1. How can the contract between O and R be oral??? How's this question "deliberately ambiguous on whether the contract is oral or written"? Even if O and R negotiated the sale orally, R signed a 'written "Sale Note"'!

  2. The textbook's answer doesn't bring up the Parol Evidence Rule, but can O plead the Parol Evidence Rule to prove that the contract is written, not oral?

Here's the problem question.

O (original owner) specialises in selling clothes. O has a retail outlet in Bond Street and sells online.

R (rogue) wants to buy a tie for £15. R says he is David Beckham, the famous footballer, whom O knows by name but has never seen. In fact R is impersonating Beckham. R offers O £10 for the tie, which O accepts. O then asks R to sign a written “Sale Note” (stating the price and various terms, including the fact the goods are non-returnable) which R does in the name of Beckham. O, knowing of Beckham’s reputation, agrees to take a cheque which is subsequently dishonoured, so that O is never paid. R sells the tie to BFP for £5. O discovers this when BFP advertises the tie on eBay. O demands that BFP return the tie to O, but BFP refuses.

Advise BFP.

Here's the relevant part of my textbook's answer.

The issue here is unilateral mistake as to identity. The question is deliberately ambiguous on whether the contract is oral or written. You can argue either way, but must apply appropriate law (Lewis v Averay in the case of an oral contract and Shogun Finance v Hudson in the case of a written contract). The result of the litigation O v. BFP depends on whether the contract is characterized as written or oral.

  • What additional details are wanted here? – David Siegel May 12 at 1:17
  • When you quote a book, including a textbook, please provide a citation (title, author, date, and publisher, if possible) and a link if one is available. – David Siegel May 12 at 1:21

R offers O £10 for the tie, which O accepts.

It is not explicitly stated but it is heavily implied that this offer and acceptance was verbal, not written. Since this is the contract, it is arguably an oral contract.

However, an alternative argument could be made that the “sale note” subsequently reduced the contract to writing. If this document contained an entire agreement clause, then this argument would be unassailable. If it didn’t, then a counter-argument that the “sale note” is simply a post-contractual record of what happened. Alternatively, the “sale note” could be argued to be void since it contains an illegal term - all consumer goods are returnable if they are defective in England and Wales.

The parol evidence rule can only be invoked once the written document is established to be the contract, it cannot be used to exclude evidence about whether it is or isn’t the contract.


The "Sale note" may or may not be a contract, it might be just a memo of the terms of an oral contract.

By the way, if part of the consideration for the reduced price was the ability of O to advertise that a well known person had patronized O's shop, R has committed fraud in that way as well as in writing a bad check, but that is aside from the issue of oral vs written.

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