Session: 2021-2022.
Project Submission: Contract I
CASE ANALYSIS OF :Haji
Mohd. Haji Jiva v. E. Spinner
Submitted To:
Mr. Utkarsh Kumar Mishra,
Assistant Professor of Law, DNLU, Jabalpur
SUBMITTED BY:
Sanchit Gupta
BALLB/080/2020
May 12, 2021
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Haji Mohd. Haji Jiva v. E. Spinner
In the above mentioned case the concept of counter offer or counter proposal is being discussed .
The facts of the case are mentioned below:
The defendant in this case made an offer in writing to the plaintiff to buy 200 bales of peppermill
drills. While responding to the proposal the plaintiff’s salesman sent a formal document mentioning
terms and conditions in the form of an indent to the defendant for signature.
However certain terms mentioned in the indent are not same as mentioned in the offer by the
defendant, therefore the defendant refused to accept these terms. Following this , the plaintiff sent
his acceptance for the original offer, but the defendant refused to assent to it. As a result the plaintiff
brought suit for breach of contract , which was dismissed by the court.
Before discussing the fact situation we must first understand few important concepts
related to offer and acceptance.
OFFER ?
As per sec 2(a) of the Indian Contract Act 1872:
“When one person signifies to another his willingness to do or to abstain from doing anything, with
a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.”
An offer is made by one party to another party as a promise to do or to abstain from doing
something .In order to constitute the promise the offer is to be accepted.Offer is the very initial
point of an agreement . It can be made either in words both spoken or written or by conduct. An
offer made by words is called an express offer and an offer made by conduct is an implied offer.
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Essentials of valid offer:
1. Terms of the offer must be certain, definite and not vague
2. The offer must be distinguished from a mere declaration of intention
3. Offer must be communicated to the person to whom it is made
4. The offer should not contain a term the non-compliance of which
would amount to acceptance
5. Special terms and conditions in the offer must also be communicated
6. The terms of the proposal must be legal
ACCEPTANCE ?
As per sec 2(b) of the Indian Contract Act 1872 :
“When the person to whom the proposal is made signifies his assent thereto, the proposal is said to
be accepted. A proposal, when accepted, becomes a promise.”
When a person to whom the offer was directed has agreed to it, the offer is said to be accepted and
gets converted into a promise. Offer can be accepted only by the party to whom it is made.
Essentials of valid Acceptance:
1. there must be a communication of the acceptance to the offeror
2. the acceptance should be absolute and unqualified
3. acceptance must be made before the revocation of the offer
4. acceptance must be must within the time specified by the offeror and if no time is specified it
must be made within a reasonable time.
5. acceptance must be made in the form prescribed by the offeror and in the absence of any
direction from the offeror must be made in a usual and reasonable manner.
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Now coming to the above mentioned case law.
In the above mentioned case the acceptance which the plaintiff sent was with certain other additions
and therefore was not the mirror image of the original offer.
As per sec 7 of the ICA 1872 :
“In order to convert a proposal into a promise the acceptance must
(1). be absolute and unqualified;
(2). be expressed in some usual and reasonable manner, unless the proposal prescribes the manner
in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and
the acceptance is not made in such manner, the proposer may, within a reasonable time after the
acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed
manner, and not otherwise; but, if he fails to do so, he accepts the acceptance.”
As discussed above ,it is of essence in a contract that there should be a proposal made expressly or
impliedly to which an unqualified and absolute assent is been given. If such an assent is not
present ,then there is no legal contract as the minds of the parties are not on the same page.
The acceptance must be a mirror image of the offer . Acceptance must be absolute and unqualified
means that the terms of the offer cannot be altered and that there cannot be any conditions. If the
offeree does not agree to the terms of the offer as it is and in a manner mirroring to what has been
proposed in the offer , the offer lapses. And if new things are mentioned in the acceptance , a new
offer is said to be proposed.
The above discussion brings us to the concept of counter offer:
When the offer is not accepted by the offeree as it has been proposed and also certain terms are
modified or added to the initial offer, the original offer is said to be lapsed and a new offer comes
into place , which is being proposed by the initial offeree as a reply to the initial offer.
This reply to the initial offer is called as counter offer.
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If the offeree rejected the original offer once a counter offer is made the offeree can no longer go
back and accept the original offer. Occurence of counter offer means that original offer was
rejected and replaced with another offer.Thus in the case under discussion the defendant was not
bound by the acceptance which was conditioned ( not unqualified) and will also not be bound when
the plaintiff went back to accepting the initial offer as the offer no longer exists.
Sir Jenkins judgement1 :
“Any departure from the terms of the offer or any qualifications vitiates the acceptance unless it is
agreed to by the person from whom the offer comes. In other words, acceptance with a variation is
no acceptance; it is simply a counter-proposal, which must be accepted by the original promisor
before a contract is made.”
Hyde v Wrench 2 is considered to be a leading case in matter of counter offers and their relation to
initial offer.
In this case the defendant offered to sell his farms to the plaintiff for 1000 pounds , but the plaintiff
declined it by offering a new price that is 950 pounds. The defendant refused to give assent to the
new offer and later the plaintiff agreed to pay 1000 pounds . In this case the court held that the
defendant is not bound by such acceptance . His initial offer was lapsed when a counter offer was
proposed.
Other related concepts and illustrations:
Partial Acceptance:
Acceptance of the offer should be in full that is , each and every thing in the contract is agreed
when the acceptance is given. An acceptor cannot take certain things out , which are of relevance or
are beneficial to him and accept them ignoring other terms.A n agreement is possible only when
their is acceptance of the whole offer that is absolute acceptance.
1 SIR JENKINS CJ in Haji Mohd Haji Jiva v E. Spinner, ILR (1900)24 Bom 510.
2 (1840) 3 Beav 334
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Also if a person who has received an offer and wants certain changes in it , it can be done only
through negotiation by proposing counter offers.If this is done the initial offer gets lapsed.
“An acceptance made subject to further confirmation or referring to future negotiations, does not
conclude a contract. Where the proposal has been conditionally accepted, namely, subject to
confirmation of higher authorities, the contract is concluded only after the condition is fulfilled.”3
Illustration 1:
Sanchit offers to sell his iPhone to Jalaj sir for Rs.20000. Jalaj sir accepts the offer but with a
condition that Sanchit also sells his iwatch along with it.This offer stands lapsed as the acceptor
that is Jalaj sir puts a condition to it and thus the acceptance is not unqualified.
Illustration 2:
Sujal offered to sell his Audi to Sanchit for Rs 3000000 in cash. Sanchit accepted the offer but he
conditioned that he will pay half the amount through google pay.Here we cannot say that a valid
contract is formed as the acceptance was not a mirror image of the offer.
3 reading material law of contract
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