chapter  2
The case is also of importance in terms of the remedy. Was Mrs Carlill seeking compensation for breach of contract or specific enforcement of a contractual obligation based on the idea of non-performance? Could Mrs Carlill have sued the company in damages? If not, why not? 3 Under what circumstances might a manufacturer of a product be liable, on the basis of an advertising campaign, to compensate a consumer in damages? (Cf Wells v Buckland Saud [1965] 2 QB 170.) 4 Would these facts have given rise to a contractual obligation in a system where contract is founded on agreement rather than promise? 5 The defendants attempted to argue that there was no intention to create legal relations. Is such an argument ever likely to be successful (in the absence of a specific clause) in commercial and/or consumer transactions? 6 What if the advert had contained the following clause: ‘no statement whatsoever in this advertisement shall be capable of giving rise to any contractual relationship or any other legal rights or duties or to any liability in contract or otherwise? (Cf Jones v Vernon’s Pools Ltd [1938] 2
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Lord Denning MR:… In the present case the judge thought that the sellers in their original quotation got their blow in first; especially by the provision that These terms and conditions shall prevail over any terms and conditions in the Buyer’s order’. It was so emphatic that the price variation clause continued through all the subsequent dealings and that the buyer must be taken to have agreed to it. I can understand that point of view, but I think that the documents have to be considered as a whole. And, as a matter of construction, I think the acknowledgment of 5 June 1969 is the decisive document. It makes clear that the contract was on the buyers’ terms and not on the sellers’ terms and the buyers’ terms did not include a price variation clause…

Lawton LJ:… It cannot be said that the buyers accepted the counter-offer by reason of the fact that ultimately they took physical delivery of the machine. By the time they took physical delivery of the machine, they made it clear by correspondence that they were not accepting that there was any price escalation clause in any contract which they had made with the plaintiffs.