BetterLawNotes-5 (2)

CONTRACT LAW

Generally, a display of goods in a shop will be treated as an invitation to treat and not an offer. The leading case is the Boots case which was decided at a time when retailers were beginning to introduce the self-service format which is now almost universal in shops.

Pharmaceutical Society v Boots [1953] 1 QB 401 (CA)

Boots operated a self-service pharmacy in which customers could select certain medicines from the store’s shelves before paying at the counter. A registered pharmacist, present at the counter, could prevent completion of a sale if he thought fit. The Pharmaceutical Society argued that a sale took effect when the customer put the medicine in his basket and that this contravened the provisions of the Pharmacy and Poisons Act 1933 which required that certain medicines should only be sold under the supervision of a registered pharmacist. The Court of Appeal rejected this argument. The sale of the medicines took place at the sales counter; the display of medicines on the shelves was an invitation to treat and not an offer to sell. According to Somervell LJ, the customer made the offer to buy when, having chosen the item he wished to buy, he took it to the sales counter.

The principle in the Boots case was applied a few years later in another case involving the display of goods.

Fisher v Bell [1961] 1 QB 394

A knife was on display in the window of Bell’s shop. Behind the knife was a ticket with the words ‘Ejector Knife – 4s’. Bell was charged under s 1(1) of the Restriction of Offensive Weapons Act 1959 which made it an offence to offer for sale a flick knife. The charge was dismissed. 

‘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 . . .’ (Lord Parker CJ at 399)

But the display of goods for sale will not always amount to an invitation to treat. Consider the sale of petrol and diesel at filling stations. Typically, customers fill their cars with fuel from the self-service pumps located on the stations’ forecourts. It has been said that ‘the contract for the sale of the petrol [takes] place when the tank was filled and not, as in a supermarket at the till.’1 This conclusion indicates that the availability of petrol from the pumps comprises an offer to sell which the customer accepts by discharging the fuel into the car’s tank. Such an analysis makes good sense. Construing the filling of the petrol tank as an offer to buy the petrol, or an invitation to treat, would be problematic. In practice, by putting the petrol into the tank, ‘the die is cast’.2 The customer is committed to buying the fuel as, to all intents and purposes, there is no going back. 

1 Re Charge Card Services [1989] Ch 417, 4?? (Sir Nicholas Browne-Wilkinson VC). 

2 Korbetis v Transgrain Shipping BV [2005] EWHC 1345 (QB) at [10] (Toulson J).

A similar approach can be seen to have been adopted inthe Chapelton case:

Chapelton v Barry UDC [1940] 1 KB 532

The defendant council had placed a pile of deck chairs for hire, next to which was a notice stating that chairs could be hired ‘2d per 3-hour session’. The Court of Appeal held that the pile of chairs and accompanying notice constituted an offer by the defendant and not merely an invitation to treat.

Returning to the display of goods in shops, Boots and Fisher involved items, the sale of which a retailer might want to restrict. For example, a retailer will generally commit an offence if they sell alcohol or cigarettes or a knife to a 12-year-old child. It follows that a retailer might not want to offer a particular item to just anybody. But what about a box of cornflakes? Is it really the case that a supermarket is not ready, able and willing to sell a box of cornflakes to any shopper? What remains to be agreed? 

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