also one of the essential elements in the binding contractand if the offer specifically, states the mode of communicating the acceptance then inaddition to the time of acceptance received even the mode of communication wouldimpact in deciding whether the contract was valid or not. In our case it can be observedthat Respondent in his advertisement clearly mentioned that the order for the herbal packshould be either made through telephone or through e-mail. Even though, an acceptancemailed through e-mail is not binding until it is communicated, it can be observed that it isalso the duty of Respondent to check his e-mails before revoking the offer.11. Thus, it can be noted that Appellant has timely communicated her acceptance and alsothrough the mode specified in the advertisement.12. Accordingly, it is submitted that there exist a contract and Respondent is liable to offergoods to the Appellant at the price prior to the revocation of the offer.Conclusion13. For the reasons set out above, it is submitted that the court should allow the appeal as Ms.Shah has proved that there exist a binding contract because she communicated heracceptance through mailing a request for order prior to the withdrawal or revocation ofthe advertisement, that was made a day after receiving mail for an order from theAppellant. Therefore, request to grant permission for appeal. Page 6 Bibliography:? “Part1, The Formation of a Contract”;http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapte r/Elliott_contract_C01.pdf; accessed on 09 December, 2016? Mike Brandly, “Auctioneer BlogAll about auctions and auctioneers, withobservations on auction law and customary practice,” (2010);https://mikebrandlyauctioneer.wordpress.com/2010/12/29/old-english-auction-case- law-2/ ; accessed on 09 December, 2016? Lloyd Duhaime, “Part 4: Offer and Acceptance, Duhaime’s Contract Law,” (2012);http://www.duhaime.org/LegalResources/Contracts/LawArticle-89/Part-4-Offer- Acceptance.aspx; accessed on 10 December, 2016? “1879 in Law: Household Fire Insurance Company V Grant,” LLC Books, (2010);accessed on December 10, 2016? Kathryn O’Shea and Kylie Skeahan, “Acceptance of Offers by E-Mail - How FarShould the Postal Acceptance Rule Extend?”;https://lr.law.qut.edu.au/article/viewFile/446/433; accessed on December 10, 2016? Partridge v Crittenden[1968] 1 WLR 1204? Brinkibon Ltd v Stahag Stahl GmbH [1983] 2 AC 34? Byrne & Co v Leon Van Tien Hoven & Co [1880] 5 CPD 344? Household Fire and Carriage Accident Insurance Company (Limited) v Grant (1878- 79) LR 4 Ex D 216? Entores v Miles Far East Corporation Pty Ltd [1955] 2 QB 327 at 333? Payne v Cave (1789) 3 TR 148 Page 7 "