ABSTRACT
In the last chapter we looked at the various things that can happen during precontractual negotiations. It became clear in the course of analysis that the exact moment an offer is made is not always clear as the parties often proceed slowly towards contractual responsibility. In this chapter we build on this understanding of the negotiation process but focus instead on the issue of how the courts go about deciding when there has been an acceptance of the offer and the birth of a contract. Collins (2003) refers to this marrying of offer and acceptance as the ‘moment of responsibility’. The main focus of case law in this area has been on finding a way of determining when it is appropriate to attach legal liability to statements or conduct of the negotiating parties. In some cases it will be clear that a moment arrives when both the parties intend to be bound to each other and understand what they are committing themselves to. In this context, Collins gives the example of two parties signing a written contract in front of each other. But agreement is often much more difficult to pin down. One of the difficulties facing the judiciary is whether it should prescribe what the parties need to do in order for a contract to be enforceable or merely enforce what seems to be standard business practice. The dangers of the first approach are that the law could become irrelevant to the business community and begin to lack legitimacy. The problem with the alternative is that poor practice in the business community might be left unregulated.
