Self Service System is Invitation to Treat

The case that Pharmaceutical Society of Great Britain v Boots Ltd established that self-service system is an invitation to treat instead of an offer. In the case, there is a question when and where there is an offer. In other word, we should make clear which act could be regard as an offer .

In a transaction, a simple offer could be a specific word such that A said to B, “I want use 5 dollars to buy this pen.” or an order form written on the paper. But in this case, we can not find the offer easily because of the new layout of the trade that self-service system. The most simple example of the self-service system is the supermarket, you can find it almost anywhere in the city nowadays. The system is new at that time when the case happend, the meaning of the ‘self-service’ is that the goods are put on the shelves or orther places in the store and customers could choose the goods which they want to buy and pay for all what they get from the store at the cashier when leave the store. In this process, there must be an offer but it doesn’t happen through an intelligible form. So, how did it happen?

To deal with the problem, we should make clear the meaning and character of the offer and invitation of treat and find out the difference between them and use these to analyse the case we mentioned above to get a reasonable conclusion. Let’s start with the offer.

An offer is an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed, the “offeree”. [1] In my opinion, there are four import meanings we can get from this definition to explian an offer: 1) There must be an expression of willingness to contract no matter which form the expression is. 2) The certain terms. 3) The offeror have the intention of being binding by the offer made by himself and the intention to give the right of deciding whether establishing the contract or not. 4) It will be a constraint to both offeror and offeree as soon as the offeree accept the offer.

Compare with the offer, the invitation to treat is only an action of inviting others to make an offer of their own to the preson who made the invitation to treat. The acceptance of an offer means there will be a contract and both parties will be bound by the contract, but the acceptance of an invitation to treat doesn’t mean of establishing a legal relationship but making an offer. An invitation to treat may be seen as a request for expressions of interest. So these two things are completely different and the acceptance of them have different meaning and effect.

In the case Pharmaceutical Society of Great Britain v Boots Ltd, the plaintiff sue the defendant because one section of the defendant’s shelves was devoted exclusively to drugs which were in cluded in, or which contained substances which were included in, Pt I of the Poisions List referred to in s.17(1) of the Pharmacy and Posion Act 1933. They think the defendant havn’t pharmacist and the pharmacist at the cash desk can not supervise the customers. Why they have this conclusion is that they think customers ‘buy’ the drugs when they take the medicines off the shelves and placed them in the basket. On the other word, they hold that the trade happened when the coustomers have the action above and the contract is established. If this conclusion is tright, the drugs display on the shelves will be regard an offer. Is it really an offer?

To deal with this problem, we could use the summary about the offer and invitation to treat above and use the four points one by one to check whether the drugs display on the shelves is an offer or not and to find out what is an offer if the answer of the question is no.

First of all, if it is an offer, there must be an expression of willingness to contract. If the goods on the shelves are the offer, what’s the expression? I can’t find a specific expression. If there is a label of price on the goods on near the goods, this maybe a expression but has a little of eisegesis. If we accept that this kind of expression exist, the next question is what are the terms of the offer. In this kind of expression, probably there are one term could be regaed as clear that you could get this goods by the price on the label. This term could not be very certain, only when the words on the label have been written very concrete and clear. If not, I think the action that putting the goods on the shelves could not be regard as an offer. Because it is not specific enough to be an expression and hasn’t certain.

On the other hand, even if we accept that it has an expression and certain terms, it isn’t an offer, because it doesn’t meet the point three and four.

We could say that all the businessman want to sll their goods and get money, include the shopkeeper of the store which use the self-service system of course. So we could say that the goods on the shelves contain an meaning of willing to sell this goods and it is intention. But it isn’t the same meaning as they have intention to be bounding by this action. Why did the offeror have intention to be bound by the offeree? Because, if the offeree accept the offer, they can get the profit. So they are willing to be bound by the offer they made and give the right of choice whether there will be an contract or not to the offeree. In the other word, if there is a profit, there will be an intention and if not, the intention doesn’t exist in the business contract. Now, let’s think about the situation of the self-service system. When the shopkeepers have enough to sell, there is a profit so they have intention to be bound. But when the goods are not enough, is there an intention? For example, there are three pens on the shelf and four people want to buy. The fourth one go to the shopkeeper and say that he want to buy the pen by the price on label. What will happen? Of course, the fourth one’s words is an accept, so a contract has been established. Because of the shopkeeper could not give the fourth pen, he could not perfprm the contract, and he will take the liabilities for breach of contract. So when the goods are sold out, the shopkeeper has the intention of being bound and give the right of deciding whether there is an contract to the customers? The answer is of course no. But the goods on the shelves is a indivisible objective existence. So if it is an offer, it will be an offer untill the goods an labels be taken off the shelves and the offer is to everyone saw the goods. The situation in the example can’t be avoided. So how will the shopkeepers choice? They have intention or not?

For the fourth point, if we accept that the goods on the shelves is an offer, another situation will come out. It is obvious that the customers who put the goods into their basket have the willing to buy the goods and we can say that this is the acceptance of the offer. So when they put the goods in their baskets, the contract is established. What will happen? There will be a constraint to both store and customers. And something usually happen in the real life will be the action of breach of contract. For example, if a customer put a goods in his basket, and then he saw a same kind of goods which is cheeper than the one he get before, he could not put the more expensive one back to the shelf and get the cheeper one instead. Because when he put the goods in his basket, there is an chontract. He was bound by the contract, and the action that put the goods back to the shelf is the breach of the contract. It is obviously unreasonable, because the same situation happen every second everywhere in the world. We could not say this action in the example is wrong. There shouldn’t be any constraint about customers change the goods they want, so there couldn’t be a contract.

All in all, the goods on the shelves chouldn’t be regard as an offer, it is only an invitation to treat. Inviting the customers to make an offer. So anther question arise when there is an offer and how does it make happen in the shelf-service system.

In my opinion, because of the offer and the ecceptance must have the expression, so we only need to find out when there are any possibillity the the expression happen. In the whole process of shoping, the other chance of happening an expression is the customers pay for the goods at the cashier. In this process, we can regard the action that the customers give the goods to the cashier is an offer, and it means that I want to buy this goods at the price in the label. And the acceptance is given by the cashier. This hypothesis is reasonable and satisfy the meaning and character of the offer and acceptance.

So, the contract is established when the customers pay for goods at the cashier, and the the pharmacist could supervise the drugs the customers buy and has the right to refuse to allow the purchase at the cash desk. The boots should win.

To sum up, we can say that in almost all the self-service system, the goods on the shelf is an invitation to treat not an offer, and the offer is given by the customers at the cash desk when they pay foe the goods.