Lapse of Offers Due to Changed Circumstances: A Contract Conversation

26 Pages Posted: 4 Aug 2011 Last revised: 5 Apr 2015

See all articles by David McLauchlan

David McLauchlan

Victoria University of Wellington, Te Herenga Waka - Faculty of Law

Rick Bigwood

University of Auckland - Faculty of Law

Date Written: August 4, 2011

Abstract

It is trite law that a change of circumstances between the making of an offer to enter into a contract and a purported acceptance of that offer may render the offer incapable of acceptance so that no contract is in fact formed. The juristic basis of this legal postulate, however, is far from clear and uncontroversial. A rare opportunity for a senior court of an Anglo-Commonwealth legal system to clarify the position was presented to the New Zealand Supreme Court recently in Dysart Timbers Ltd v Nielsen. Unfortunately, the clarification was not forthcoming. In this article, which is written in the style of a conversation between a law student and his or her contract professor, the authors attempt to expose the court’s failure to expound the applicable legal approach in a coordinated, principled and unambiguous way. All the court needed to ask was: in terms of its purported assumption of legal contractual obligation, what would the appellant’s offer, read as a whole against the relevant background, reasonably have been understood by the respondent offeree to mean?

Keywords: contract formation, offer, lapse, change of circumstances

JEL Classification: K12

Suggested Citation

McLauchlan, David and Bigwood, Rick, Lapse of Offers Due to Changed Circumstances: A Contract Conversation (August 4, 2011). Journal of Contract Law, Vol. 27, 2011, Victoria University of Wellington Legal Research Paper No. 8/2013, Available at SSRN: https://ssrn.com/abstract=1904732

David McLauchlan (Contact Author)

Victoria University of Wellington, Te Herenga Waka - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

Rick Bigwood

University of Auckland - Faculty of Law ( email )

Private Bag 92019
Auckland
New Zealand

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
330
Abstract Views
2,602
Rank
167,260
PlumX Metrics