General Principle:
Not everything said in the course of negotiations can amount to a firm offer.
Name:
Harvey v Facey [1893] AC 552
Facts:
Harvey (complainant) sent Facey (defendant) a telegram. It said, "Will you sell us Bumper Hall Pen? Telegraph lowest cash price". Facey replied that same day, “Lowest price for Bumper Hall Pen £900.” Harvey responded, “We agree to buy Bumper Hall Pen for the sum of nine hundred pounds asked by you. Please send us your title deeds in order that we may get early possession.” This was an attempt to try and accept this price.
Ratio:
The Privy Council held that there had been no offer. Facey’s statement was one that just concerned the price. As a result, it was something that could not be accepted.
Application:
This case distinguished between what an offer is and what an invitation to treat is. The key principle that can be applied from this case was stated by Lord Diplock (then in the Privy Court): “Intentions that are communicated have to coincide”.
Analysis:
Benjamin said he “could not accept a penny less than £37,000”. So Benjamin’s statement could be regarded as an indication of the minimum price at which he would be willing or ready to sell his car. As in Harvey v Facey, the Court may consider Benjamin’s statement as an invitation to treat rather than an offer. This argument is unlikely to work because his statement of lowest price was made in response to Angela’s offer and will be seen as a counter-offer by the courts (Hyde v. Wrench (1840) 3 Beav 334).
