Contract A contains an implied term that only a compliant bid will be accepted.
The privilege clause allows the owner to pick a bid other than the lowest bid.
Rankin Construction Inc. v. Ontario
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ISSUES
Was a Contract “A” formed when a tender is submitted?
RATIO
A contract is formed when a tender is submitted (even if it is non-compliant).
Other—This is a desirable result: it provides greater certainty as to the rights and obligations of the bidders and the owner, and may reduce the frequency of litigation arising out of the award of tenders
Discretion clause= may wave formalities
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Communication of Offer
Williams v. Carwardine
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ISSUES
Did the Plaintiff form a contract with the Defendant even though she was not motivated by the reward?
RATIO
The motives of a person in accepting an offer have nothing to do with the person’s right to recover under the contract, but the person must have known about the offer.
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R. v. Clarke
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ISSUES
Did Clarke intend to accept the offer?
RATIO
A person cannot accept an offer that the person is not aware of.
In order for a contract to be found, the person accepting the offer must have been acting on the faith of, and in reliance upon, the offer.
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Acceptance
Livingstone v. Evans
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ISSUES
Was Evan’s offer of $1,800 still available to be accepted?
RATIO
As an exception to the general rule that a counteroffer destroys the original offer, the court may decide that the original offer is still open on the basis of the language used.
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Butler Machine Tool Co. v. Ex-Cell-O Corp.
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ISSUES
On what terms was the contract agreed?
RATIO
In a “battle of the forms” situation, the general rule is that the “last shot wins”.
Lord Denning introduced a different approach to the traditional “last shot wins” rule. Denning states that Courts should look a the documents as a whole and attempt to reconcile them. If the terms cannot be reconciled, the specific conflicting terms need to be scrapped in favour of terms that are reasonable.
Look at the documents as a whole, if items cannot be reconciled the conflicting terms need to be scarped in favor of terms that are more reasonable
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Tywood Industries Ltd. v. St. Anne-Nackawic Pulp & Paper Co. Ltd.
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ISSUES
Is Tywood bound to the conditions on the reverse side of the purchase order to resolve disputes via arbitration even though they didn’t expressly acknowledge any of those conditions?
RATIO
Where the terms are not mirror images, then attention should be drawn to the terms that they were acting under.
Still consider “Last show wins” though.
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ProCD v. Matthew Zeidenberg and Silken Mountain Web Services, Inc.
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ISSUE
Is there a contract between ProCD and the defendant, such that the defendant must obey the terms of the shrink-wrap license?
RATIO
Offeror may invite acceptance by conduct and may impose limitations on the kind of conduct that constitutes acceptance.
Shrink-wrap licenses are enforceable unless their terms are objectionable to contracts in general (as soon as customer opens wrapping)
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