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I was just in a café and the menu board listed iced chai for £2.9 (hand-written, dry erase white board). When I went to order they charged me £4.6 on the machine. After posting it and realising what I’d been charged I questioned the price and they said “oh, I’m not sure why it says there on there, but anyway it’s wrong.”

My premise understanding though please correct it if it is wrong is that the menu board posted is merely an invitation to treat.

In this case the ITT is non binding and they are not committed by it. Then when I order the item I am making an offer, by charging me a different price they are (perhaps making me a counter?) offer, and then by paying the charged amount on the card I am accepting the counter offer, thereby completing a contract that binds both of us.

If only offers are binding, but not invitations to treat, then what is the point/purpose of a ITT, much less why is it a concept with a technical legal name no less?

And then what consequences are there for maintaining a deceptive invitation to treat? Would it be false advertising?

My understanding was always that promotional materials listing a price for something generally are binding, in that otherwise there would never or at least not nearly so frequently ever be asterisks or fine print like “*while supplies last,” or “subject to terms and conditions,” or “price subject to approval/change”.

What gives in this framework of understanding?

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    Related: law.stackexchange.com/questions/91910/….
    – PMF
    Sep 8, 2023 at 12:45
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    Do you consider the menu an ITT or an offer?
    – PMF
    Sep 8, 2023 at 12:48
  • But if you completed the transaction under the presumption that the ITT price had been charged, wouldn’t that void the transaction? Many debit card transactions just go through with no PIN or signature required. Not worth making a scene over a couple bucks, but worth a mention to manager, and insistence on watching them strike the price off the whiteboard. Sep 8, 2023 at 14:09
  • 1
    I've not heard of Invitation to Treat before and this is the first question that has it as a tag. Could you create a definition for that tag? Sep 8, 2023 at 15:32

1 Answer 1

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Significance as a social practicality

If only offers are binding, but not invitations to treat, then what is the point/purpose of a ITT?

An invitation to treat is simply useful pragmatically and socially. It allows a potential offeror to know that this is a setting in which offers (typically in relation to items noted in the invitation to treat, and on terms that might be included in the invitation to treat) are normal. The invitation to treat announces that the thing is probably open to being subject of a contractual transaction.

It would be perceived as odd to offer a shopkeeper to buy the shopping cart. Or to buy the entire roll or plastic bags in which people place their fruits or vegetables that they are buying. To make it clearer what is within the norms of the setting to buy, invitations to treat are common.

Why give it a name?

why is it a concept with a technical legal name no less?

Because invitations to treat have often been argued to be offers and it became useful to distinguish the two in common law reasoning. Finding a communication to be an offer has tremendous legal significance.

If something is an offer, the offeror is exposed to the risk of being bound to perform upon acceptance by the counterparty (or by anyone in the world, in the case of offers to the world: see e.g. Carlill v. Carbolic Smoke Ball Company [1892] EWCA Civ 1).

If something is merely an invitation to treat, the person putting it forward has no risk in contract law of being bound to perform.

The distinction is nicely presented in AlumaSafway Inc. v The International Association of Heat & Frost Insulators and Asbestos Workers, Local 119, 2022 SKCA 99, at paras. 50-51 (citations omitted):

[50] An offer, in the contractual sense, is a “communication by the offeror to the offeree indicating a willingness to enter into an agreement with the offeree on certain terms”. Not all communications between two parties involved in a transaction are appropriately characterized as offers. Determining whether something is an offer requires attention to the existing context. The central question is whether there was an intention to create a binding legal relationship on certain specified terms, or merely an intention to start a discussion. In that respect, a distinction must be drawn between preliminary negotiations, or mere invitations to treat, and actual offers. It has been held, for example, that a mere expression of a willingness to contract on certain terms, or the creation of a draft agreement for discussion purposes, does not constitute an offer. As McCamus notes, “[t]he critical distinction between an invitation to treat and an actual offer is drawn on the basis that an offer communicates a willingness to be bound by the next communication of the offeree”.

[51] The test for determining whether a party intended to communicate an offer for acceptance is objective in nature. In that respect, the “question to ask is whether the offeree reasonably understood the communications, by words or conduct, of the offeror to constitute an offer. … The fact that the offeror may not have subjectively intended to enter an agreement is irrelevant”.

Statutory significance

And then what consequences are there for maintaining a deceptive invitation to treat?

Where an invitation to treat also constitutes an advertisement or posted price in the context of consumer protection regimes, it can take on additional significance.

What constitutes an advertisement or posted price or other significant communication in consumer protection regimes is defined by statute and has only coincidental overlap, if any, with the concept of invitation to treat.

For example, in Canada, the Competition Act prohibits a seller from charging the higher price between two or more prices clearly expressed, at the time the product is supplied, on the product, its wrapper, its container, on an in-store or other point-of-purchase display, or advertisement.

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