Elements in a Contract VII – Express Terms I

Now that we have identified the prerequisites to a contract, it is time for us to take a closer look at the terms in a contract, after it has come into existence. Terms may be either express or implied. The terms in a contract can be made orally, in writing or part orally and part in writing.

Whether an oral statement made prior to entering into a contract becomes a term of the contract or otherwise is dependent on the facts of the case. When a statement is made, without which the parties would not have entered into the contract to start with, the statement becomes a part of the contract.

In Bannerman v White (1861), the plaintiff (claimant) agreed to purchase some hops from the defendant for brewing purposes. The plaintiff stipulated that the hops must not be treated with sulphur prior to the purchase because it was intended for use in the manufacture of a consumable product.

The defendant assured the plaintiff that the hops had not been treated with sulphur but as it turned out they were. The defendant argued that the representation was not a term in the contract but the courts determined otherwise because the plaintiff had emphasized the importance of the term, prior to concluding or formalizing the agreement.

Under normal circumstances the more time that has lapsed between the representation and the conclusion or the formalization of the agreement, the higher the probability that the term would not be regarded as part of the contract.

In Routledge v McKay (1954) the plaintiff acquired a motorcycle and a sidecar from the defendant. According to the supporting documents, the motorcycle was listed as a 1942 model which was exactly what the defendant told the plaintiff it was, prior to the purchase.

It later turned out that the motorcycle was a 1936 model and the plaintiff brought an action against the defendant. The purchase however was not made at the time of the negotiations but a few days later, after the terms had been communicated during which time the plaintiff could have made further checks or made further enquiries if he so desired.

It was held that the statement as to the model of the motorcycle was not a term in the contract but a mere representation, especially so, because there was no mention of the model in the written agreement which followed the verbal representation. If the term was crucial it only stands to reason that the parties would have incorporated it into the written agreement that followed.

If the defendant however professes to have specialized knowledge or claims to be an expert in the field than the courts will be more willing to deem that any oral representation he or she has made to be a term of the contract.

In Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd (1965) the plaintiffs were looking for a Bentley car and had certain criteria that they based their selection upon. The defendant a car dealer who was an expert on Bentley cars sold them a car based on the criteria that the plaintiffs had set. It later turned out that the car in question did not fit the criteria the plaintiffs had set and the plaintiffs sued. The courts held that the oral statements were indeed a part of the contract and the plaintiffs were successful in their claim.

In Oscar Chess v Williams (1957) however, the defendant had sold a car to the plaintiffs based on the model that was stated in the vehicle’s registration book. The car was in fact an older model and the market value of the car was much less to what the plaintiffs had paid. The plaintiffs sued for the difference but their claim failed because the defendant was not an expert on cars and he in good faith had sold them the car based on the details in the registration book which presumably had been altered by the previous owners.

When the terms of an oral agreement are transferred to a written contract the presumption is that all the terms that have been agreed upon would be condensed into writing and any term that has not been transferred to the written document is deemed to be a mere representation or part of the negotiations prior to entering into the contract and not as a term of the contract.

In Duffy & Ors v. Newcastle United Football Co. Ltd. the club offered its seasonal ticket holders the option to purchase a bond that guaranteed them a designated seat for 10 years. The seats however were subject to a clause in the contract which stipulated that should the seats not be available the club will provide them with the best possible alternative.

Relying on the clause the club later sought to move the seating of some of its supporters in order to expand the stadium. The supporters argued that there were verbal representations made, prior to entering into the contract that guaranteed them the best seats. It was held that the verbal representations did not form part of the contract and that the club was allowed to reallocate the seats if there was good and sufficient reason to do so.

Therefore, where possible it would be easier to incorporate any oral/verbal term(s) made during negotiations into a written agreement and if anything, it is evidence that goes to show that both parties intended the terms to be part of a binding agreement/contract (a contract is a legally binding agreement).

Despite the importance that is attached to the time factor or rather the lapse of it, if the term was of sufficient importance than it would be deemed to be part of the contract. Yet again it depends on the facts.

In Schawel v. Reade (1913) the plaintiff purchased a horse for stud purposes from the defendant. Prior to the purchase the plaintiff was told by the defendant that the horse was sound and that it suffered from no inherent illnesses. So sound in fact, that there wasn’t a need for a veterinary examination. The plaintiff accordingly purchased the horse without having it examined by a vet and it later turned out that the horse suffered from a hereditary disease and was not suitable for stud purposes.

It was held that the oral representation, despite the significant delay, was a term of the contract because the representation was so important that without it the purpose of the contract would be defeated.

Copyright © 2017 by Dyarne Ward

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Elements in a Contract VI – Intention to Create Legal Relations

The next element in a contract is an intention to create legal relations. In most commercial transactions, there is a presumption that the parties intended to create a legal agreement unless it can be proved otherwise.

In Sandler v Reynolds (2005) the plaintiff had entered into an oral agreement with the defendant in that the plaintiff should be the ‘ghost writer’ of the defendant’s autobiography. The plaintiff had gone as far as proposing the title and outlining the first chapter when the defendant changed his mind and entered into an agreement with another writer. In was held that there was an intention to create legal relations based on the facts of the case and that the advance of £70,000 was to be shared equally between the plaintiff and the defendant.

However, if it is clearly stated or stipulated that the agreement was binding in honor only and that there was no intention to create legal relations than it would be deemed that there was no intention to create legal relations as in the case of Jones v Vernon Pools (1938).

The onus of proving that there wasn’t an intention to create legal relations is on the party that intends to establish that a contract did not come into existence.

In Edwards v Skyways Ltd. (1964) the plaintiff was a pilot in the defendant company and a member of the company’s pension fund. The plaintiff was later made redundant by the company but it informed the plaintiff that he would receive payments equivalent to his contribution to the pension fund.

The company failed to make the payments and the plaintiff sued. It was held that there was a contract in place and that the onus of disproving an intention to create legal relations rested on the party that sought to dispute the existence of a contract.

Not all agreements however are legally enforceable or mature into contracts. Despite the willingness of the parties to be bound by a contract, at the time the agreement was made, the courts may infer for public policy reasons, that there was no intention to create legal relations especially when it comes to contracts made within households. Therefore, certain agreements even if they do resemble contracts, may not be legally enforceable.

In the case of the husband who agreed to send his wife a certain amount of money, monthly, while working overseas and then refused to do so when the relationship broke down, it was held that there was no contract in place and that the agreement between the husband and the wife was a purely social agreement that could not be enforced – Balfour v Balfour (1919).

Agreements such as the one made in Balfour v Balfour (1919) are agreements between parties that do not result in contracts within the meaning of the term in law and the most common example of such agreements are agreements between husband and wife or partners.

Similarly, in the case of the kindly benefactor who had agreed to pay £4,000 per year to a chapel, for 5 years, to help it pay off its debts, it was held that the promise to assist was merely a gratuitous promise that did not amount to a contract – Re Hudson (1885).

The ratio or reasoning in Balfour v Balfour also extends to the parent child relationship. In Jones v Padavatton (1969) a mother persuaded her daughter to leave her high paying job in the US and move to London to complete her bar. In addition to giving her a certain amount of money each month the mother also purchased a house for her to help her financially until she completed her exams. The daughter subsequently moved to London but did not complete her bar as agreed but chose to marry and settle down instead. The mother then sought possession of the house and the court held that there wasn’t a legally binding agreement in place and that the agreement between the mother and daughter was not intended to have legal consequences.

The situation however is slightly different when it comes to former partners who are legally separated. In Merritt v Merritt (1970) – a husband and wife separated and there was an outstanding debt owing on the house which the couple had jointly purchased. The couple entered into an agreement whereby the husband would pay the wife a certain amount each month until the mortgage was fully paid off and once the mortgage was out of the way, the house would be transferred to the wife. The husband failed to transfer his interest in the house to the wife once the payments were complete and the wife brought an action against the husband. It was held that there was a binding agreement and that it was enforceable at law.

When it comes to social agreements, intention is inferred if there is some certainty that the parties intended to create a binding contract i.e. the element of certainty needs to be satisfied. In Simpkins v Payns (1955) a tenant, landlady and her granddaughter entered into a weekly competition run by a newspaper. A coupon was sent in, in the landlady’s name each week and all three took turns to send in the entries and the nominal sum which accompanied the entries based on an agreement that should any of them win the prize, it would be split or shared three-ways. The landlady won the prize and upon winning refused to give the tenant his share of the winnings. The tenant brought an action in court against the landlady and it was held that there was indeed a valid contract.

In the more recent case of Wilson v Burnett (2007) three friends came to an agreement that if they were successful at bingo on a particular evening, they would split the prize money three-ways. One of the friends was extremely successful and won in excess of £100,000. The other two friends brought an action to claim their share of the prize money. It was held that the issue before the courts was to decide whether there was a binding agreement made between the friends, prior to playing bingo that evening and if the agreement was of sufficient certainty. The plaintiffs were unsuccessful in their claim.

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Elements in a Contract V – Consideration

Having identified the first two elements in a contract, offer and acceptance, let’s move on to the third, consideration. Consideration can be in the form of abstaining from performing an act, it could be in the form of performing an act or acts stipulated by the offeror as in the case of Carlill v Carbolic Smoke Ball Co (1893), it could be inferred or implied by conduct as in the case of Brogden v Metropolitan Rly Co. (1877) and it could be part consideration provided in lieu of completing the terms stipulated in a contract, Dahlia v Four Millbank Nominees (1978).

In Currie v Misa (1875) it was held that consideration from the perspective of the law may consist of some right, benefit, interest or profit accruing to the party or some loss, sufferance, detriment, or responsibility incurred by the party.

Consideration must be distinguished from an outright gift and therefore it has to be either expressly or impliedly requested for by the promisor. In Dahlia v Four Millbank Nominees (1978) for example, the offeror requested for some form of consideration. If the plaintiff had taken it upon himself to arrange for a bank draft to be delivered to the defendant, without the defendant asking for it, then that might not have been deemed as consideration but might have instead been perceived as a gesture of goodwill.

Consideration must move from the offeree or from the promisee to the oferor or the promisor. In Tweddle v. Atkinson (1861) the parents of the bride and groom agreed to pay a certain sum to the groom upon his marriage to the bride. The bride’s father died before the payment could be made and the groom brought a claim against his estate. The court ruled that because consideration did not move from him, he was unable to claim i.e. a party who has not provided consideration for the promise cannot enforce the promise.

Past consideration is not good consideration. In Roscola v Thomas (1842) the seller of a horse made an assertion after the offer and acceptance had been concluded or after the agreement had passed, that the horse was free from vice. Following the sale, the buyer brought an action against the seller but his action was unsuccessful because the assertion was made after the sale was concluded.

In Eastwood v Kenyon (1840) the guardian of a young girl educated her on the promise that the young lady would repay the debt once she’d come of age. The young lady, once she’d come of age, did make some repayments but soon after married, following which, her husband promised to repay the loan on her behalf. The husband failed to do so and the guardian brought an action against him. It was held that while the husband had a moral obligation to honor his promise there was no legal obligation to do so.

In R v Clark (1927) (High Court of Australia) there was a reward for information given leading to the arrest of several murderers. Clark gave the information but at the time he did so he had forgotten about the reward that was offered. He later tried to claim the reward but was denied by a court because at the time that he had given the information he gave no thought to the reward

In Re McArdle (1951) the plaintiff had made some renovations and repairs to her father-in-law’s bungalow. The father-in-law had left the property first to his wife for life and subsequently on trust for her husband and his four siblings. The siblings later, once the work had been completed, promised to pay the plaintiff a certain amount for the work that had been done. The payment was not made and the plaintiff brought an action against the defendants but was unsuccessful because past consideration is not valid consideration or is no consideration.

Past consideration however is consideration or is regarded as good consideration when it is done at the request of the offeror or the promisor. In Lampleigh v Braithwaite (1615) the defendant had committed murder and was found guilty and sentenced to hang accordingly. The defendant asked the plaintiff to get him a pardon and the plaintiff was successful in doing so. The defendant then promised the plaintiff £100 for his efforts but later refused to pay. It was held that the plaintiff was entitled to his reward because the act was done at the request of the defendant.

Past consideration is also good consideration when there is an understanding between the parties that the act that is done is to be remunerated. In Re Casey Patent’s (1892) the plaintiff did some patenting work for the defendant and upon the completion of the work the defendant promised to give the plaintiff one-third of the share in the patents. The defendant later failed to comply and the plaintiff sued. The plaintiff was successful in his claim because the work was done on the understanding or the premise that the plaintiff would be given some form of remuneration or the other.

An act done before the giving of a promise to make a payment or to confer some other benefit could be consideration for the promise where

(i) the act was done at the promisor’s request,

(ii) the parties understood that the act was to be remunerated either by payment or the conferment of a benefit, and

(iii) the payment or conferment of benefit was legally enforceable.

Consideration however must not be something that is illegal. In Wyatt v Kreglinger and Fernau (1933) the plaintiff’s pension was dependent on him taking no further part in the wool trade. It was held that the stipulation was void because it was contrary to public interest.

Consideration must be sufficient but need not be adequate i.e. it does not need to correspond exactly or precisely, in monetary terms, to the offer or to what’s being offered but it must be in the form of monies or monies worth.

In Thomas v. Thomas (1842) a dying husband transferred the ownership of his seven houses to his brother but informed him prior to death, in front of two witnesses that, he wanted his wife to be permitted to live in one of those houses.

His brother Samuel complied with his wishes and after his death he allowed his brother’s wife (Eleanor) to stay in one of the houses and had a written agreement drawn up whereby his brother’s widow was to remain in the house on the conditions that she kept the house in good repair and paid a rent of £1 per annum. The agreement continued for some years until Samuel’s death whereby the executors refused to continue with the arrangement. It was held that the rent of £1 per annum was sufficient consideration and that Eleanor could continue to remain in the house.

In Chappell v. Nestlé (1960), Nestle ran a promotion whereby any person who sent in 3 wrappers and a postal order for 1s and 6d would be sent a record. Chappell a copyright owner in one of the records disputed Nestle’s offer and argued that the records would normally retail at 6s or more.

The matter before the courts was to decide if the wrappers formed part of the consideration and if they did there was no possible means to ascertain their value and Chappell would be successful in obtaining an injunction preventing Nestle from distributing the records. The court held that the wrappers were indeed part of the consideration and Chappell was successful in obtaining an injunction to stop Nestle from distributing the records.

Consideration however must have some economic value. In White v. Bluett (1853) the defendant owed his father some money but his father had promised him that he would write off the debt if his son stopped complaining as to how the property was distributed among the children.

Upon his death, the executor sued for the outstanding debt. It was held that not complaining was not sufficient consideration and the plaintiff was successful. Consideration must have some economic value i.e. it must be in the form of monies or monies worth.

The performance of an existing duty will not amount to consideration. In Collins v Godefrey (1831), the plaintiff had been subpoenaed for jury duty. While he didn’t actually go on duty, he was on standby for 6 days. He later brought an action against the defendant for expenses incurred. His claim failed. They court held that an existing public duty does not amount to consideration.

In instances of debts, the rule of thumb is that part payment will not amount to sufficient consideration. In Pinnel’s Case (1602) the defendant paid off part of his debt and hoped that he would be discharged. The plaintiff brought an action for the outstanding debt and was successful in his claim.

In Foakes v. Beer (1884) the defendant owed the plaintiff a certain amount of money and made an arrangement with the plaintiff to pay it off in installments but no mention was made of the interest. The defendant eventually paid off the full debt as promised but the plaintiff brought an action for the outstanding interest. Pinnel’s rule was applied and the plaintiff was successful.

A promise not to sue can also be sufficient consideration. In Alliance Bank Ltd v Broom (1864) the plaintiff, a bank, asked the defendant to provide some security for his overdraft. The defendant promised to do so but never provided the security and the plaintiff sued. The defendant argued that there was no consideration for his promise to provide security but the courts held that the bank’s implied promise not to sue should the defendant provide the appropriate or relevant security was consideration enough.

In Miles v New Zealand Alford Estate Co (1886) however, the plaintiffs purchased some land from the defendant and they were unhappy with their purchase and they informed the defendant of this. The defendant promised to make amends by making certain payments but failed to do so. The plaintiffs brought the matter before a court and argued that they had provided adequate consideration by not suing but the court found in favor of the defendant and found that not suing was not sufficient consideration in this particular instance.

If anything, the plaintiff should have at the very least inspected the land or asked for the advice of someone knowledgeable in the area prior to making the purchase.

If the party had done more than what was required or expected of him in the contract than that would be deemed to be sufficient consideration.

In Hartley v Ponsonby (1857) half the crew in a ship deserted while the ship was sailing to Mumbai. The captain of the ship promised the remainder of the crew extra wages should they be willing to carry on. The remainder of the crew agreed and upon reaching Mumbai the captain of the ship refused the crew the additional wages. The plaintiff sued.

It was held that by agreeing to take on the additional duties, the plaintiff had taken on duties that were not in his contract and was thus entitled to the extra wages.

In the earlier case of Stilk v Myrick (1809) however two sailors abandoned ship during a voyage and the captain of the ship promised the rest of the crew additional wages should the remainder of the crew take on their duties and help the ship complete its journey. Once the journey was completed the captain did not pay the additional wages and the plaintiff brought an action in court.

It was held that the plaintiff was not entitled to the additional wages because he had merely done what he was contracted to do i.e. complete the journey.

Hartley v Ponsonby (1857) can be distinguished from Stilk v Myrick (1809) in that, in the former the number of persons that had deserted the ship were so substantial that it would have jeopardized the entire voyage and in the latter the number of persons that had deserted the ship were so small that the additional duties may have been minimal.

In Glasbrook Brothers v Glarmorgan County Council (1925) the defendants owned a colliery and requested for protection from the police during a strike. Once the strike was over the police submitted a bill for the work that they had put in. The defendants refused to pay and an action was brought against the defendants. The plaintiffs were successful because in providing the additional resources that was required the police had gone over and above their duty.

If one party promises additional payments to complete an existing duty, than it would be deemed to be sufficient consideration, unless it is tainted with illegality.

In William v Roffey (1990) the plaintiff was a sub contractor who ran into financial difficulties while performing his duties under a contract and as a result didn’t look likely to complete his duties, which in turn would have resulted in a loss of income for the defendants.

The defendants in order to keep the plaintiff afloat promised an additional payment because the initial payment was too low and further amended the working conditions to accommodate the new promise. The plaintiff agreed and completed his duties but the defendants refused to make the additional payments.

It was held that the plaintiff was entitled to the additional payment because it allowed the defendants to complete the duties they were required to perform under a contract and as a result the defendants were remunerated accordingly.

With regards to third parties, when a party to a contract promises to provide a service or perform a duty, which it is already bound to do under an existing contact; the party can still receive or derive some form of remuneration from a third party.

In Shadwell v Shadwell (1860) the plaintiff was engaged to be married when his uncle wrote to him promising him £150 a year, until he was earning a specified sum from his practice. The plaintiff duly got married but he never reached the stipulated amount of earnings. The amount was not paid regularly and upon his uncle’s death the plaintiff sued for the arrears.

The court held that the plaintiff was entitled to the arrears because he had acted to his detriment by getting married, despite the fact that he was already engaged at the time of the agreement, and that he had incurred additional expenses by doing so.

In Scotson v Pegg (1861) the plaintiff brought and action against the defendant for failing to unload the coal that he had delivered. The plaintiff was in actual fact contracted to another party to deliver coal to any person that the contracting party nominated.

The defendant argued that he was not liable because the plaintiff was already contracted to deliver the coal to him under the terms of an existing contract.

The plaintiff was successful in his claim and it was held that the plaintiff had acted to his detriment by delivering the coal and the defendant benefitted from it regardless of the fact that the plaintiff was already obligated to do so under the terms of an existing contract.

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Elements in a Contract IV – Acceptance

An acceptance is an unconditional willingness to be bound by the terms of an offer. The acceptance can be in terms of performing an act, say for example painting a house for remuneration or abstaining from smoking for a reward, as in instances of unilateral contracts.

An acceptance can also be inferred or implied by conduct as in the case of Carlill v Carbolic Smoke Ball Co (1893) or without the formalization of an existing agreement as in the case of Brogden v Metropolitan Rly Co. (1877).

As a general rule an acceptance must be communicated to the offeror. There are however certain exceptions for example when the performance of an act constitutes an acceptance like in the case of Carlill v Carbolic Smoke Ball Co (1893).

When it comes to communications by post, it is deemed that the offeror is given sufficient notice of the acceptance as soon as the letter of acceptance is posted. In Adams v Lindsell (1818), the defendant wrote to the plaintiff offering to sell wool. The defendant misdirected the letter and there was a delay in the letter reaching the plaintiff. The defendant thinking that the plaintiff was no longer interested sold the wool to someone else. The plaintiff sued for a breach of contact.

The plaintiff was successful. In instances of posting the acceptance, the acceptance is deemed to have taken place as soon as the letter is posted. This rule is known as the postal rule and it is an exception to the requirement that, acceptance must be communicated to the offeror, though it might place the offeror at a disadvantage.

The postal rule applies even if the letter of acceptance is delayed or lost in the post. In Household Fire and Carriage Accident Insurance Co. v Grant (1879), Mr. Grant offered to buy shares in Household Fire and Carriage Accident Insurance. The company accepted the offer and allotted him the respective shares and sent him a letter informing him of this. The letter was lost in the post and Mr. Grant was not notified of the acceptance. In the meantime, Mr. Grant’s dividends were credited to his account.

Household Fire and Carriage Accident Insurance subsequently went bankrupt and the liquidators requested that the Mr. Grant make the outstanding payments on his shares. Mr. Grant refused.

It was held that there was a valid contract in place. The post office is such a common agent that as soon as the letter of acceptance makes it to the post office, the contract is concluded. It is as good as a messenger putting the letter of acceptance in the hands of the offeror.

The postal rule however does not apply if it was not reasonable to use the post as a means of communication as in instances where the offeror clearly stipulates that he must be notified in writing.

In Holwell Securities Ltd v Hughes (1974) the defendant offered to sell the plaintiff his house and the option was exercisable by a notice in writing to the defendant within 6 months of the offer being made. 5 days prior to the completion of the 6 months, the plaintiff sent a letter to the defendant communicating his acceptance but the letter never arrived.

The Court of Appeal decided that the offer which clearly stipulated that the defendant must be notified in writing could not be accepted by merely posting a letter. As a general rule if the offeror stipulates that an offer can only be accepted in a specific manner than the offer can only be accepted in the manner stipulated by the offeror.

If an acceptance takes place via an electronic medium say for example fax or e-mail, it will take place at the time it is received. In Entores Ltd v Miles Far East Corp (1955) – A telex was sent from England to Holland offering to purchase a certain quantity of cathodes. The office in Holland sent a telex back accepting the offer. The question before the courts was where did the acceptance take place? If the acceptance took place at the time the telex was sent it would be in Holland and if the acceptance took place at the time it was received it would be in England.

It was held that when an acceptance is communicated via electronic means, acceptance takes place or occurs when it is brought to the attention of the offeror i.e. it took place in England.

Silence however does not constitute acceptance and neither can the offeror stipulate otherwise. In Felthouse v Bindley (1862) a man wrote to his nephew informing him of his intention to purchase his nephew’s horse. He further stated that if he hears no more about the horse he’ll considered that the horse is his. The nephew did not reply to his uncle but he did instruct the auctioneer not to sell his horse along with his other farming stock. The auctioneer forgot and sold the horse.

The court held that despite the fact that the nephew may have intended to sell the horse to his uncle by instructing the auctioneer not to sell the horse along with his other farming stock, his intention was never communicated to his uncle and therefore there was no contract. As a general rule silence, does not constitute the acceptance of an offer.

The offer must be accepted on its original terms and any attempt to vary the terms of the offer will be viewed as a counter-offer and as a rejection of the original offer. In Hyde v Wrench (1840) the defendant wrote to the plaintiff offering to sell his farm for a £1,000 to which the plaintiff replied that he was willing to buy it for £950.

The defendant refused to sell the property for £950 and a few days later the plaintiff wrote to the defendant stating that he was willing to purchase the property for £1,000. It was held that the plaintiff’s counter offer was a rejection of the defendant’s offer and that the original offer could not be revived.

In Northland Airliners Ltd v Dennis Ferranti Meters Ltd (1970) the seller negotiated with the buyer for the sale of an aircraft. The seller then sent a telegram stating that the sale was confirmed and asked the buyer to remit the specified amount. The buyer remitted the said amount, with the condition that it was to be held in trust until the delivery of the aircraft and added that the delivery was to be made by a third party and within a specific date. The seller did not reply but sold the aircraft to another buyer for a higher price. The Court of Appeal held that there was no contract between the parties. The buyer’s reply introduced two new terms with regards to payment and delivery.

A counter-offer however must be distinguished from a mere request for additional information. In Stevenson, Jacques & Co. v McLean (1880) the defendant wrote to the plaintiff offering to sell a specific quantity of iron, cash, and left the offer open until Monday. On Monday morning, the plaintiff wrote to the defendant asking if the defendant would accept delivery over 2 months or otherwise the longest time permissible. The defendant did not reply but sold the iron instead to a third party.

The plaintiff not having heard from the defendant, later on the same day sent a telegram stating that he’d accepted the defendant’s offer. It was held that there was a valid contract in place because the plaintiff’s initial telegram did not amount to a counter proposal and that it was a mere inquiry.

An offer cannot be withdrawn after it is accepted but it can be withdrawn at any time prior to the acceptance. In Payne and Cave (1789) the defendant made an offer at an auction but withdrew his offer prior to fall of the auctioneer’s hammer. It was held that the defendant was free to withdraw his offer any time prior to the fall of the hammer.

Items at an auction are invitations to treat and it is up to any interested party to step up and make an offer which the auctioneer can either accept or reject.

In Routledge v Grant (1828) the defendant offered to take up a lease on the plaintiff’s premises and gave the plaintiff 6 weeks to make up his mind. 3 weeks later the defendant withdrew his offer and the plaintiff sued for a breach of contract. It was held that there was no breach of contract and that the defendant was free to withdraw his offer i.e. either party could either withdraw or reject the offer within the 6 weeks.

An exception to the rule that an offer may be withdrawn at any time prior to acceptance occurs when the plaintiff provides some form of consideration to keep the offer open for a fixed or specific period of time.

In Dahlia v Four Millbank Nominees (1978) the plaintiff had agreed to purchase some property from the defendant and the defendant agreed to keep the option open if the plaintiff arranged for a bank draft to be delivered to the defendant within a certain time and date. The plaintiff complied with the defendant’s request but the defendant refused to proceed with the sale.

It was held that there was a contract in place and that the acceptance was similar to an acceptance in a unilateral contract. Once the offeree has started performing the act, the offeror must not stop or prevent the condition or the stipulation from being satisfied.

The withdrawal of an offer must be communicated to the offeree. In Byrne v. Van Tienhoven (1880) the defendant mailed an offer to the plaintiff to sell tin pin plates. Approximately a week later he wrote to the plaintiff revoking the offer. The plaintiff accepted the offer as soon as the letter arrived and telegrammed his acceptance to the defendant.

Subsequent to that the plaintiff received the letter of revocation and sued for a breach of contract. It was held that there was a contract in place and the contract came into existence as soon as the plaintiff sent his telegram. The postal rule was applied

The withdrawal however does not have to be communicated in person. In Dickinson v Dodds (1876) the plaintiff was given an option to purchase some land from the defendant and the defendant stated that the option would remain open for 2 days. The defendant however sold the land to someone else the next day and the plaintiff came to know of it the same day. The plaintiff then decided to take up the offer, after coming to know that the land had been sold. It was held that there was no contract in place and it was clear that the defendant did not intend to sell the plaintiff the property – it was as obvious as if the defendant had told the plaintiff so himself.

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Elements in a Contract III – Offer (II)

An offer is best described as a willingness to be bound by the terms of a contract, once it has been accepted. It can either be expressed verbally or in writing or it may be implied.

In Brogden v Metropolitan Rly Co. (1877), Brogden had supplied the Metropolitan Rly Co. for years without a formal agreement. The parties then intended to formalize the arrangement and the Metropolitan Rly Co. sent Brogden a draft. Brogden completed the draft, filled in some of the details that had been left out including the name of the arbitrator and sent it back. The draft was handed to a manager and no further action was taken and the parties continued as per normal until a dispute arose. Brogden argued that there was no contract in place between the parties.

It was held that the fact that the parties continued to deal as per normal after the draft had been returned with the changes, indicated that there was a willingness to continue with the arrangement. The fact that both parties continued with their obligations as agreed constituted a contact.

In Storer v Manchester City Council (1974) – The city council wrote to a sitting tenant (a sitting tenant is a tenant who is already occupying a property and has a legal right to stay on the premises) asking him if he wished to purchase the property he was residing in and if so to sign and return the council’s standard form agreement, which the tenant did.

Soon after a new council took over and did not wish to proceed with the agreement and put forward the argument that the agreement had not been signed on the council’s behalf. It was held that the council had made a valid offer and its acceptance constituted a contract, despite the fact that, it was not signed by the council’s representative.

Storer however has to be read in light of Gibson v Manchester City Council (1979). The Manchester City Council advertised details of a scheme for tenants to buy their council houses. The plaintiff wrote to the council and the council accordingly replied with a price and certain terms. The house was then taken off the list of tenant-occupied houses maintained by the council and put on the house purchase list. A local election ensued and the new council reversed the policies of the former council and the sale did not go through. Gibson sued.

The Court of Appeal held that despite the fact that all the formalities had not been concluded, there was a clear intention to contract based on the transaction or what had transpired as a whole and found in favor of the plaintiff.

The council appealed. The House of Lords held that the fact that the council stated the price of the house and some other terms did not mean that there was an offer. It was merely a step in the negotiation process and the negotiations had not yet ripened into a contract.

An offer can be addressed to a specific person or to the world at large. Let’s look at an example. Mr. Smith wants to sell his car and in the past his neighbor Mr. Jones had indicated that should Mr. Smith ever wish to sell his car, he’d be happy to purchase it.

Mr. Smith informs Mr. Jones of his intention to sell his car and names a price. Mr. Jones accepts and hands him the specified amount, in return for which, Mr. Jones receives the car. The contract that ensues following the negotiations is a bilateral contract made between two parties.

Now let’s say for example that Smith Industries have concocted a remedy that will cure the common cold and confident of their new product they place an advertisement in the local daily stating that they are willing to pay £100 to anyone who catches a cold after using their product for two weeks in the prescribed or stipulated manner.

Let us say that half the residents of Slone Country, purchased the product and all of them despite having used the remedy concocted by Smith Industries, in the prescribed manner, ended up with a cold after using their product for two weeks. Smith Industries is only required to pay the aggrieved residents £100 each if there was a contract in place.

In Carlill v Carbolic Smoke Ball Co. (1893), the defendant placed an advert in the newspaper stating that the Smoke Ball Co. would pay anyone £100 if they caught influenza after using their smoke balls in the prescribed manner for two weeks. In order to show their sincerity, the Smoke Ball Co. had deposited £1000 in their bank account.

The plaintiff used the smoke balls in the prescribed manner and after two weeks, she caught influenza. The plaintiff sued.

The defendant argued that is was not possible to make an offer to the world at large. It was held that it is in fact quite possible to make an offer to the world at large.

An offer is an expression of a willingness to enter into a contract in accordance with the specified terms, and the Smoke Ball Co. depositing £1000 in their bank account indicated their willingness to be bound by the terms. Mrs. Carlill in purchasing the smoke balls and using them in the manner that had been prescribed had accepted the offer.

An offer may be made orally, in writing or it may be implied by conduct and acceptance need not always be conveyed. It suffices that the offeree acted in the prescribed and stipulated manner.

In Carlill v Carbolic Smoke Ball Co. (1893), the court rejected the argument that the plaintiff did not convey her acceptance. The fact that she had purchased the smoke balls and used them as instructed, in the prescribed manner, was sufficient to constitute an acceptance.

Ticketing and vending machines are modern mechanisms used to convey an offer. In Thornton v Shoe Lane Parking Ltd. (1971) the defendant was injured in a carpark after he had purchased a ticket from the ticketing machine and had driven his vehicle into the parking area. There were signs posted on the walls after he had passed the barrier that the company was not liable for any personal injuries incurred while in the parking area.

It was held that tickets in ticketing machines and items in vending machines are in fact offers and therefore the contract comes into existence as soon as the offeree accepts the offer by providing consideration i.e. slotting in the coins. The exemption clauses or the clauses attempting to exempt liability for personal injury were not valid because the said clauses were brought to the attention of the offeree after the contract had come into existence.

Copyright © 2017 by Dyarne Ward

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Elements in a Contract II – Offer (I) – Invitation to Treat

Not all items on display equate or translate to an offer for sale and it is essential that we understand what constitutes an offer for sale and what doesn’t. The distinction becomes especially important with regards and reference to controlled items, or items the sale of which are often regulated by statute (an act of parliament).

These items among others things include cigarettes, medicines or medications and offensive weapons. In most cases or instances when we walk into a supermarket, we find that cigarettes for example are kept away and separated from the other items that are on sale and are only displayed at the counter, behind a glass window, in the presence of a cashier and more often than not there is a warning that is plainly visible at the counter which reads “it is an offence to sell cigarettes or tobacco to anyone below the age of 18”.

Now if the cigarettes on display were indeed an offer, anyone, regardless of age should be able to walk up to the counter and purchase them. In cases of items displayed at the counter, behind glass windows however, the polite lady at the counter is well within her rights to ask for some form of id prior to commencing with the sale or prior to initiating the contract and should the id not be forthcoming or if she is suspicious or uncertain about the would-be purchaser’s age, she can refuse to sell the item to the prospective purchaser.

Therefore, we can surmise that the cigarettes at the counter are not items that fall within the general category of items on offer but rather are items that are sold under supervision. Therefore, if these items do not constitute an offer, what do they constitute?

These items constitute an “invitation to treat” i.e. an intending purchaser is allowed to make the relevant inquiries with regards to purchasing the item but the seller reserves the right to sell. It implies that there is a condition precedent (a prior condition or requirement) that has to be satisfied before commencing with the sale and that the offer is based on first acquiring the consent of the seller to sell.

A condition precedent is an event that must occur prior to the contract coming into existence, for example, when it comes to cigarette purchases, the prospective purchaser or would be purchaser must satisfy the condition or stipulation that he or she is above 18.

Let’s look at another example, let’s say that a well intending merchant, displays in his shop window, for the purposes of benefitting connoisseurs and collectors of such items, certain types of offensive weapons, including flick knives, the sales of which are regulated by s1 of the Restriction of Offensive Weapons Act 1959, which reads as follows: –

(1) Any person who manufactures, sells or hires or offers for sale or hire, (or exposes or has in his possession for the purpose of sale or hire) or lends or gives to any other person –

(a) any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a “flick knife” or “flick gun”; or

(b) any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force and which, when released, is locked in place by means of a button, spring, lever, or other device, sometimes known as a “gravity knife”,

shall be guilty of an offence and shall be liable on summary conviction in the case of a first offence to imprisonment for a term not exceeding three months or to a fine not exceeding (fifty pounds) (level 4 on the standard scale) or to both such imprisonment and fine, and in the case of a second or subsequent offence to imprisonment for a term not exceeding six months or to a fine not exceeding (two hundred pounds) (level 4 on the standard scale) or to both such imprisonment and fine.

(2) The importation of any such knife as is described in the foregoing subsection is hereby prohibited.

In Fisher v Bell (1961) – the respondent was the owner of a shop and had displayed in his shop window knives with tags attached that read “ejector knife”. A policeman entered the shop to examine the weapon and took it back to the station for further investigation. The chief inspector of police, convinced that it was indeed a flick knife charged the owner of the shop.

The matter before the courts was to decide if the display at the shop window constituted an offer for sale or an invitation to treat. “It is clear that, according to the ordinary law of contract, the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract”.

It was held that the items on display behind shop windows or glass windows were merely invitations to treat. Another example of such items, in addition to that given above would be strong alcoholic beverages

Let’s now briefly turn our attention to the pharmaceutical sector. Let’s say for example a new player has entered the market and has opted, to safe costs, to display pharmaceutical drugs on shelves like items at a normal supermarket, so that any person can select the item(s) that he or she wants and take it to the counter, where a registered pharmacist is on duty, and who will inspect the item(s), to ensure that they correspond with the prescription that is on hand, prior to selling the item(s).

The sale of pharmaceutical items is governed by s. 18 of the Pharmacy and Poisons Act 1933. The sale has to be conducted in a lawful retail pharmacy i.e. a premise that has complied with all the legalities to retail pharmaceutical products, the sale has to be effected on the premises which is a registered pharmacy and the sale has to be conducted under the supervision of a pharmacist.

In Pharmaceutical Society of Great Britain v Boots (1953) Boots Chemists introduced a new self-service system, similar to that in supermarkets, whereby customers could pick the items that they required off the shelves and proceed to the counter to pay. A registered pharmacist was stationed at the counter.

The Pharmaceutical Society brought an action to determine the validity of the new system. It was held that the goods on display were invitations to treat because the items could only be sold with the approval of a pharmacist who incidentally was stationed at the counter.

Now let’s look at another mode of sales through which business is conducted, newspaper advertisements. Let us say for example Mr. Smith took out an advertisement in the local paper to let the residents of Slone County know that he had in his possession certain rare birds and chicks, without using the words “offer for sale”.

Under s. 1 of the Protection of Birds Act 1954 it is an offence, with the exception of those holding a license granted under section 10 of the Act, for any person to sell, to offer for sale or to have in his possession for sale, various species of wild birds.

A Mr. Fritz who has read the advertisement sends Mr. Smith a cheque for a certain amount of money in the hope that Mr. Smith will sell him a hen and his prayers are answered when he wakes up one morning, a week later, and finds the hen that he had hoped for at his doorstep. Is Mr. Smith’s advertisement an offer on an invitation to treat?

Well it’s the latter because Mr. Smith is not obliged to sell to Mr. Fritz and if anything it’s up to Mr. Fritz to step up and make an offer which Mr. Smith can either accept or reject. Therefore, it is an invitation to treat.

In Partridge v Crittenden (1968) Mr. Partridge took out an advertisement stating that he had either in his possession or access to, Bramblefinch cocks and Bramblefinch hens, without using the words offer for sale. Mr. Crittenden upon reading the advertisement sent Mr. Partridge a cheque and Mr. Partridge in turn sent him a hen. Mr. Crittenden on behalf of the RSPCA brought the matter to the attention of the courts.

The matter before the courts was to decide whether the advertisement was an offer for sale or if it was an invitation to treat. It was decided that the advertisement was an invitation to treat and therefore Mr. Partridge was not guilty (s. 1 of the Protection of Birds Act 1954 only applies to those who offer for sale, rare birds and not those who do not or have a license to do so).

In Grainger & Son v Gough (1896) a wine merchant distributed a catalogue listing the wines he had for sale. If the wines in the catalogue we indeed offers for sale, the acceptance of which would constitute a contract, then the wine merchant would be contracted to the first person that steps up an accepts his offer.

It was held that items listed in catalogues are invitations to treat. Sellers of goods are free to advertise their goods in order to attract potential purchasers.

Similarly, items advertised for sale at an auction are also not offers for sale. In Harris v Nickerson (1873) the defendant had advertisement certain items for sale at an auction and the plaintiff turned up hoping to purchase the items. The items were not auctioned as per the advertisement and the plaintiff sued for damages.

It was held that items that were advertised were merely invitations to treat and may be withdrawn at any time.

In Payne v Cave (1789) the defendant had made the highest bid at an auction but withdrew his bid prior to the fall of the hammer. The plaintiff sued. It was held that goods at an auction were invitations to treat and the defendant’s bid is an offer which he can revoke at any time prior to acceptance.

Acceptance at an auction is indicated by the fall of the auctioneer’s hammer and therefore the defendant was free to withdraw his bid at any time prior to the fall of the auctioneer’s hammer.

This common-law rule was later codified by s57(2) of the Sale of Goods Act 1979 which states that the sale of goods at an auction is only complete when an auctioneer announces its completion by the fall of the hammer.

It is common especially among those who have acquired the habit of reading the newspapers, to come across invitations to bid (tenders) i.e. a general invitation inviting others to submit a proposal to either purchase goods, shares or even to offer their services.

Are these invitations to bid (tenders), offers, the acceptance of which would constitute a contract or are they an invitation to treat in which case the party that placed the advertisement is free to either accept or reject the proposal it has received? It would certainly be most unfair to expect any party that advertises to be bound by the first proposal that it receives. In Harvela Investments Ltd v Royal Trust of Canada (CI) Ltd. It was held that general tenders are an invitation to treat.

It is normal practice, prior to entering into a contract to negotiate the terms of a contract. Let us say for example that Mr. Coombes wants to sell his property (Blue Orchards) and places an advertisement in the local daily.

A resident of Slone County, a Mr. Dexter, reads the advertisement and sends Mr. Coombes a telegram which reads, “will you sell us the property, Blue Orchards? Telegraph lowest price”.

Mr. Coombes replies with a telegraph of his own which reads as follows: – “lowest price for Blue Orchards is £9 million”. Mr. Dexter then responds to Mr. Coombes telegraph by sending another telegraph stating that “we accept to buy Blue Orchards for £9 million”. Is Mr. Coombes telegraph stating the lowest price for Blue Orchards, an offer or an invitation to treat?

In Harvey v Facey (1893) the plaintiff telegraphed the defendant asking “will your sell us Bumper Hall Pen?”. “Telegraph lowest price for Bumper Hall Pen”. The defendant replied “lowest price for Bumper Hall Pen £900”. The plaintiff then sent the defendant another telegraph stating that he accepted and requested that the defendant send him the title deed.

The Privy Council held that the defendant was merely supplying information i.e. it was an invitation to treat and not an offer.

In all the above cases and instances, there is an inference that there is a presumption to sell and it is up to the defendants/respondents to rebut the presumption, and establish that there isn’t an intention to sell or an offer for sale but a mere invitation to treat. The defendants/respondents in all the above cases have successfully done so.

Copyright © 2017 by Dyarne Ward

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Elements in a Contract I

When we refer to a contract, we are often confronted, mentally at least, with images of stacks and stacks of papers that are filled with pages of paragraphs, written in a manner that is often confusing to most readers. A majority of contracts however are far simpler instruments, that most of us come across on a daily basis, often without realizing it and therefore it is only fitting that we acquire some knowledge of it.

Contracts can be divided into unilateral contracts and bilateral contracts. In instances of unilateral contacts, the offeror (the person who makes the offer) makes an offer in exchange for a performance of an act or provides monetary rewards when the offeree (the person who accepts the offer) abstains or refrains from doing a certain act.

An example of a unilateral contract occurs when an offeror says to the offeree that “I’ll give you a hundred pounds for painting my house” (contracts can either be oral or written). Likewise, a unilateral contract also occurs when someone says to another person “I’ll give you a hundred pounds if you stop smoking”. In both instances the offeree is entitled to the remuneration or the reward he has been promised as soon as he complies with the conditions or stipulations set by the offeror.

A bilateral contract occurs when promises are mutually exchanged. A man goes over to a newsstand and purchases the local daily. He pays the vendor for a copy of the local daily and he in turn receives a copy of the local daily. The exchange that occurs is an example of a bilateral contract. Bilateral contracts are commonly used in business especially with regards to the sale of goods.

Let’s look at a simple day to day example of a bilateral contract. A man enters a supermarket and after spending a minute or so walking down the aisles looking at the various products that are neatly stacked on the shelves to his left and to his right, he picks out a can of baked beans. He looks at the label, which according to law must fulfill certain criteria, and reads what’s written on it.

Because the buyer is not able to look at the contents of the can, prior to making the purchase, reasonable steps must be taken to ensure that he is made aware of what he is purchasing and therefore the label must satisfy certain requirements.

The label must be clear and easy to read, it must be permanent i.e. affixed to the can in a manner that it cannot be easily removed, it must be easy to comprehend or understand and it must not be misleading i.e. the description on the label must correspond with the content in the can.

Information on the label includes the type of food or the name of the food that’s in the can, the best before date or the expiry date, any necessary warnings, quantity information (weight), a list of ingredients, the name and address of the packer or seller, the lot number, any special storage conditions and any instructions for cooking, if necessary.

Now the man having read the label is satisfied that that is the can of baked beans that he wants or requires and takes it to the counter to pay the cashier and to conclude the purchase. On most occasions, if a person purchases an item without reading the label on it, he or she is deemed to have read the label.

He stands in line and waits for his turn. When his turn arrives, he hands the can of baked beans to the polite lady at the counter who scans the barcodes printed on the label with a scanner that is attached to her terminal and the information is entered into the terminal and the price pops up on a little screen, on the small window on the till, and is visible to him.

The man looks at the numbers on the screen, fishes out his wallet from his pocket and pays the polite lady at the counter the exact amount that is required. The lady takes the money and hands him a receipt or a proof of purchase which normally contains the following information: – the date the item was purchased on, the type of item, the quantity and the amount that was paid as consideration for the item. In some cases, or instances the details of the sales person who assisted with the purchase is also on the receipt or the proof of purchase.

The man takes the receipt or the proof of purchase, puts it in his pocket and picks up the can of baked beans that he had just purchased and heads for home. This is now a valid contract in that the seller has sold an item as per the descriptions on the label and the buyer has purchased the item as per the descriptions on the label and interestingly enough during the whole transaction neither party has actually looked at the contents of the can.

A contract contains five essential elements or ingredients. They are as follows: –

(i) offer

(ii) acceptance

(iii) consideration

(Iv) intention or an intention to create a legal obligation

(v) form

An offer is made when the seller (offeror) makes an offer to sell and stacking the items on a shelf that is easily accessible to everyone that walks into the store, clearly indicates that the items on display are for sale.

The buyer (offeree) accepts by picking out the product of his choice and by taking it to the counter, after reading the label, and consideration for the item he has purchased changes hands when he hands over the money or the amount that is required for the purchase of the item.

Consideration is always in monies or monies worth and the whole transaction is done with the intention to create a legally binding obligation in that should the buyer return home and discover, when he opens the can, that in contains corn instead of beans, he can return the item to the seller and be reimbursed accordingly. The form of the contract is written as evidenced by the receipt or the proof of purchase.

We have to keep in mind that in order for there to be a contract there must be one exchange of a promise with another or one party must have acted to his or her detriment based on a promise. In the example given above, the can of baked beans was exchanged for money i.e. there was a mutual exchange.

In the instances of the unilateral contacts, the offeree acted to his or her detriment by either painting the house or refraining from smoking and therefore should be remunerated or rewarded accordingly.

Not all agreements however mature into contracts. In Re Hudson (1885) Hudson promised to pay £4,000 per year to a chapel, for 5 years, to help it pay off its debt. He died before the last 2 installments could be made and his estate refused to pay the outstanding installments. It was held that a contract had not come into existence and that there was only a gratuitous promise in place. As a result Hudson’s estate could discontinue the payments if they so desired.

It is also important to distinguish between a commercial agreement and a purely social agreement. While the former creates, a legal obligation governed by the law of contract, the latter does not. In Balfour v Balfour (1919), the husband while working overseas agreed to send regular payments to his wife. Subsequently the relationship went downhill and the husband stopped sending his wife money. Mrs. Balfour brought an action against her husband and it was held that the agreement that was in place was a purely social agreement and that it didn’t amount to a contract.

Copyright © 2017 by Dyarne Ward

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The Shaman’s Near Death Experience

When we look at many of the ancient shamanic cultures of yesteryear, be it the Altai Shaman, the Siberian Shaman, the Tungus Shaman, the Tamang Shaman or the Yakut Shaman, there is one prerequisite that the prospective shaman or the shaman to be must satisfy in order to gain his or her shamanic abilities and that is to undergo the near-death experience. The near-death experience from all accounts can occur as the result of a natural illness or as a result of an induced illness that reduces the prospective shaman to the near-death state.

Before we go further it would be appropriate to define or give a definition to the word shaman though they sometimes act as healers or medicine men or women, shamans are not always necessarily healers.

Shamans in short are those among us who have the ability to see and communicate with spirits and it is with the help of these spirits that shamans are able to concoct remedies and foretell the future or remove hexes and maledictions.

Therefore, anyone who is able to see and communicate with spirits though that is not always necessarily the case, may if he or she chooses to, become a shaman.

The shaman or the prospective shaman acquires the ability to see and commune with spirits by undergoing the near death experience, though it is not the only way a person can see or communicate with spirits, some albeit rarely are born with the ability to see spirits while others who are old and have come to terms with death or are ready to move to the next stage also sometimes gain the ability to see spirits but the designation of shaman only belongs to those who use their ability to see and communicate with spirits to help others and that may be to cure an illness or to cause someone an illness i.e. it works both ways and hence the classification of white and black magic.

In Bhutan for example, the shaman plays a prominent role in deciding the outcome of the simplest things and even the outcome of a local football match is dependent, as far as general perceptions go, on the team that has the stronger shaman on its side.

Even today, despite the advent of modern technology and things like smart phones, there are people who still resort to shamans to achieve a specific outcome, and the shaman normally charges according to the help that is required.

To some extent it is an interesting field of study but one that requires some fortitude and it is most suited to those who have come to terms with death. To borrow a phrase from the Tibetan Book of Death or the Bardo Thodol “death is inevitable” i.e. it is something that we all have to accept.

The book itself was scripted by the Indian Prince turned monk Padmasambhava and it is in essence more tantric in content. According to the Tibetan Book of Death or even the Egyptian Book of the Dead for the matter, the spirit remains in the mortal world for a certain number of days before it takes on a new life (rebirth) or crosses over.

Both these ancient texts tell us that even if the body dies the spirit remains and these are the spirits that shamans come in contact with. Shamanism however goes a step further than that and implies that spirits can refuse to take on a new birth after the 49 days as stipulated in the Bardo Thodol or move on to the next life or the afterlife.

From what we can gather from those that have undergone the near-death experience, the prospective shaman comes close to death and at the time he or she is about to die, the spirit leaves the body and that departure from the body is very much like ascending a tree, hence the term “the shaman tree”, and as the prospective shaman’s spirit ascends the shaman tree, he or she comes in contact with other spirits.

According to some sources the spirit that the prospective shaman’s spirit comes in contact with sits on the highest limbs of the tree while other sources are more vague, but all sources agree that is during this journey that the prospective shaman comes in contact with the spirit that later aids him or her once the prospective shaman becomes a fully-fledged shaman.

Once the prospective shaman has gained sight of the other spirit and returns to his or her body and is nursed back to health, if the spirit of the prospective shaman does not return it simply means that the prospective shaman never recovers or has died, the prospective shaman now is on his or her way to becoming a fully-fledged shaman.

The new shaman continues to see the spirit he or she came in contact with during the near-death experience whereas others around the shaman cannot and in time begins to communicate with the spirit which becomes the source of the shaman’s powers or abilities.

Copyright © 2017 by Dyarne Ward

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The Mautam Famine

The mautam famine is a famine unlike others and it is not caused by changes in the climate or the weather and neither is it the result of war or other acts precipitated by human hands but rather a famine that occurs every 48 years and the sole cause of the famine is a sudden boom in the rat population which leads to crop destruction and brings with it other sicknesses and illnesses related to rats.

Rat infestation is rampant during the famine and it occurs primarily in the northeastern Indian state of Mizoram, previously a territory of Assam which later in 1972 became a union territory and was recognized as a separate state in 1987 by prime minister Rajiv Gandhi after the Mizo National Front (MNF) leader, Pu Laldenga, met with the prime minister to seek a resolution to the long standing conflict between New Delhi and Mizoram – a conflict which to a large extent was precipitated by the mautam famine of 1959.

One of the demands of the MNF was for Mizoram to be conferred the status of a state to which the prime minister agreed. Observers called it one of Rajiv Gandhi’s best political moves and it guaranteed peace in Mizoram.

In 1959 the mautam famine struck Mizoram and it was the first time it had happened since independence but from all indications it would have happened 48 years prior but very little records of that famine are available because at the time, Mizoram was a territory of Assam or as it was more formally known colonial Assam and it is difficult to say what transpired then. Assam was under British rule from 1826 – 1947.

The word mautam itself means bamboo death, the word mau means bamboo and the word tam means death and the unrest in Mizoram was exacerbated or aggravated by the famine. It was however not the sole or the only cause of the unrest because the Mizos at the same time were pushing for a separate identity that was distinct from Assam.

Tribal conflicts were frequent in the past but somehow the seven sister states have managed to work around that and even if they are not united in ethnicity they appear to be united in faith and the Christian faith has done a lot to foster greater unity among the different tribes.

In 1960 the Mizo Cultural Society which was formed five years earlier, if anything as a pressure group to further Mizo rights, changed its name to the Mautam Front or the Mautam Famine Front and swung into action not only to aid and assist with relief work but to also demand for more supplies to be sent to affected or impacted areas and thereafter remodeled itself to become a political party with some clout, backed if need be by armed combatants.

Following its inception as a proper political party and in the aftermath of the 1959 famine, there were riots and protests in various parts of Mizoram and the conflict dragged on until Mizoram received recognition as a separate state.

The northeastern sector of the subcontinent had been volatile for some time but the softer approach that New Delhi adopted after Rajiv Gandhi’s installation as prime minister appeared to be working and once both parties to the conflict backed away from their hardline stance, long-term peace became a possibility.

They were two very different personalities, Rajiv Gandhi and Pu Laldenga, the former was a member of one of the most politically influential families in the country and Cambridge educated while the latter started his career as a sergeant in the army and was later employed as an accounts clerk by the government of Assam before he went on to be the first Chief Minister of Mizoram.

I have not doubts that both of them wanted what was best for Mizoram and over the years I’ve come to appreciate the softer approach more than the non-compromising attitude that really doesn’t work all that well in the subcontinent, not when there are at least half a dozen paramilitary organizations or more that are willing to take up arms at any time.

I suspect that Laldenga’s military training proved invaluable when the MNF decided to launch a secessionist war, post the 1959 famine.

Mizoram is a predominantly Christian state, some 87% of its population is Christian and the last time the famine struck, many Christian aid agencies extended aid and support to the state.

The famine itself is caused by the flowering of the bamboo plant and the fruits of the bamboo plant send rats into a feeding frenzy.

The rats feed on the fruits and multiply at accelerated rates and that in turn leads to a boom in the rat population which then becomes a threat to not only crops but also to livestock and as a result food production levels in the state plummet and the state is unable to meet its demand for food which in turn leads to famine and other rat related illnesses.

Part of the problem is due to the fact that almost 31% of Mizoram or 6,445 square kilometers of the state is covered with bamboo forests and that aggravates the problem because once the bamboo starts flowering, the rat population spirals out of control.

It is worth looking into the possibility of clearing as much of the bamboo forests as possible, normal slash and burn methods employed by tribal farmers should do the trick and look at replanting the cleared area with crops. That should help alleviate the problem somewhat and at the same time keep the environmentalists at bay.

When the famine strikes many families are reduced to the brink of abject poverty and survive on only one meal a day which leads to severe mal-nutritional problems and sometimes the damage that is done is irreversible.

Copyright © 2017 by Dyarne Ward

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Gandhi’s Salt March

In 1882 the British East India Company in an effort to control trade in India passed the Salt Act of 1882 which in effect gave the Company a monopoly over salt and it could only be sold and purchased through the Company and this allowed the Company, depending on prevailing economic factors and conditions, to raise the taxes on salt. Salt is a vital commodity and a commodity that is common in every Indian household and an increase in salt prices would cause undue hardship to the people.

In order to enforce the act a customs line was established that stretched from the north to the south of India comprising of at least 12,000 men with additional attention given to coastal areas to ensure that there was no illegal production of salt. Salt is most commonly produced by allowing salt brines from the sea to evaporate under the sun.

In order to break the monopoly Mahatma Gandhi on the 12th of March 1930 set out from his ashram or religious retreat in the company of a dozen men and they marched in accordance with the principles of non-violence or the doctrine of non-violence that Gandhi strictly observed to the town of Dandi some 240 miles away located on the coast of the Arabian Sea.

Along the way Gandhi addressed groups of people and as he and the men with him continued on their journey, more and more men and women joined him and by the time they reached the town of Dandi, Gandhi’s following of a dozen men had burgeoned to include hundreds if not thousands of men and women.

An accurate cinematic adaptation of the march and the events that transpired is given in the award winning movie Gandhi. Ben Kingsley played the role of Mohandas Gandhi.

Once Gandhi and those that accompanied him reached the town of Dandi they began making salt by harvesting salt brines from the sea and allowing it to evaporate in the sun, in defiance of the 1882 act which infuriated the authorities.

His actions were emulated all across India and soon people were beginning to make salt everywhere and even as they were breaking the law Gandhi continuously kept emphasizing his non violent stance to prevent any unwanted incidents.

He was eventually arrested along with some 60,000 others and was thrown in prison. Gandhi was arrested on the 5th May 1930 but despite his arrest civil disobedience continued throughout India and he was released in January 1931.

Copyright © 2017 by Dyarne Ward

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