But the accepted offer by post instead of the agreed wagon driver. The wagon driver arrived before the letter of acceptance reached E. It was held that there was no contract. In Malik vs. Constance however, there was no particular mode agreed upon of accepting the offer and therefore, Malik had the liberty of to use any. The question however is, if by leaving his acceptance on Constance's' telephone answering machine there was a valid acceptance. 1
(b) For acceptance to be effective, it must be communicated to the offeror. However, there are exceptions when an acceptance would be effective through no communication has taken place. Some of these exceptions include when acceptance is by post. It contrasts with the general rule that a contract is complete only when acceptance is actually communicated to the offeror.
However, communication by telephone is not captured in this exception to the rule of communication. The law says that where there is such a communication between the parties i.e. where the means of communication is telephone, telex etc, and the contract is only complete when acceptance is received by the offeror. This was held in the case of Entores Ltd Vs. Mles Far East Corporation. In this case, the plaintiffs in London made an offer by telex to the defendants through their agent in Holland. Acceptance of the offer was communicated and received by their plaintiff on their telex machine in London. The court had to determine whether the contract was made in London or in Holland. It was held that since communication by telex was instantaneous, the contract was concluded in London where the acceptance was received by the offeror. 2
In the case of Malik vs. Constance, Malik cannot claim that he had accepted Constance's offer to buy the suit unless contrast admits that he opened and listened to his phones answering machine the message Malik had left.
Malik's action against Constance to recover the damage caused by vandals will not succeed because the damage would not be foreseeable by Constance by the time the contract was being made. On of the rules of consideration is that it must be real. The fact is that the suit had not been delivered to Constance and it would be illegal for Malik to recover money from him for nothing sold.
Consequently, Constance cannot successfully sue Malik for breach of contract. Under the law of contract two parties are under an obligation to fulfil their requirements under the contract and also to be bound by its terms and regulations. In this case, the only term condition that was to be maintained in the contract was that of further modifications to the suit long of furniture. And Malik made the modifications as agreed. In fact Constance, knowing very well that he was away on business could've taken reasonable steps to check for any information in this telephone. Malik could not have foreseen the theft that occurred in this premises. Therefore Constance action will also fail. 3
Malik Vs Bedenhams
Under the sale of goods act, there is an implied condition that the goods must correspond with the description. This was held in the case of Varley vs. Whip. In this case, the