Contract law lecture 7 Instantaneous communication - Telex - Fax - Email - Voicemail Instantaneous communication could be argued to differ from using the post, for which the postal rule is applicable. In relation to acceptance made using instantaneous communication, it is crucial to determine when and where the acceptance becomes effective. Starting point of the law : Entores v Miles Far East Corp. [1995] 2 QB 327 Dealt with communication by telex, the issue was where the acceptance took place. Lord Denning - held acceptance by telex took place where it was received, not where it was sent. An extension of he postal rule was rejected. Analysis - Are all instantaneous communications similar? Should the same rules apply to all? Are fax and emails no analogous to post? They can sit unread for some time after delivery. Issues become more pertinent when the question is when (time) the communication of acceptance is deemed effective. Lord Denning - analogy of aeroplane distorting a contract conversation across a river. For a fax, if there are problems in delivery, it should be noticed and communicated. However, for emails, there may be no indication of problems in delivery on the part of the recipient. Possibilities - Should acceptance be effective when actually read by offeror? Should acceptance be effective when read by offeror's agent e.g. an employee? Should acceptance be effective when it is received in the machine and not yet read? Should acceptance be effective when the offeree/acceptor can reasonably expect it to have been read. The Brimnes [1975] QB 929 The communication was not an acceptance, but a notice of the withdrawal of a ship from a charter party. It was held to be effective when it was received on the charterers' telex machine 'during office hours' although it was not read until the next morning. Brinkibon Ltd v Stahag Stahl [1983] 2 AC 34 Lord Wilberforce stated as follows 'no universal rule can cover all such cases: they must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgement as to where the risks should lie'. Its about context. Mondial Shipping and Chartering BV v Astate Shipping Ltd [1995] Com LC 1011 Dealt with a fax giving notice under a contract. Held to be effective when the acceptor could reasonably have expected it to be read. Particularly important in relation to communication such as email and voicemail. The acceptor should be allowed to assume that the communication will be read at a time that could reasonably be expected in the normal course of events. Thomas & Anor v BPE Solicitors [2010] EWHC 306
An email had been sent at 6pm on a Friday evening before a bank holiday weekend. Defendant solicitors argued that it was not effective when received in the mailbox as it was sent after working hours and would only be seen on Tuesday morning. Blair J decided that the issue must be resolved with reference to