This is a case on whether an advertisement in a newspaper constitutes an offer.
Facts of the Case
The appellant (Partridge) inserted an advertisement in “Cage and Aviary Birds” newspaper containing the words “Quality British BCR … Bramblefinch cocks, Bramblefinch hens, 25s each” under the general heading “Classified Advertisements”. There is no direct use of the words “offer for sale”.
Mr Thompson saw the advertisement and wrote for a hen and enclosed a cheque. A hen was sent to him and arrived on 2 May 1967, wearing a closed-ring. Mr Thompson was able to remove the ring without injury to the bird. The respondent (Anthony Ian Crittenden, on behalf of the Royal Society for the Prevention of Cruelty to Animals (RSPCA)) brought an action against the appellant. The appellant was charged with unlawfully offering for sale a certain wild live bird, viz, a brambling, other than a close-ringed specimen bred in captivity, contrary to s.6(1) of, and Sch 4 to, the Protection of Birds Act, 1954.
Section 6, so far as material, provides: “(1) If … any person sells, offers for sale … (a) any live wild bird … included in Sch 4 to this Act of a species which is resident in or visits the British Isles in a wild state, other than a close-ringed specimen bred in captivity; … he shall be guilty of an offence … “ Schedule 4 has the heading: “Wild birds which may not be sold alive unless close-ringed and bred in captivity” and amongst the names in the schedule is “brambling”
The justices were of opinion that the advertisement was an offer for sale, and that the brambling was not a close-ringed specimen bred in captivity because it was possible to remove the bird's ring. They, found the case proved and fined the appellant £5 and ordered him to pay £5 5s advocate's fee and £4 9s 6d witnesses' expenses. The appellant appealed.
Judgements of the Court
It was contended before the justices by the appellant that there was no offer for sale in the county of Chester as alleged since the advertisement in “Cage and Aviary Birds” was merely an invitation to treat and that an offence was not committed under the aforesaid section merely because it was possible to remove the ring from the bird's leg.
The respondent contended that the said advertisement was an offer for sale in Chester and that a bird was not a close-ringed specimen bred in captivity if it was possible to remove the ring from its leg.
The court held that a definition of “close-ringed” means ringed by a complete ring, which is not capable of being forced apart or broken except, of course, with the intention of damaging it. Thus, this was not a close-ringed specimen, because they could take the ring off. The court then points out that the key element is “offer for sale”, and it is to be noted in s 6 of the Act of 1954 that the operative words are “any person sells, offers for sale or has in his possession for sale’. The court finds that it was clear that there is a sale in this case. However, the respondent had chosen to prosecute the appellant for offering for sale relying on the advertisement out of the three options.
The court referred to the Fisher v Bell [1960] 3 All ER 731 and held that the insertion of an advertisement in the form adopted here under the title “Classified Advertisements” is simply an invitation to treat. The offence charged against the appellant was therefore not established. The appeal was allowed and the conviction was quashed.
Principles of the Case
An advertisement in a newspaper generally does not constitutes an offer, it is an invitation to treat. It can be an offer in certain circumstances. (see Carlill v Carbolic Smoke Ball Co. [1893] 1 Q.B. 256)
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