''Fisher v Bell''

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1 QB 394 is an English contract law case concerning the requirements of

offer and acceptance Offer and acceptance are generally recognised as essential requirements for the formation of a contract, and analysis of their operation is a traditional approach in contract law. The offer and acceptance formula, developed in the 19th century, id ...

in the formation of a

contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...

. The case established that, where goods are displayed in a shop, such display is treated as an

invitation to treat An invitation to treat (or invitation to bargain in the United States) is a concept within contract law which comes from the Latin phrase ''invitatio ad offerendum'', meaning "inviting an offer". According to Professor Andrew Burrows, an invitat ...

by the seller, and not an offer. The offer is instead made when the customer presents the item to the cashier together with payment. Acceptance occurs at the point the cashier takes payment.

Facts

The defendant displayed a

flick knife A switchblade (aka switch knife, automatic knife, pushbutton knife, ejector knife, flick knife, Stiletto, flick blade, or spring knife (Sprenger,Benson, Ragnar (1989). ''Switchblade: The Ace of Blades''. Paladin Press. pp. 1–14. . The sw ...

in the window of his shop next to a ticket bearing the words Ejector knife – 4s, (i.e. four

shilling The shilling is a historical coin, and the name of a unit of modern currencies formerly used in the United Kingdom, Australia, New Zealand, other British Commonwealth countries and Ireland, where they were generally equivalent to 12 pence o ...

s). Under section 1 of the Restriction of Offensive Weapons Act 1959 (which was expanded in 1961, after this case finished, to deal with the gap in the law): In late 1959, the claimant, a chief inspector of police, brought forward information against the defendant alleging he contravened section 1(1) by offering the flick knife for sale.

Judgement

Bristol Justices

At first instance, the Prosecutor submitted that the Defendant has displayed the knife and ticket in the window with the objective of attracting a buyer, and that this constituted an offer of sale sufficient to create a criminal liability under section 1(1) of the Act. Mr Obby Simakampa submitted that this was not sufficient to constitute an offer. The judges at

first instance A trial court or court of first instance is a court having original jurisdiction, in which trials take place. Appeals from the decisions of trial courts are usually made by higher courts with the power of appellate review (appellate courts). Mos ...

found that displaying the knife was merely an invitation to treat, not an offer, and thus no liability arose. The Prosecutor appealed the judges' decision.

Divisional Court

Lord Parker CJ in the

Divisional Court A divisional court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges.Section 66, Senior Courts Act 1981. Matters heard by a divisional court include some criminal cases in the High Court ...

held there was no offence because there was no "offer for sale". Although the display of a knife in a window might at first appear to "lay people" to be an offer inviting people to buy it, and that it would be "nonsense to say that twas not offering it for sale", whether an item is offered for the purpose of the

statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...

in question must be construed in the context of the general law of the country. He stated that the general law of the country clearly established that merely displaying an item constituted an invitation to treat. He also read the statute on an exclusive construction (''

inclusio unius est exclusio alterius Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward mean ...

''), noting that other

legislation Legislation is the process or result of enrolled bill, enrolling, enactment of a bill, enacting, or promulgation, promulgating laws by a legislature, parliament, or analogous Government, governing body. Before an item of legislation becomes law i ...

prohibiting the sale of weapons referred to "offering ''or exposing for sale''" (emphasis added). The lack of the words ''exposing for sale'' in the Restriction of Offensive Weapons Act 1959 suggested that only a true offer would be prohibited by the Act. The court dismissed the appeal. Goods displayed in a shop are merely an invitation to treat or invitation to trade. Ashworth J and Elwes J agreed.

Significance

The 1959 Act was almost immediately amended by the Restriction of Offensive Weapons Act 1961 section 1 to add (to the offence) ''or exposes or has in his possession for the purpose of sale or hire'', which remains the law. A similar shopkeeper would today be successfully prosecuted. The principles of offer and acceptance in the case remain good law. Draft statute writers, prohibiting certain sales, made almost identical drafting mistakes in '' Partridge v Crittenden'' and ''British Car Auctions v Wright''.

References