the hands of an agent). Here, the objective nature of agreement as discussed earlier comes into sharp focus. It is, conventionally, seen as insufficient to simply change one’s mind about the offer, or even to take steps to contract with a third party (for example, by disposing of goods elsewhere). Instead, the change of mind must in some way be communicated to the offeree – at least sufficiently to have made a reasonable person in the offeree’s position aware of the new reality. The classic authority for this is usually seen to be the case of Dickinson v Dodds. On Wednesday 10 June, Dodds offered in writing to sell houses to Dickinson. He stated that his offer would remain open until Friday 12 June at 9 am. On Thursday afternoon, Dickinson discovered from Berry (his agent) that Dodds had been negotiating with a third party, Allan, to sell the houses. Despite this, Dickinson purported to accept the offer via a letter communicated through Berry to Dodds by Friday 12 June at around 7 am. It transpired that, on Thursday, Dodds had agreed to sell the houses to Allan. The judge at first instance found in favour of Dickinson. The Court of Appeal reversed this decision: Dickinson v Dodds [1876] 2 Ch D 463, CA, p 471

doi:10.4324/9781843141518-28

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the hands of an agent). Here, the objective nature of agreement as discussed earlier comes into sharp focus. It is, conventionally, seen as insufficient to simply change one’s mind about the offer, or even to take steps to contract with a third party (for example, by disposing of goods elsewhere). Instead, the change of mind must in some way be communicated to the offeree – at least sufficiently to have made a reasonable person in the offeree’s position aware of the new reality. The classic authority for this is usually seen to be the case of Dickinson v Dodds. On Wednesday 10 June, Dodds offered in writing to sell houses to Dickinson. He stated that his offer would remain open until Friday 12 June at 9 am. On Thursday afternoon, Dickinson discovered from Berry (his agent) that Dodds had been negotiating with a third party, Allan, to sell the houses. Despite this, Dickinson purported to accept the offer via a letter communicated through Berry to Dodds by Friday 12 June at around 7 am. It transpired that, on Thursday, Dodds had agreed to sell the houses to Allan. The judge at first instance found in favour of Dickinson. The Court of Appeal reversed this decision: Dickinson v Dodds [1876] 2 Ch D 463, CA, p 471

ABSTRACT

Dickinson v Dodds [1876] 2 Ch D 463, CA, p 471 James LJ (after referring to the document of the 10th of June, 1874, continued): The document, though beginning ‘I hereby agree to sell’ was nothing but an offer and was only intended to be an offer, for the plaintiff himself tells us that he required time to consider whether he would enter into an agreement or not. Unless both parties had then agreed, there was no concluded agreement then made; it was, in effect and substance only, an offer to sell. The plaintiff, being minded not to complete the bargain at that time, added this memorandum: ‘This offer to be left over until Friday, 9 o’clock am, 12th June, 1874.’ That shews it was only an offer. There was no consideration given for the undertaking or promise, to whatever extent it may be considered binding, to keep the property unsold until 9 o’clock on Friday morning; but, apparently, Dickinson was of opinion, and probably Dodds was of the same opinion, that he (Dodds) was bound by that promise and could not in any way withdraw from it or retract it until 9 o’clock on Friday morning, and this probably explains a good deal of what afterwards took place. But it is clear settled law, on one of the clearest principles of law, that this promise, being a mere nudum pactum was not binding, and that at any moment before a complete acceptance by Dickinson of the offer, Dodds was as free as Dickinson himself. Well, that being the state of things, it is said that the only mode in which Dodds could assert that freedom was by actually and distinctly saying to Dickinson, ‘Now I withdraw my offer’. It appears to me that there is neither principle nor authority for the proposition that there must be an express and actual withdrawal of the offer, or what is called a retractation. It must, to constitute a contract, appear that the two minds were at one at the same moment of time, that is, that there was an offer continuing up to the time of the acceptance. If

there was not such a continuing offer, then the acceptance comes to nothing. Of course, it may well be that the one man is bound in some way or other to let the other man know that his mind with regard to the offer has been changed; but, in this case, beyond all question, the plaintiff knew that Dodds was no longer minded to sell the property to him as plainly and clearly as if Dodds had told him in so many words, ‘I withdraw the offer’. This is evident from the plaintiff’s own statements in the bill.