REVOCATION OF THE OFFER

In English law, the general principle is that every offer regardless of its terms can be revoked at anytime before it is accepted and it is immaterial that the offer is expressed to be open for a given time or not.6u This rule that gives the offeror total freedom to retract the offer before acceptance is inextricably linked to and best explained by the English law doctrine of consideration.61

An offer therefore becomes irrevocable if it is supported by consideration, is under seal, or where there has been some reliance62 or where a special statute makes it irrevocable.63 It is evident from the decision in Nangah v. Asonganyi,64 that the courts in Anglophone Cameroon will not approve of a revocation by the offeror if some consideration has been furnished by the offeror or if there has been part performance. In that case, the defendant offered to sell a building to plaintiff for 10 million francs. The plaintiff agreed to buy the building and proceeded to make an advance payment of 3 million francs. When the defendant later attempted to revoke his offer, the plaintiff sued, asking the court for an order for specific performance.

It was held that the defendant could not revoke his offer as the plaintiff had already made an advance payment of a third of the asking price.

In Civil Law Cameroon, the general rule also is that an offer is normally revocable before acceptance, if the offeror does not provide for any period of

w) Byrne v. Leon van Tienhoven (1880) C .P .D . 344; see also Routledge v. Grant (1828) 4 B ing 653.

61 See chapter 6 below .

62 For e .g . Lloyd v. Stanbury f 1971] 1 W .L .R . 535, where a person w ho had offered to sell land was accordingly held liable for certain expenses incurred by the offeree in reliance on the offer. See also Anglia Television Ltd. v. Reed [1972] 1 Q.B. 60.

63 For exam ple, the (English) Companies Act 1985, s. 82 (7); and the Uniform Law on the Formation o f Contracts for the International Sale o f Goods (ULFIS) Art. 5(1).

64 H C B /79/85 (Bamenda, 2 3 .1 .1 9 8 7 , unreported).

irrevocability. This rule is not expressed in any statutory provision,65 but it is unanimously upheld by leading French writers66 and the courts.

Up to this point there is no difference between English and French law. The main difference occurs with respect to offers expressly stated to be irrevocable. While English courts accept the revocation of an offer even if expressly stated to be open for a given time, French courts will not sanction or approve such a revocation. In Isler v. C hastan67 with facts very reminiscent to the English case of Routledge v.

G ra n t,68 the French Cour de Cassation declared that while an offer may in principle be revoked as long as it has not been accepted, the position is different where the offeror has expressed or implied an undertaking not to revoke before a certain time and that, the offeror having tacitly obliged himself to keep the offer open (until the offeree has made his inspection), could not have revoked his offer on the day alleged without committing a fault of a kind which will entail liability on his part.

Under the French system, therefore, an offeror may withdraw his offer before the expiration of the time he allowed for acceptance but any such untimely or premature withdrawal may render him liable in damages. Even if the offeror prescribes no set period for acceptance he is still bound to keep it open for a reasonable time. If an offer is revoked before a reasonable time elapses or before the end of a prescribed time of acceptance, no contract is formed, technically speaking, since there can be no acceptance. But the offeree can claim compensation for the loss which the

65 But art. 932 o f the Civil Code providing that "a gift inter vivos binds the donor and has effect only as from the day it is expressly accepted", im plicitly establishes the rule that an offer o f a gift may be revoked, but this provision it is acknowledged, cannot be extended to all contracts.

66 One may cite for exam ple, Aubry, Rau, and Bartin, O b ligation s, para. 343: "Since an offer is insufficient o f itself to bind him w ho made it, it may generally be revoked"; Planiol & Ripert (ed.

Esm ein), para. 131; Mazeaud/Chabas, para. 135.

67 Cass civ. 17.1 2 .1 9 5 8 , D .1 9 5 9 , 33; Kahn- Freund, Sourceb ook , p. 328.

68 (1828) 4 Bing 653.

premature revocation caused him.69

Three main theories have been advanced to justify the offeror’s liability for revocation in these circumstances.70

According to one - the abuse of right (abus de droit) theory - the offeror when withdrawing the offer may incur a certain responsibility of a quasi-delictual nature that entitles the offeree to recover damages for the detriment he suffers when through reliance on the offer, he makes the preparation to perform. This theory is based on article 1382 of the French Civil Code: "any act whatever of man which causes damages to another obliges him by whose fault it occurred". It follows from this that the offeree cannot obtain damages unless he proves, in addition to revocation, a fault committed by the offeror.

The second theory - the preliminary contract theory71 - holds that the offeror offers not only to enter the principal transaction but also a preliminary contract which binds him to keep the principal offer open for a certain time. This preliminary offer being purely advantageous for the offeree, is concluded by tacit acceptance. If the offeror then withdraws the offer to enter the principal transaction, he is liable in damages for breach of the preliminary contract.72 It has been suggested that this

69 See the oft-cited case o f Jahn v. Mme Cherry, Bordeaux 17 Jan. 1870 S. 1 8 7 0 .2 .2 1 9 ; See also Schlessinger, p. 771; The Minguet case: Cass. 8 Oct. 1958 Bull. 1.331 is also pertinent, cited in Schlessinger, p .770.

70 For further details o f these theories, see generally W eill & Terre, para. 139; Planiol & Ripert (ed.

Esm ein), para. 132; Ghestin, para. 217.

71 D em olom be, C ours de C ode N apol& m , T. X X X IV , N os. et s ., p. 48 et s ., is credited w ith the formulation o f this theory. See Aubert, para. 105

72 The CA at COLM AR used this theory in a case where a subcontractor w ho had based his offer on an error o f calculation had withdrawn it after the offeree had used it as a basis for a successful tender.

The court held that an offer was binding 'des lors q u ’il resulre d'un accord expres ou tacite, mais indiscutable, qu 'elle a etc form ulee pour etre maintenu pendant un delai determine’, but found that in the case before it no such agreement was proved. When the offeror made his offer, he did not know that the offeree was intending to use it as a basis for making a tender. (Colmar, 4 Feb. 1936, DH

1936, 187).

theory should be likened to the concept of culpa in contrahendo,73 of German origin. negotiations they enter into a pre-contractual connection o f an innominate kind and tacitly concluded whereby a relationship o f confidence arises, im posing on the parties a duty o f d iligen ce in regard to the other party’s reliance. This theory has since greatly influenced French doctrine and jurisprudence (see Planiol & Ripert (ed Esm ein), Part I 152 para. 2 .0 It must be noted, h ow ever, that culpa in

Common and Civil law Cameroon on the question of revocation of an offer. In Common Law Cameroon, subject to the doctrine of consideration, part performance or reliance, an offer can be revoked anytime before acceptance without the offeror being liable. In Civil Law Cameroon, on the other hand, no consideration or part performance is needed in order that the offeror be held liable for revocation. As usual, this difference can be of practical significance in the case of conflict of laws.

It is not impossible to a imagine a situation in which an offeror may be held liable for revocation in one part of the country (civil law) while he is not liable in the other part (common law).

It is yet to arise in Cameroon so I have had to rely on the Canadian case of Renfrew Flour Mills v. Sanschagrin77 to make the point. The Renfrew Mills, in Ontario, offered to sell flour to Sanschagrin, who lived in Quebec. The offer stipulated that it was to be accepted within eight weeks "otherwise this offer is to be withdrawn". Before the expiration of the eight weeks, the offeror wrote saying:

"Please consider our offer... withdrawn". Sanschagrin protested, and placed an order for the quantity of flour stated in the offer. Not receiving delivery, he sued for damages. The Court of Appeal held that the law of Ontario (common law) applied to the transaction78 and that the principle applicable was that the offeror could retract his offer even before the time he expressly allowed for acceptance, if no consideration had been given for the promise. There having been no consideration, Renfrew Mills were entitled to have withdrawn their offer.

This is of course the classic common law position.79 Had it been that the law of Quebec (civil law) governed the transaction, Renfrew Mills may well have been held liable for their untimely revocation. It is suggested that were such a case to arise in Cameroon, it should be approached in the same way as the Renfrew case i.e. by first determining the applicable law before deciding the question of revocation.

77 [1928], 45 K.B. 29 (Que. C .A .).

78 Because the offer had been communicated in Ontario.

79 See The Albeko, infra, note 108.

It must be said that the civil law rule whereby the offeror is held liable for untimely revocation (especially as explained by abus de droit theory) is more responsive to commercial and practical realities than the rule in common law Cameroon whereby the offeror can revoke with impunity without being liable, as long as he does so before acceptance. In fact this common law rule does present some difficulties and has been subject to some serious criticisms.80

Particular difficulties of this rule are best illustrated in the case of unilateral contracts where a performance is executed for a promise. Suppose, for example, A promises B one million francs CFA if B climbs Mount Cameroon. Suppose B subjects himself to considerable strain to accomplish this feat. Can A retract his offer after B has already done much of the climbing. On the common law principle, it is clear A has a legitimate right to do so since the offer has not been fully accepted. This is so because, technically speaking, an acceptance is only complete when the act is fully performed. Yet there is no doubt that B has suffered some detriment or hardship or loss. Is he therefore not entitled to any remedy whatsoever ?

There is evidence to suggest that in the case of unilateral contracts, the courts in Common Law Cameroon will treat the offer as irrevocable once the offeree has started to comply with the requested performance, for it is reasonable to presume an undertaking on the part of the offeror to be bound by his offer once performance has begun. Although Bassum v. Youya81 is not a classic "I will pay you a hundred pounds if you will walk to York" case, it is instructive here since it is concerned with a unilateral contract. A promised to pay B a certain block sum if B would work for him. B did work for A for several years. In an action by B for the promised sum, the Bamenda Court of Appeal held that he must succeed. Even though the court did not think it was making any specific pronouncement on the revocation of offers, this decision nevertheless establishes the fact that A could not retract his offer or renege

80 The (English) Law Reform Committee 1937 proposed that it be abolished. It was again exam ined by the Law Com m ission 1975 in Working Paper no. 60. In som e special cases, legislation intervened

to make offers irrevocable. For example, Companies Act 1985, s. 82 (7). But this has sin ce been parh'aUj repealed (f^ K.Uttr>v. Lo LstetL i^cuuvn *

81 Supra, note 11.

on his promise after B had acted on it. This decision is laudable because it allows commonsense to prevail over strict law. It is thus hoped that the courts will consistently adopt such a position in order to circumvent any harshness that a strict application of the common law rule (whereby an offer can retract his offer anytime before acceptance) may cause.