LECTURE 7 - CONTRACT, INSTANTANEOUS COMMUNICATION IN CONTRACTS - 05/10/2019 - Telex - connected to phone line, information typed in is transmitted through the phone line, when received it is typed on paper - Fax - E mail - Voicemail Why is this Important? - In today's world, contracts can be made through these means of communication. - 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. Entores v Miles Far East Corp. (1955) - Starting point of the law in this area. - Dealt with communication by telex. - The issue was where the acceptance took place. - Lord Denningff held acceptance by telex took place where it was received, and not where it was sent. (Received rule) - An extension of the postal rule was rejected. (Adams does not apply here) Entores - Analysis - Are all instantaneous communications similar? - Therefore ... should the same rules apply to all? - Are fax and emails not analogous to post? They can sit unread for some time after delivery. - Issues become more pertinent when the question is when (ie time) the communication of acceptance is deemed effective. - Lord Denning ff analogy of aeroplane distorting a contract conversation across a river. - knowledge of prevention of communication is essential - 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. - How about when communication is sent out of office hours? Or when recipient is unavailable to notice? - Was the decision in Entores based more upon what was reasonable to expect in a business context, than on a proper evaluation of the similarity/dissimilarity between modes of instantaneous communication and the post? - Some of these decisions can only be made based on practicalityff Apple Corps Ltd v Apple Computer Inc [2004] EWHC 768. o Two parties negotiating contract, one in England and one in America; issues, when was contract formed and WHERE (country)
o Courts couldn't figure out what was said (long negotiations), however a contract was acknowledged o Held: Made in England and the U.S. at the same time. - Conductive Inkjet Technology Ltd v Uni-Pixel Displays Inc [2013] EWHC 2968 - A contract resulting from complex negotiations can be held to be formed in two places at the same time. - Note that Entores dealt with the place where contract was made and not the time. - The case provides no direct authority as regards the time when a telex acceptance is effective. - The postal rule is not applicable, because the Entores principle requires the acceptance to have arrived at the offeror's address for it to be effective. - How do we figure out when ?... The Possibilities - Should