Karen,
Address
Date
Dear Karen,
Hello, I am sorry for the recent legal disagreements between you and Kay Sounds. Regarding your concern whether there was a contract between you and Kay Sounds, it would be important if you understood that a contact is regarded as the legally binding agreement that exists between two individuals[1]. There are many elements of a contract including the offer, acceptance, consideration as well as the capacity borne by the two or more individuals[2].The first rule regarding the formation of a contract is that there is a need to test whether the offer has been accepted. This can be through either the words of mouth or the reputation of the particular person. As such, Kay Sounds induced you to be bound by a contract. The other thing is that if the person being offered does nothing towards the offer, he or she is not bound by the contract. However if the offeree, the person who is being offered the case, has solicited the offer, then the agreement is that he/she should not be put through the troubles of rejecting the offer whatsoever[3]. The case of Carlil v Carbolic Smoke Ball Co 1983[4] is one of the cases that fundamentally identify the major aspects of a contract. In this case, you accepted the offer, and thus, there was a contract between you and Kay Sounds.
Moreover, it is imperative for you to understand that a fundamental element in the formation of a contact is the offer[5]. The person who is making the offer, also known as the offerer, puts the terms in the lace. The person who the offer is intended for is known as the offeree. The offer has to be differentiated from a mere expression of intention[6]. In this case, an offer was made by the Kay records to deliver the version 10 of recording machines to you at a cost of $100. The contract is formed upon the acceptance of the offeree. The condition of the contract dictates that a person should have the capacity to contract[7]. You and Kay Sounds seem to have agreed meaning that acceptance part has covered. This relates to the case of Entorres v Miles Far East (1955)[8]
On your concern pertaining to whether you were entitled to any remedies, it would be noted that in this case, the first breach of the contract occurred when the offerer, Kay sounds, presented the wrong device. You had requested and paid for a version 10 of the recorded device, which was known as the Vitamix 10 machine. You sent a cheque that was worth $150, which was more than the quoted amount. The terms of the contract were that you as the customer could receive the Vitamix 10 machine. However, Kay sounds sent a different device to you with the claim that the machine that you had ordered was out of stock. The reasons this is a breach of contract is that the contract has not indicated this information. First, during the formation of the contract, Kay sounds should have indicated that in case the Vitamix 10 machines ran out of stock, and they would offer an alternative machine[9]. The corrective action, in this case, was that since there were changes in the terms of the contract, Kay Sounds ought to have communicated to you in the contract rather than executing the changes without your knowledge[10]. Kay sounds therefore made a counter offer, which they communicated to you. Thornton v Shoe Lane Parking 1971[11] case best helps explains this situation. Some components are integrated that were never in the initial contract.
Regarding your concern whether Kay Sounds can escape liability, you should note that with the introduction of new terms and conditions in the contract leading to the counter offer, you, the offeree ought to have complied or rejected the terms after notification[12]. There is a breach of the contract here since you make the counter offer but you do not communicate. The silence, in this case, can be interpreted as compliance. This was seen in the case of Felthouse v Bindley of 1862[13]. With the introduction of the terms for time, you ought to have returned the wrong machine that was a Vitamix 09 instead of a Vitamix 10. However, since you had a personal issue to attend to, you did not communicate to Kay Sounds. The condition was that you were to return the machine to Kay sounds within five days.
Another breach on your side is that you opened up the device. The terms of the contract were that Kay sounds would be responsible for repairing the machine if there was any dispute in the quality. Therefore, the condition was that there would be no repairs if the machine was repaired by any other unauthorized person[14]. You breached these terms by allowing one of your friends to open it up to check what was wrong. This means that you are not entitled to any remedies whatsoever because the law states clearly that upon any lapse of time of the contract, the offer automatically terminates and since you were aware of such a condition, you were entitled to bear all the responsibility[15]. This is similar to the case of Ramsgate Victoria Hotel v Montefiore in 1866[16]. In the same accord, regarding the replacement or the repair of the device you are not entitled to any remedy because the terms of the conditions had stated that only Kay sounds were responsible for making any repairs.
Seemingly, you violated the terms of the contract, leading to its termination. As such, Kay sounds has all the legal reasons to escape any liability that is presented in this case. Therefore, you should be satisfied with the protection that is offered to you by law of persons in your dealings with Kay sounds.
Bibliography
Alexandrov S, ‘Breaches Of Contract and Breaches of Treaty’ (2004) 5 the Journal of World Investment & Trade
Baird, Douglas G. “The Boilerplate Puzzle.” Michigan Law Review 104.5 (2006): 933-952
Beale H and Tallon D, Contract Law (Hart Pub 2002)
Bonell M, An International Restatement of Contract Law (Transnational Publishers 2005)
Charman M, Contract Law (Willan Pub 2007)
Collins H, ‘European Social Policy And Contract Law’ (2007) 3 European Review of Contract Law
Duarte d’Almeida, Luís. “Margaret Martin, Judging Positivism, Oxford: Hart Publishing, 2014, 185 pp, hb£ 45.00.” (2015): 699-707.
Forray V, ‘Property Structures Underlying Contract’ (2013) 9 European Review of Contract Law
Grundmann S, ‘The Future of Contract Law’ (2011) 7 European Review of Contract Law
Lando O, ‘Culture and Contract Laws’ (2007) 3 European Review of Contract Law
McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.
Nuno Manuel Pinto Oliveira, ‘The Private Law Society and Contract Law Application’ (2009) 5 European Review of Contract Law.
Poole J, Textbook On Contract Law (Oxford University Press 2004)
Stone, Richard. Q&A Contract Law. Routledge, 2014
Supra, Bell V. Lever Bros, and Couturier V. Hastie. “See Ramsgate Victoria Hotel Ltd. v. Montefiore (1866) LR 1 Exch.” Legal Issues in Local Government Administration in Nigeria (1999): 17.
[1] Beale H and Tallon D, Contract Law (Hart Pub 2002)
[2] ibid
[3] ibid
[4] Baird, Douglas G. “The Boilerplate Puzzle.” Michigan Law Review 104.5 (2006): 933-952
[5] Forray V, ‘Property Structures Underlying Contract’ (2013) 9 European Review of Contract Law
[6] Poole J, Textbook On Contract Law (Oxford University Press 2004)
[7] Grundmann S, ‘The Future Of Contract Law’ (2011) 7 European Review of Contract Law
[8] McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.
[9] Charman M, Contract Law (Willan Pub 2007)
[10] Nuno Manuel Pinto Oliveira, ‘The Private Law Society and Contract Law Application’ (2009) 5 European Review of Contract Law.
[11] Stone, Richard. Q&A Contract Law. Routledge, 2014.
[12] Bonell M, An International Restatement Of Contract Law (Transnational Publishers 2005)
[13] Duarte d’Almeida, Luís. “Margaret Martin, Judging Positivism, Oxford: Hart Publishing, 2014, 185 pp, hb£ 45.00.” (2015): 699-707.
[14] ALEXANDROV S, ‘Breaches Of Contract And Breaches Of Treaty’ (2004) 5 The Journal of World Investment & Trade
[15] Lando O, ‘Culture And Contract Laws’ (2007) 3 European Review of Contract Law
[16] Supra, Bell V. Lever Bros, and Couturier V. Hastie. “See Ramsgate Victoria Hotel Ltd. v. Montefiore (1866) LR 1 Exch.” Legal Issues in Local Government Administration in Nigeria (1999): 17.