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Mooting (LW2665)

Memorandum for Appellant

On behalf of Against
Mr Massimo Strada, Ms Shella Lam,
Appellant Respondent

Counsels on behalf of appellant:​ Lam Tin Yan (SID: 55219928), Cheng Hoi Ki
(SID:55225148)
Words count of argument: ​(2000)
Date of submission: ​1st November, 2018
Table of contents
Table of abbreviations 1
Index of legal authorities 1
Index of cases 2
Legal sources and materia​​l 3

Statement of Facts 4
Introduction 5
Argument 6-
1. Appellant’s advertisment was offer instead of an invitation to treat 6

2. The Respondent’s email is an acceptance 6-7


a. The requirement of an offer is fulfilled
i. the general principle of offer/ acceptance/ counter offer
ii. the offer is made after invitation to treat of the Advertisement
b. The email constitutes a valid acceptance at the time it was sent
i. the general principle of arrival rule\
ii. the postal rule
3. Appellant did not enter agreement with Respondant 7-8
a. The written term on the advertisement can be incorporated into non-written
contract between respondent and appellant
i. general principles of course of dealing
ii. exception of priniciple of trade custom
b. Statement made by appellant is a mere puff
i. general principle of offer
c. Respondent’s intention to accept is not a valid acceptance
i. the general principles of acceptance
d. Even if there is a legal agreement, the contract should be voidable because of
unilateral mistake.
i. principle of unilateral mistake
ii. principle and consequences of constructive knowledge in unilateral
mistake
e. Appellant has the right to reject $600k Cheque according to the first contract.
4. Appellant is entitled to damages. 8-
Procedural request 10
Prayers for relief 10
1. Whether the Appellant’s advertisement was an invitation to treat or
an offer.

(i) Whether the advertisement was an invitation to treat or an offer


The general rule is that advertisement is an invitation to treat instead of an offer.(​Partridge v
Crittenden​)However, when the advertisement request for the ​performance of an act​ as
acceptance, it is an ​unilateral offer ​instead of an invitation to treat(Carlill v Carbolic
Smokeball Co)

Analysis: In the case of Carlill v Carbolic Smokeball Co,the plaintiff’s act of ​purchasing
some smoke balls and using them according to the directions and catching flu constitutes an
acceptance by performance stated in the unilateral offer.Applying it into the present situation,
the ​advertisement request for performance by sending a signed notice​.

Conclusion: It is an unilateral offer.

(ii) Whether the offer is valid


An offer is an expression of willingness to contract (1)​on specified terms​, made with the
(2)​intention that it is to become binding (3) as soon as it is accepted by the offeree​.

Analysis: In this case the appellant included specified terms such as the ​brand of the mobile
phone(model Mansung Majesty Note 5), quantity of 100 mobile phones and the price of
HK$700,000​. The exact terms in the advertisement is very clear.Moreover, the ​wording of
“accepting to purchase” ​in the advertisement shows the intention to be legally bound by
acceptance.Also, the advertisment clearly ​provides the method of acceptance by stating the
address and email ​(Mobile-tech, 3/F Hart House, 12 Hart Avenue, Tsim ShaTsui. Email:
sales-and-enquiry@mobile-tech.com.hk) so that the contract can become binding once the
notice was sent to the address or email stated.People can infer that the appellant has a serious
intention to enter a binding contract.

Conclusion: the offer is valid

Case authority: (Partridge v Crittenden); (Carlill v Carbolic Smokeball Co)

2. Whether the Respondent’s email was an acceptance,an offer, a


counteroffer or none of the above.

(i) Whether there is acceptance


The general rule is that if the offeror explicitly notifies his expectation of method of
acceptance by words, the offeree must follow what the offeror expects. (Manchester Diocesan
Council v Commercial and General Investment)

Application: Since respondent sent the signed notice to the relevant email
address(sales-and-enquiry@mobile-tech.com.hk). ​The acceptance is in accordance with the
method stated in the advertisement, and is therefore a valid acceptance.

(ii) Whether the accpetance is valid

The general rule is that acceptance should be communicated to the offeror and should be clear
and unequivocal. (Entores Ltd v Miles Far East Corporation); The exception is that when the
acceptance is communicated by post, the postal rule will apply and acceptance is conformed
once it is sent.(Household Fire and Carriage Accident Insurance Co Ltd v Grant)As there are
many delays and failure situation in sending and receiving message through emails, it is not a
method of instantaneous communication. Postal rules applies to email.
Therefore, ​the email of acceptance sent by the respondent is effective the moment it is sent,
regardless of the actual time the applicant had seen the email​. Since the acceptance is legally
valid, the contract is concluded at the time the acceptance is valid.
Conclusion: there is valid contract between appellant and respondent about the transaction of
100 mobile phones for the price of HK$700,000

3. Whether the Appellant and the Respondent entered into a legal


agreement during or after their dinner meeting.

Whether the written terms such as the transaction details can be incorporated into the oral
contract between appellant and respondent?
The general rule stated that terms may be incorporated on the basis of the parties’ previous
course of dealings with each other. [Henry Kendall & Sons v William Lillico & Sons Ltd,
1969]; however, if the party rely on the terms of past dealings as being incorporated into a
present contract will have the burden of proving consistent past dealings on those terms
[McCutcheon v David MacBrayne Ltd, 1964]; if there is no previous dealing, where the
parties are in the same business or trade standard terms which are familiar to all those who
are within that business or trade may be incorporated into a contract. [British Crane Hire
Corp Ltd v Ipswich Plant Hire Ltd, 1975]
In this case, appellant and respondent have performed transactions in the past, and they sold
batteries and accessories by phone. There is no need for a written contract for the small value
transaction. however, in this case, the transaction involve a bigger number which is ($700K)
and sales of 100 mobile phone. there is no previous dealing on such big transaction. Yet, both
parties are in mobile-tech industry for long time (Appellant is the CEO of Mobile-tech, which
was established in 2003; Respondent is the owner of Fortes, the electronic retail chain store in
Hong Kong) , they are familiar to this business so the trade can be incorporated into a
contract because of the trade custom.
Conclusion: the unwritten contract can incorporated the written terms on the email into
contract.

Whether “was even willing to sell her mobile phone for $600K” a mere puff or a valid offer?
the general rule stated that a puff is a statement made by one of the parties in an attempt to
induce the other to enter into an agreement which goes no further than ordinary
commendation. there has no legal consequences. [Weeks v Tybald, 1605]; [Heilbut, Symons
& Co v Buckleton, 1913]
In this case, this statement made by appellant implied no intention to enter a binding
relationship with respondent. It is merely an expression of his frustration on problem of
selling out his 100 mobile phone. Besides, the circumstance and setting of the dinner is
friends’ gathering instead of business meeting. Appellant vented his grievances to respondent
as a friend. There is not seriously meant it shows that this statement is only a puff instead of
an offer.
the conclusion is the statement is a puff for there is no intention to have legal consequence.

Whether the statement of “let me know about the mobile phone....I will definitely buy them!”
constitute an acceptance which create a contract.
The general rule of a valid acceptance must be unequivocal, assenting to all the terms of the
offer and properly communicated to the offeror. A mere acknowledgement of an offer or a
reply stating that there is an intention to accept [OTM Ltd v Hydranautics, 1981], or a request
for an invoice [Michael Gerson (Leasing ) Ltd v Wilkinson, 2001] will not be sufficient.
In this case, it is stated that there is no further discussion on the phones apart from the puff
statement and response from respondent. Her reply stating the intention to accept yet there is
no unequivocal acceptance because the general information and details of transaction has not
been discussed. Her expressed intention to accept the offer is not sufficient to constitute an
valid acceptance.
Therefore, there is no valid acceptance to creae a contract.

If there is contract between appellant and respondent, should the contract be voidable and can
be set aside in equity.

Whether the respondent make use a unilateral mistake to gain benefit from the contract?
The general rule is that mistake as to terms occurs where one party is under a mistake as to
the terms of the contract, and that mistakes is known to the other party. A party is aware of
the other party’s mistake cannot enforce his version of the contract against that mistaken
party. [Smith v Hughes, 1870-71]; it is crucial that respondent must have known of the
mistake. [Chwee Kin Keong v Digilandmall.com Pte Ltd,2005] constrcutive knowledge is
sufficient.
In this case, Respondent took an active step to conceal the fact that she has sent an email
accepting the offer of $700k for 100 mobile phone. During their conversation, she ought to
know that appellant has no knowledge on the acceptance email. As a party who is aware of
the error made by the other party cannot claim that there is consensus ad idem. It is stated
that respondent did not mention she had already replied to appellant’s advertisement which is
an unilateral offer. At that time, the contract was formed between the parties but is unknown
to appellant. Respondent made use of the ignorance of appellant to reduce the price of the
subject matter and to create a new contract with the subject matter.
In conclusion, unilateral mistake made by appellant with the knowledge of respondent
should make the contract voidable.

Whether appellant has the right to reject the cheque ($600k)? would it constitute a breach of
contract?

4. Whether damages were correctly granted. Whether the Appellant is


entitled to damages​​.