Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

تمرين 19

FACTS On April 6, 1956, Great Minneapolis Surplus Store published an advertisement in a Minneapolis newspaper reporting that ''Saturday, 9:00 A.M. sharp; 3 brand new fur coats worth up to $100; first come, first served, $1 each.'' Lefkowitz was the first to arrive at the store, but the store refused to sell him the fur coats because the ''house rule'' was that the offers were intended for women only and sales would not be made to men. The following week, Great Minneapolis published a similar advertisement for the sale of two mink scarves and a black lapin stole. Again Lefkowitz was the first to arrive at the store on Saturday morning, and once again the store refused to sell to him, this time because Lefkowitz knew of the house rule. This appeal was from a judgment awarding the plaintiff the sum of $138.50 as damages for breach of contract.
DECISION Judgment for Lefkowitz affirmed.
OPINION Murphy, J. The defendant *** relies upon authorities which hold that, where an advertiser publishes in a newspaper that he has a certain quantity or quality of goods which he wants to dispose of at certain prices and on certain terms, such advertisements are not offers which become contracts as soon as any person to whose notice they may come signifies his acceptance by notifying the other that he will take a certain quantity of them. Such advertisements have been construed as an invitation for an offer of sale on the terms stated, which offer, when received, may be accepted or rejected and which, therefore does not become a contract of sale until accepted by the seller; and until a contract has been so made, the seller may modify or revoke such prices or terms. [Citations.] ***
On the facts before us we are concerned with whether the advertisement constituted an offer.
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The test of whether a binding obligation may originate in advertisements addressed to the general public is ''whether the facts show that some performance was promised in positive terms in return for something requested.''
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Whether in any individual instance a newspaper advertisement is an offer rather than an invitation to make an offer depends on the legal intention of the parties and the surrounding circumstances. [Citations.] We are of the view on the facts before us that the offer by the defendant of the sale *** was clear, definite, and explicit, and left nothing open for negotiation. The plaintiff having successfully managed to be the first one to appear at the seller's place of business to be served, as requested by the advertisement, and having offered the stated purchase price of the article, he was entitled to performance on the part of the defendant. We think the trial court was correct in holding that there was in the conduct of the parties a sufficient mutuality of obligation to constitute a contract of sale.
INTERPRETATION Although advertisements generally do not constitute offers, under some circumstances they do.
ETHICAL QUESTION Should Lefkowitz be entitled to damages? Why?
CRITICAL THINKING QUESTION Should an advertisement generally be construed as not constituting an offer? Explain.