Читать книгу Canadian Business Contracts Handbook - Nishan Swais - Страница 22

Another example of something that looks like an offer but isn’t is what the law calls an invitation to treat. Some define an invitation to treat as an “offer to offer,” but a more effective way to approach the concept of an invitation to treat is to think of it as setting the stage to receive an offer.

A perfect example of an invitation to treat is a merchandise display in a store. It would be reasonable for you to think that the rows of canned goods, dairy products, and vegetables found in your local grocery store are being offered to you by the store for purchase, but that is not necessarily the case. At law, those items are simply being displayed as an invitation for you to make an offer to purchase them. Thus, whenever you buy something off a shelf in a store, the law considers you to be the offeror.

That might seem like a misguided analysis given that items on display in a store are usually labelled with a price. You may think: Clearly a hardware store is offering to sell me a hammer for $19.99 by displaying that hammer, with that price, on its shelf. Not so. According to the law, the hardware store is simply setting out some of its merchandise — in this case, a hammer — and labelling it with a price for the purpose of inviting you to make an offer to the store to purchase the hammer. By labelling that hammer $19.99, the store is merely indicating to you the offer it will accept from you to purchase it.

You might legitimately ask why the law would take such a counterintuitive approach. No store is in business just to show off its wares. Clearly, in any reasonable interpretation, the store is offering them for sale. Why is the law so seemingly out of touch with the way business is really done?

This is a good time to offer an observation about the law in general, because it can sometimes seem counterintuitive or out of touch. Let’s suppose that, instead of talking about a store, we were talking about a public art gallery. There are valuable paintings displayed in those galleries with much said about the price they could fetch at market. Would it be fair to say that the paintings were being offered for sale? Before you say “no,” doesn’t an art gallery look in many ways like a store?

Next, consider a display of science projects at a fair, one of which may present a patentable and, therefore, very valuable invention. Is it fair to conclude that the invention is for sale simply because it is displayed? Again, doesn’t a science fair in many ways look like a store?

How about a musician arranging her guitars on stage? Is she offering them for sale?

You might object by saying the paintings, science fair projects, and guitars aren’t labelled with a price! Then consider a collector displaying his rare coins and stamps at a hobby show. Stamps and coins are all labelled with a price. Does that mean that they are for sale? Books, too, are often labelled with a price. Does that mean your library is offering its books for sale?

The answer, of course, is no. Not everything that is on display is being offered for sale. That is the premise from which the law begins its analysis. The reason it does so is because the law recognizes that to force everyone who is displaying things (e.g., museums, musicians, stamp collectors, libraries) to deny that they are offering those things for sale is much more of a social burden than to simply deem the person who is viewing the display as the person who is making an offer if he or she wants to purchase what can be seen.

The law takes the approach that nothing is offered for sale merely by having been displayed, even in a store. At best, the person doing the displaying is merely setting the stage for an offer, which the law calls an invitation to treat.

You can now see how something that initially seemed counterintuitive and out of touch with the way business is really done makes perfect sense on closer examination. The law is full of such examples.