Talk:Posting rule

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The posting rules stem from a case in 1818 Adams v Lindsell This case provided that acceptance is complete on posting. This is an exception to the normal rule of contract where acceptance must be communicated to the offeror for it to be effective. It is important to note that for a contract to be formed three basic criteria must be met; namely there must be an offer, or something amounting to an offer; there must be an acceptace of the offer, or something amounting to acceptance; and there must be Consensus ad Idem or a meeting of the minds. The rationale for the posting rules used to be that the post office was the common agent of both parties involved (refer to law of agency). This meant that by handing the letter to the post office the person was effectively handing it to the principle, or the actual person. The modern rationale from the case of Brinkibon v Stahag Stahl is that of convenience. When communicating over distances using methods which create some delay, one party is always going to have to be disadvantaged. Following the original principle, many more have been developed in thecorpus of law that is the posting rules. These are; acceptance is complete on posting even if the letter is delayed in the post; acceptance is complete on posting even if the letter is lost and never arrives; If a perticular mode of communication is prescribed then acceptance is not complete on posting under the general rule; A letter must be properly desptached for acceptance to be complete on posting;for a revocation of offer to be effective, it must be communicated prior to acceptance; and many more cases relating to telegram, telex, telephone and other modes of instantaneous or neear instantaneous modes of communication. The general rule regarding instantaneous or near instantaneous modes of communication is that acceptance is not complete until received. Discussion of the doctrine of estoppel must also take place when considering the posting rules.There are currently no precedents pertaining to the posting rules and courier, 'txt', or email. Any novel cases must be resolved in light of technological advances, societal considerations, and the principles pronounced in Brinkibon v Stahag Stahl. These principles are that no universal rule can cover all posting rules cases and that new cases must be resolved by reference to the intentionsof the parties, sound business practice, and in some cases a judgement of where the risks should lie.This is written from a New Zealand perspective. It uses language and terms used in New Zealand. The posting rules are the same as the "mailing rules" or the "postal rules". This corpus of law, as with all, is immensely complex and is far more detailed than what I have written. This will need to be properly referenced and verified but it is all correct. Also it will need to be expanded. (talk) 05:57, 21 October 2010 (UTC)SDC

The mailbox rule (called the "postal rule" or "postal acceptance rule" in the UK, Australia and New Zealand -- WHY OH WHY is Wikipedia US-centric?! It annoys me that when I search for Postal Rule, mailbox rule comes out! (end rant) —Preceding unsigned comment added by (talk) 16:38, 10 July 2008 (UTC)

I, personally, am not familiar with the mailbox rule. I was curious if anybody knew if this was applicable to e-mail?

As far as technology goes, things have sped up since the first ruling on this case (1880) so I wonder if this has ever been tested in court regarding electronic mail, since it is relatively immediate.

It has not been tested. I personally think it depends on how the email is used. Sometimes it is used effectively instantaneously. Other times is is expected to be as slow as mail. The first case is regarded as being in 1818. Alan Davidson 23:14, 29 October 2006 (UTC)

In Entores v Miles Far East Corporation (Court of Appeal 1955) the English court of appeals held that in the case of instantaneous electronic communications (specifically telex), the time and place of the acceptance is when/where it is received by the other party. This was upheld by the House of Lords in Brinkibon v Stahag Stahl There seems to be no valid reason why it shouldn't apply to email. Thehappyhobo (talk) 12:47, 25 January 2008 (UTC)

Brinkibon v Stahag Stahl was about a telex. The general principle stated from the case is that the rule does not apply to instantaneous communications. But, the court commented that sometimes a telex can be regarded as instantaneous and at other times it is not. It gave a threefold test, which can be briefly summarised as depending upon the "use" by the parties. Email can on occasions be effectively instantaneous. But on other occasions the parties "use" it just like mail. Alan Davidson (talk) 15:00, 26 January 2008 (UTC)

Hong Kong Ordinance[edit]

I have deleted the Hong Kong Ordinance provision. The Hong Kong Ordinance in question, like many of the world's Electronic Transactions Acts, is based on the UNCITRAL Model Law of Electronic Commerce. However it is mistaken to suggest that it deals with an electronic clarification of the postal acceptance rule for electronic communications. First the ordinance was inaccurately quoted. For example the passage said "1. If the offeror designate an email address to receive the offer, then acceptance occur at the time when the email sent to this email address." But the Ordinance does not state when acceptance occurs. It provides that an electronic communication is sent when accepted by an information system. The word "accepted" does not mean acceptance in a contract sense. The Ordinance merely gives a default rule as to when electronic communication is sent and received. There are two schools of thought. ONE – Ask if the postal acceptance rule applies to emails (electronic communications). If your answer is YES, then the Electronic Transaction Acts (ETA) (and ordinance) can help. The rule states that there is a contract when posted – so we should apply the "sent" rule under the ETA. If the answer is NO, then either apply the received rule under the ETA or ignore it and use the contract rule of communication. TWO – Instead, treat the ETA as an intended substitute and statutory replacement of the postal acceptance rule; in which case the received rule should apply. The problem with this second school of thought, is that there is nothing in the Model Law of Electronic Commerce, nor the ETAs which suggests that it was intended to replace the postal acceptance rule. We are still waiting for a court to decide.Alan Davidson 06:46, 19 December 2006 (UTC)

Rough Diagram[edit]

I deleted the rough digram because it was misleading. The part marked "acccepted" was not acceptance. Alan Davidson 02:32, 15 November 2007 (UTC)

Electronic communications[edit]

There are two approaches. The first has two parts; but the order is to ask whether the postal acceptance rule applies and then (yes or no) apply the ETA. The second is to apply th ETA first as if it was written and intended to replace the postal acceptance rule. Alan Davidson (talk) 00:13, 16 December 2007 (UTC)

Revocation by a quicker method[edit]

The article states that if an acceptance is posted and then a rejection communicated by a quicker method, whichever one arrives first is binding. However in UK law this is incorrect- the law is actually unclear on this point. If the postal rule was held to apply then the acceptance would probably have been binding and the revocation would count as a breach of contract. However the point is under debate, and it would be up to the court to decide as there is no direct authority. Surely in a lot of cases it would be ridiculous to validate the revocation-otherwise offerees could post an acceptance and then revoke if they find out the contract is a bad one for them, before the letter arrives. (See "Contract Law" , E.McKendrick pp49-52) —Preceding unsigned comment added by (talk) 00:51, 23 July 2009 (UTC)

Tallerman & Co Pty Ltd v Nathan's Merchandise (1957)[edit]

In Tallerman & Co Pty Ltd v Nathan's Merchandise (1957)98 CLR 93, 111-112 Dixon CJ and Fullagar J took a more restrictive view of the circumstances in which the postal rule applies. They made it clear that the general rule is htat a contract is not completed until acceptance of an offer is actually communicated to the offeror. They found that a contract is completed by the posting of a letter of acceptance which cannot be justified unless it is inferred that the offeror contemplated and intended that his offer might be accepted by the doing of that act, actual communication being regarded as essential to the conclusion of agreement on anything. Also see Henthorn v Fraser [1982] 2 Ch 27, at 35, per Kay LJ. —Preceding unsigned comment added by Tmilnes (talkcontribs) 13:57, 30 March 2010 (UTC)

The quote is "The general rule is that a contract is not completed until acceptance of an offer is actually communicated to the offeror, and a finding that a contract is completed by the posting of a letter of acceptance cannot be justified unless it is to be inferred that the offeror contemplated and intended that his offer might be accepted by the doing of that act." The unusual feature here is the addition of the intention requirement. Alan Davidson (talk) 04:01, 31 March 2010 (UTC)

Gross errors in the main article[edit]

The law surrounding the Posting Rules, from an English law perspective can be summed up as follows:

The posting rules are an exception to the normal rules of offer and acceptance in contract formation where acceptance must be communicated to be effective.

Adams v Lindsell - Acceptance is complete on posting Dunlop v Higgins - Acceptance is complete on posting even if delayed in the post Household Fire Insurance v Grant Acceptance is complete on posting even if lost and never arrives Holwell Securities v Hughes - If a particular mode of communication has been prescribed, acceptance is not complete under the general rule Re London and Northern Bank - A letter must be properly despatched for acceptance to be complete on posting Henthorn v Fraser - Revocation must be communicated to the offeree to be effective Wenkeim v Arndt - Prima facie once an offer has been accepted (by posting) a contract has been formed and the acceptance cannot be retracted Countess of Dunmore case - This case states that it may be possible to retaract an aceptance by more expedient means if it is not disadvantageous to the offeror Canterbury District Health Board v National Union of Public Employees - When using fax, acceptance is not complete until communicated. It is unclear whether this means received by the fax machine, recived by a secretary or something similar, or received by the addressee. It is likely that each case will be decided on its own facts. Dewhurst v Cawrse - When using telephone acceptance is not complete until communicated.

Mainly obsolete precedents pertaining to telegram, telex etc (see Brinkibon v Stahag Stahl..., Miles v Entores Far East Corporation etc)

Electronic Transactions Acts - relate to email, SMS, data exchange etc. Are often not as useful as they seem on the face of it.

Courier - it is unclear whether the posting rules apply to courier. A courier operates much the same way as the old postal service in England did. It is initially hard to see why the rules would not apply to couriers. However, today there are many different courier companies so it may not be that the courier is an agent of both parties. Also, in an age where there are so many more reliable and quicker means of communicating, the posting rules may not be seen as having a place in the 21st century.

    • The discussion in the main topic surrounding conduct as acceptance (Brogden v Metropolitan Railways Co) has nothing to do with the posting rules. Nor does the creation of trans-national contracts - this is a body of law sui generis, and should not be found here.

There are many suggested underlying rationales for the posting rules; but what it seems to boil down to is that they giver effect to business efficacy. At the end of the day, in any case where there is a delay in communication, one party must run the risk of incurring liability. Because the offeror made the offer and intiated proceedings they can be seen to be assuming the risk. Analogy an be drawn here between the difference in principle between Felthouse v Brindley and Commerce Commission v Telecom Mobile.

Furthermore, there has been some suggestion that the entire corpus of law known as the posting rules should be abolished as some see it to be obsolete. What will come of this is uncertain. — Preceding unsigned comment added by (talk) 10:46, 13 August 2011 (UTC)