The offer and acceptance in contract law : a comparative legal analysis in the light of modern developments

Abstract

"It is the nature of men to be bound by the benefits they confer as much as by those they receive." Thus, it results that Contract, as "an agreement or an accord between two or more persons by which an obligation is created, regulated, or dissolved,''2 is central to man's very nature. An agreement is generally not reached instantaneously but is the result of the process of negotiation. Bearing this in mind, this dissertation analyses the stages of negotiation and conclusion of a contract. It deals with the legal negotia of the 'offer' and the 'acceptance' from the moment they arise as distinct and separate acts of the. will of the parties to the moment in which they are fused together to form the contract. Following a brief historical overview of the various sources of our contract law in the first chapter, Chapter 2 proceeds to deal with the first of the two constitutive negotia of a contract - the Offer. This chapter outlines the requisites of an offer, distinguishing it from a mere invitation to treat. Particular emphasis is given to the notion of offers to the public and its application under our law, as compared to foreign law, shedding light on the electronic commerce scenario. Chapter 3 deals with the requisites of the Acceptance as that element which, upon meeting the offer, concludes the contract. Here, the various theories of the moment of conclusion of contracts are introduced with specific attention being given to the provisions of the Electronic Commerce Act, as compared to those of the Electronic Commerce Directive. Chapter 4 then outlines the principle of the freedom to withdraw from negotiations and the various forms ofliability and restraints placed on the parties' exercise of this freedom. Finally, Chapter 5 deals with the 'ad hoe'regulation of the 'Offer and Acceptance' in Government Contracts, better known as Public Procurement. Here the various shortcomings of our law, in comparison to the standards laid down by the European Community and the World Trade Organisation, as a result of which tenderers competing for the award of a Government contract under our system often incur unfair prejudice, are evidenced. The author concludes by opining that, in order to live up to the expectations of today, wherein contracting via means of distance communication has become common-place, our law of contract ought to be reformed in order to bring .about the desired levels of legal certainty.