Fisher v Bell  QB 394: Fact Summary, Issues and Judgment of Court: A contract is basically a legal relationship that binds the parties to it and compels them to perform their various obligations in the contract. There are elements or factors that make up a contract. These elements are: offer, acceptance, consideration and an intention to enter into legal relations. The fourth element is one not usually contemplated by the parties to a contract but one which nonetheless determines the nature of the transaction.
Different questions have arisen as to when and how a contract is formed, and sometimes, with whom a contract can be formed. In the Case of Carlill v Carbolic Smoke Ball Company  EWCA Civ 1, one of the issues for determination was whether a contract can and was made with the whole world and it was held that although a contract could not be formed with the whole world, an offer could be made to the whole world.
An offer is the first element of a contract. It is the element that kick-starts the process of contracting and leads to acceptance.
There has, however, been found to be another factor that resembles the element of offer, but which, on close examination, is not. An invitation to treat can be seen as a preliminary to an offer. It is, in simple words, an invitation to the public to make an offer.
While an offer has to be a clear and unequivocal promise by a party to enter a binding transaction once that promise has been accepted by the other party, an invitation to treat is simply the initial step a party takes which may lead to an offer and a contractual relationship where the offer has been accepted.
It is the court that determines whether the element of offer is existent based on the conduct of the parties and the correspondences that pass between them; whether it is a mere invitation to treat or whether it is something else.
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In determining what an invitation to treat is, it has been held by the courts in various cases that generally, auctions, an advertisement of goods in catalogues, waiting for a bus, train or taxi, an invitation to tender and also, the display of goods in supermarkets and shops are an invitation to treat and not an offer.
Thus, in the case of a display in a shop or supermarket, an offer is only made by the customer when he picks up the item for sale or takes the item to the salesperson. In the English case of Fisher v. Bell, the requirements of offer and acceptance were considered and determined by the court. The court considered whether an offer is constituted where a display has been made in a shop.Also see: Fact summary of Combe v Combe
Facts Summary of Fisher v Bell
The defendant James Charles Bell, who was a shop owner in Bristol, displayed a flick knife with a price ticket at the window of his shop.
The display was seen by a Police Constable John Kingston who saw the displayed knife at the window of the shop. He asked if he could examine it after confronting the defendant about the nature of the knife, and took it to the superintendent of police for examination. The Constable returned later, to the defendant, to inform him that he thought it was a flick knife and he, the defendant, would be reported.
By an information preferred against the plaintiff by Chief Inspector George Fisher of the Bristol Constabulary, he was charged with the offering of a flick knife for sale, contrary to section 1(1) of the Restriction of Dangerous Weapons Act 1959, which prohibits the manufacturing, selling, hiring or offering for sale or lending of a flick knife.
The prosecutor contended that by displaying the flick knife at his window, he intended to attract buyers and as such, it was an offer for sale.
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Whether the knife displayed in a shop with a price ticket constituted an offer for sale of a dangerous weapon contrary to the provision of section 1(1) of the Restriction of Dangerous Weapons Act 1959; or whether it was a mere invitation to treat.
Judgement of the Court in Fisher v Bell
After being dismissed in a lower court, the case was then tried in the Queen’s Bench Division of the High Court of England and Wales, on the prosecutor’s appeal, where it was, again, dismissed.
The court held, albeit reluctantly, that the accused was not guilty of the crime he was charged with and that rather than the display of the knife being an offer for sale, it was an invitation to treat.
Employing the literal rule in the interpretation of the Act, it was held that there was, therefore, no breach of the Act since the Act prohibited the offering for sale, not the invitation to treat. The phrase ‘offer for sale’ could not be extended in interpretation because it was not so extended in the Act and therefore the ordinary meaning of offer in the law of contract was maintained.
According to Lord Parker C.J. to the layman, the display is clearly an offer to sell, but the parliament in enacting law must be believed to already know the general law and hence should enact statutes accordingly, and where it has so done, the enactment can only be seen as its intention. He pointed out statutes where parliament has expanded the meaning of the phrase ‘offer for sale’ like the Prices of Goods Act 1939 and the Goods and Services (Price Control) Act 1941 by including a definition section enlarging it.
In deciding the case, he considered the case of Wiles v Maddison which was relied on by the prosecutor. Lord Parker felt the case was unnecessary and unrelated as the only thing that was proved in the case was an intention to commit an offence the next day. He however considered the statement of Viscount Caldecote C.J. in that case and concluded that in the statute being considered, being the Meat (Maximum Retail Prices) Order 1940 and the provision that was being determined, the words ‘expose for sale’ was included and could therefore not support the instant case.
Though the prosecutor also relied on the case of Keaton v Horwood, the court distinguished the case from that of Fisher v Bell. In the case of Keaton v Horwood, a van contained underweight bread and was held to be contrary to the Sale of Food Order of 1921. The reason for the decision was the fact that the Order contained provisions that prohibited the exposing of underweight bread for sale and thus, the case could not be a support for the case of Fisher v Bell. Since the mere exposing for sale was prohibited in the case of Keaton v Harwood, it was not contemplated in light of an offer for sale.
Lord Parker C.J. in an obiter, opined that even if it is absurd that a flick knife cannot be manufactured, lent, hired, given or sold, but can apparently be displayed, it is not for the court to correct this omission in the law.
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