2.4.3. Shop window displays

The slightly different issue of the shop window display was dealt with in Fisher v Bell. The defendant displayed in his shop window a “flick-knife” with the price attached. He was charged with an offence under s 1(1) of the Restriction of Offensive Weapons Act 1959, namely “offering for sale” a “flick-knife”. It was held by the Divisional Court that no offence had been committed, because the display of the knife was an invitation to treat, not an offer.

Lord Parker had no doubt as to the contractual position:

It is clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.

No authority was cited for this proposition, but the approach is certainly in line with that taken in the Boots case. There has never been any challenge to it, and it must be taken to represent the current law on this point. It was followed in Mella v Monahan, where a charge of “offering for sale” obscene articles, contrary to the Obscene Publications Act 1959, failed because the items were simply displayed in a shop window.

2.4.5. Advertisements

Where goods or services are advertised, does this constitute an offer or an invitation to treat? It would be possible here for the law also to base its principles on “party freedom”: that is, a person putting forward an advertisement should not be taken to be waiving the right as to whom he or she chooses to contract with. In fact, however, the cases on this area show the courts adopting an approach based on pragmatism, rather than on the “party freedom” principle. The answer to the question “is this advertisement an offer?” will generally be determined by the context in which the advertisement appears, and the practical consequences of treating it as either an offer or an invitation to treat.

Generally speaking, an advertisement on a hoarding, a newspaper “display’’ or a television commercial will not be regarded as an offer. In other words, the practical consequences of treating the advertisement as an offer would be such that it is highly unlikely that this is what the person placing the advert can have intended. The advertisement is nothing more than an invitation to treat.

It follows from this that these types of advertisement should be regarded simply as attempts to make the public aware of what is available. Such advertisements will often in any case not be specific enough to amount to an offer. Even where goods are clearly identified and a price specified, however, there may still not be an offer.

This does not mean, however, that all newspaper advertisements will be treated as invitations to treat. If the guiding principle is promisor objectivity, rather than party freedom, then provided that the wording is clear, and that there are no problems of limited supply, there seems no reason why such an advertisement should not be an offer.