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Part (a)

There are two main issues rose in this case between Sulaiman and the

supermarket supervisor. One of them is whether the display of goods is an offer made

by Jolly Molly Supermarket to sell those goods and whether the fact that Sulaiman

filled up the trolley with goods made him bound to buy these goods.

First Issue

An offer differs from invitation to treat. In Section 2 (a) of the Contracts Act

1950, when one person signifies to another his willingness to do or to abstain from

doing anything, with a view to obtaining the assent of that other to the act or

abstinence, he is said to make a proposal. One reasonable man is willing to offer indoing an act without force whereas invitation to treat enables negotiation and it is

only inviting to sell or make an offer. Offer and invitation to treat have to be

differentiated when an offer is accepted; the contract will be automatically legally

bound with the relevant parties. However, the invitation to treat will be merely offers

which can lead to no legally formation of contracts in the very end. If the goods on

display were an offer, then taking them off the shelf would constitute an acceptance

by conduct. This is if a person places the goods back on the shelf, he or she would be

in breach of contract1. The display of goods is not actually an offer, but an invitation

to treat where sellers are actually invite buyers to make an offer of buying a good and

which sellers can then accept or reject.

The Malaysian Contracts Act 1950 is silent about this term i.e. there is a

lacuna. That is why due to the section 3(1) of the Civil Law Act 1956, English cases

can be used. The case of Fisher v Bell2clearly explains why the display of goods is

not an offer. The shopkeeper in this case was not guilty for the offense, which was

charged against him as the display of the knife in the shop was just an invitation to

treat and the shopkeeper had not offered the knife for sale within the section 1(1) of

the Act of 1959. Therefore, in a given situation goods on shelves are just an invitation

for buyers to make an offer. This means taking goods by Sulaiman and putting them

1TEXTBOOK2[1961] 1 QB 394

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in the trolley does not show his acceptance of the offer. He is able to freely take any

goods, which will not make him obliged to buy them.

In conclusion, the display of goods is just an invitation to treat and not an

offer, so taking goods from shelves does not mean that a person is in contract with

any shop.

Second Issue

A contract is an agreement enforceable by law3. A contract will be bound

when there is an offer, acceptance, intention to be bound and as well as consideration.

An agreement exists when there are acceptance and offer. Section 2(b) of the

Contracts Act states that acceptance takes place when a person gives an affirmative

answer to the proposal made to him, in this case the proposal is said to be accepted

and becomes a promise. In order for the agreement to be legally enforceable, there

must be an intention of parties to be legally bound and consideration must be also

provided in order to perform the promise made. As for consideration, Section 2(d) of

the Contracts Act 1950 states that when, at the desire of the promisor, the promisee

or any other person has done or abstained from doing, or does or abstains from

doing, or promises to do or to abstain from doing, something, such act or abstinence

or promise is called a consideration for the promise.One will intend to bind into a

contract by providing consideration.

In one case which has occurred under the English can give a clearer picture of

when a sale takes place when a good it taken from the shelf by a buyer and put into

the trolley or when it is put to a cashier and then paid. The case of Pharmaceutical

Society of Great Britain v Boots Cash Chemists4clearly illustrates the sequence of a

buying process. In this case, the display of goods is just an invitation to treat; the

court decided that that the sale exists only at the cashiers desk. When the item is put

to the cashier, this indicates an offer made by a customer to purchase the item. When

a cashier takes a good and tells the price, this presents his or her acceptance of the

offer. Hence, there is an agreement between parties. Once payment is made by the

customer i.e. consideration is provided, and there is a clear intention from both

parties, the agreement becomes legally enforceable. So the contract is formed.

3Section 2 (h) Contract Act 19504[1953] EWCA Civ 6

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Similarly to the case of Australian Woollen Mills Pty Ltd v The Common wealth5,

there is no offer and acceptance in the very beginning and the part has no intention to

bind into the contract. Consideration was not even given as well. The missing in one

of the elements has caused no binding of contracts between the parties.

So this reflects upon the case of Sulaimains that putting all the goods to the

trolley is not enough to makean offer. Contradicting to the case, Sulaiman did not

push it to the cashiers counter, so there was no offer made by him. Even if Sulaiman

put all the goods at the counter, he could still revoke his offer as long as the cashier

have not started to take items and scan the barcode of each item, which will mean the

cashier has accepted his offer. So under Section 5(1) of the Contracts Act 1950, a

proposal may be revoked as long as the other party did not accept it. However, once

acceptance takes place it is not possible to revoke the proposal. If Sulaiman realizes

that he does not have his wallet after his goods were scanned, in this this case it can

be said that he has already bought these goods and there is a contract between him

and the supermarket as there were the offer, acceptance, intention to be bound and the

executory consideration.

In conclusion, the fact that Sulaiman filled up the trolley with goods does not

make him bound to buy these goods. The offer from him to buy these goods only

exists when he puts them at the cashiers counter. As long as he has not done this, he

is free to put all the goods back and the supermarket supervisor is not able to tell that

he bought these goods already and must pay for them. Sulaiman has not breached any

contract and does not have to buy anything.

(1170 Words)

5 (1954) 92 CLR 424