Name: Ko Wing Yu, Calvin

SID: 54430299
Tutorial Group: T07

For the first issue is concerned whether there is a contract formed between Ada and Kelvin.
The meaning of legal is the actions that taken in different period of time will be considered
together with the legal precedents, in order to determine whether it is an offer or only an
invitation of treat and whether an acceptance of offer is established.

On Friday 17 January 2020, Ada advertised for the sales of KF94 mask at her shop. In this
case, we should first consider whether it is an offer or an invitation to treat. An offer in
general, is a definite promise or proposal to be bound on specific terms and it has to be
definite, no vague. It must be addressed to a particular person, a group or to the public at
large. Whereas, an invitation to treat is where offer is an expression or statement to invite
offers for consideration, in which inviting others to begin negotiation. However, normal
advert without sufficient details will generally deemed to be invitation to treat. According to
Partridge v Crittenden1, the statement ‘Bramblefinch cocks andhens, 25s.’ in the defendant’s
advertisement was held to be an invitation to treat but no an offer. Similarly, without any
sufficient details in the mask advertisement, it can only be held as an invitation to treat.

For Kevin case, on Friday 17 January 2020 afternoon, Kevin reached out Ada and inquired
about the details about the mask. Kevin was told that these masks are sold as a pack of 20 for
$330 a pack. At this point, there was no acceptance being formed after Kevin received this
information, as he thinks the masks are too expensive. In order to have a more favorable deal,
Kevin left a message on Ada’s phone and made a counter-offer of buying 10 packs of mask of
$3000 instead of $3300 one day after. A counter-offer indicated that the original offer is
ceased to exist and will not take place. In this case, the offer made by Ada originally has been
destroyed by the new offer. However, Ada did not aware of the message, since she is
travelling to the Mainland during the Lunar New Year. In line of this, we have to consider
whether an acceptance has taken place. acceptance is expressed as an unequivocal and
unconditional agreement to the terms of the offer. Acceptance is expressed as an unequivocal
and unconditional agreement to the terms of the offer. However, acceptance is not effective
until it is communicated by the offeree (i.e. Kevin) to the offeror (i.e. Ada). According to
Entores v. Miles Far East Corporation 2, the postal rule cannot be applied to the instantaneous
communication. However, voicemail is deemed as instantaneous communication, such that
the voice message is not communicated before Ada actually check her voicemail and no
acceptance is formed.

In conclusion, there is no contract made between Ada and Kevin, as the counter-offer made
by Kevin did not well communicated to Ada at the first place. Both of time are no bind with
the contract.
1
[1968] 1 WLR 1204
2
[1955] 2 All ER 493
The second issue in this case is to determine whether a misrepresentation is incurred between
the contract of Ada and Eric. Misrepresentation is a statement of fact made by one party to
the other that is fault and it induced that other party to enter into the contract.

Firstly, we have to further examine there is a representation of fact that must relate to existing
facts or past events, that is neither law or opinion. Therefore, the delivery date that are told by
Ada can been considered as a representation of fact. Secondly, the information given by Ada
is false. As she promised the mask will be delivered to Eric at the early of February, turns out
she fails to keep her promise. After Ada acknowledge the delay in delivery from the supplier
she immediately update the situation to Eric. With the case v O’Flanagan3, during the
negotiation, the defendants fails to inform the plaintiff that the practice are not took in around
$2000 per year, thus the defendants is liable for false misrepresentation. Referring to the this
case, Ada is liable for giving false representation, as there is a positive duty on her to ensure
the relevant party (i.e Eric) there is a change in circumstance before contract is formed. The
third part is related to a material fact that affects a reasonable person’s judgment on whether
to enter into the contract. In the case of Green Park Properties Ltd v Dorku 4, a property are
shown to the plaintiff and given the impression that the yard is attached together with the
property, as a result that would affect the overall size and the value of the property. By
applying this principle, the delivery date is considered as one of the material fact that affects
Eric judgement in purchasing the mask. Lastly, the statement made by Ada induced Eric to
enter into the contract. Unlike the case of Attwood v. Small and Lee Wei Man Karen v. Hong
Kong Forex Investment Ltd5, the inducement was done by Tom and not a third party. With all
of the above, all the elements of forming a misrepresentation is fulfilled.

Moreover, it is also necessary to identify the three type of misrepresentation: 1) Fraudulent

In conclusion, since the exclusion clause had not been incorporate, Ada should be held liable
and Eric rescind the contract. (word count 995)

3
[1936] Ch 575
4
[2001] 4 HKCFAR 448, CFA
5
[1838] 6 CI & F 232; 7 ER 684
6
[1889] UKHL 1