Harvey v Facey (1893): Offer or invitation to treat?

Areas of applicable law: Contract law

Main arguments in this case: An invitation to treat is not an offer.

The fact of the case:The case involved the communication over a property in Jamaica, West Indies and the issue of whether the communication that took place was sufficient to make a legally binding agreement between the parties or if it was just an invitation to treat.

In October 1891, Mr Facey received a telegraph from Mr Harvey who was interested in buying a property called Bumper Hall Pen. The telegraph read “Will you sell us Bumper Hall Pen? Telegraph lowest cash price – answer paid”.

In response Mr Facey replied “Lowest price for Bumper Hall Pen £900”.

Upon receiving Mr Facey’s reply, Mr Harvey then sent another telegraph with the following message “We agree to buy Bumper Hall Pen asked by you.” Mr Harvey also asked if the property deed could be sent so that he might get early possession of the property.

Mr Facey declined to sell the property at that price and Mr Harvey sued him for breach of contract and argued that Mr Facey’s  telegraph (“Lowest price for Bumper Hall Pen £900”) was an offer to sell the property. The dispute went to the court and at the first trial the court found for Mr Facey; Mr Harvey appealed and won the case at the Court of Appeal. This time Mr Facey appealed against the decision and the case finally went to the Privy Council which upheld the trial court’s decision.

The Privy Council took the view that Mr Facey’s reply that the Bumper Hall Pen was £900 was no way an offer or a commitment to sell the property to Mr Harvey but rather a reply to the question, and therefore an invitation to treat. And the telegraph that Mr Harvey sent (“we agree to buy Bumper Hall Pen for £900”) was an offer in response to invitation to treat. However this offer was not accepted and so there cannot be an agreement.