In order to advise Ama Boateng on whether a binding contract exists with Creative Solutions Ltd (CSL), it is necessary to analyse the series of communications between the parties according to the principles of contract law in Ghana. The formation of a valid contract requires a clear and unequivocal offer which is met by a corresponding acceptance before the offer is terminated or withdrawn (NTHC Ltd v Antwi, 2009). The central question is whether the negotiations between Ama and CSL resulted in a ‘meeting of the minds’ or *consensus ad idem*. This advice will proceed by identifying and examining the key legal issues that arise from the facts provided.
Issue 1: What was the legal effect of CSL’s email of 5th March 2025?
The first issue concerns whether CSL’s email of 5th March was a simple request for information or a counter-offer that terminated Ama’s original offer. In contract law, there is an important distinction between the two. A request for information seeks to clarify the terms of the offer without proposing any changes, and it leaves the original offer intact. By contrast, a counter-offer proposes new terms and operates as a rejection of the original offer. The classic authority for this distinction is the English case of *Stevenson, Jacques & Co v McLean* (1880) 5 QBD 346, where an inquiry about delivery times was held to be a mere request for information, not a counter-offer.
In this scenario, CSL’s email stated: “We are interested but would like to clarify if your price includes post-launch support services. Please advise.” On its face, this appears to be a standard request for information. However, the analysis is complicated by the specific term in Ama’s original offer of 1st March, which stated: “any modification or inquiry would be treated as a counter-offer.”
The principle of freedom of contract suggests that parties are generally free to set the terms of their own negotiations. By including this clause, Ama attempted to control the nature of the responses she would receive, effectively defining an “inquiry” as having the legal effect of a counter-offer. While this is an unusual term, there is no general legal principle in Ghanaian law that would prevent an offeror from setting such a condition. If this term is held to be valid, then CSL’s email of 5th March, despite being phrased as a question, would legally constitute a counter-offer.
Under Ghanaian law, as confirmed in cases like *Fofie v Zanyo* [1992] 2 GLR 475, a counter-offer terminates the original offer, making it incapable of subsequent acceptance. Therefore, if Ama’s special term is effective, her original offer from 1st March was terminated on 5th March when CSL sent their inquiry. This would mean that there was no existing offer for CSL to accept on 8th March or for Ama to confirm on 11th March.
Issue 2: What was the legal effect of CSL’s email of 8th March 2025?
The second issue is the legal status of CSL’s email of 8th March, which stated: “We accept your offer dated 1st March on the basis that post-launch support is included at no extra charge.” Ama argues this was an acceptance. However, for an acceptance to be valid, it must be an unqualified and final assent to all the terms of the offer. This is often referred to as the ‘mirror image’ rule, meaning the acceptance must exactly match the offer.
If a response purports to be an acceptance but introduces a new term or varies an existing one, it is not a valid acceptance. Instead, it becomes a counter-offer. This principle is well-established and was demonstrated in the classic case of *Hyde v Wrench* (1840) 49 ER 132, where an offer to sell a farm for £1,000 was met with a response offering £950; this was held to be a counter-offer that destroyed the original offer. The Ghanaian courts have affirmed this position. In *Fofie v Zanyo* [1992] 2 GLR 475, the Court of Appeal held that a purported acceptance which was conditional or introduced new terms amounted to a counter-offer.
Applying this rule, CSL’s email of 8th March was not an acceptance. Ama’s offer was for services at GH₵25,000 without post-launch support. CSL’s response added a new, material term: “on the basis that post-launch support is included at no extra charge.” This is a clear departure from the terms of the original offer. Therefore, CSL’s communication was a counter-offer. As established above, a counter-offer has two effects: it rejects the original offer (or in this case, any revived offer Ama might have made on 6th March) and creates a new offer, with CSL as the offeror and Ama as the offeree. Ama’s argument that this was an acceptance “notwithstanding the added term” is incorrect in law.
Issue 3: Was there acceptance by silence or by conduct?
Following CSL’s counter-offer on 8th March, the issue is whether Ama accepted it. Ama did not reply to the email, which raises the question of whether her silence could be considered acceptance. The general rule of contract law is that silence cannot amount to acceptance. An acceptance must be communicated to the offeror. This was established in *Felthouse v Bindley* (1862) 11 CB (NS) 869, where it was held that an offeror cannot impose a contract on an offeree by stating that silence will be deemed consent. Therefore, Ama’s silence in response to the 8th March email did not constitute acceptance of CSL’s counter-offer.
A related question is whether the conduct of CSL on 9th March in promoting Ama’s branding package on their website could create a contract. Acceptance can be inferred from conduct, as shown in *Brogden v Metropolitan Railway Co* (1877) 2 App Cas 666. However, for conduct to amount to acceptance, it must be clear and unequivocal evidence that the party intended to accept the terms of a specific offer.
Here, CSL’s conduct is ambiguous. The conduct of promoting the package followed their own counter-offer of 8th March. It is likely that CSL was acting on the mistaken belief that a contract existed on *their* terms (i.e., including free post-launch support). Their conduct cannot be construed as an acceptance of Ama’s original offer, because they had explicitly rejected its terms by making a counter-offer the previous day. For conduct to form a contract, it must be in response to an offer from the other party. CSL cannot, through its own conduct, accept its own offer. Therefore, no contract was formed through conduct.
Issue 4: What was the legal effect of Ama’s email of 11th March 2025?
The final issue concerns Ama’s email on 11th March, in which she purported to accept the original offer. There are two significant problems with this ‘acceptance’.
First, the acceptance was late. Ama’s original offer explicitly stated that it would remain open for acceptance “until 5:00 PM on 10th March 2025.” An acceptance must be communicated within the timeframe specified by the offeror. According to Section 6(b) of the Contracts Act, 1960 (Act 25), an offer lapses if the time prescribed in the offer for its acceptance expires. Since Ama’s email was sent on 11th March, it was after the deadline and therefore ineffective as an acceptance. A late acceptance is treated in law as a new offer from the original offeree to the original offeror, which may then be accepted or rejected.
Second, and more fundamentally, the offer Ama was attempting to accept no longer existed. As discussed under Issues 1 and 2, the original offer of 1st March was terminated either by CSL’s inquiry on 5th March (due to Ama’s special term) or, at the very latest, by CSL’s counter-offer on 8th March. It is a foundational principle of contract law that an offer, once terminated, cannot be revived and accepted. Therefore, Ama’s communication on 11th March could not form a contract based on the original terms because that offer was no longer on the table. Legally, her email constitutes a fresh offer to CSL to provide services on the terms of her original proposal. CSL explicitly rejected this new offer on 13th March.
Conclusion
In advising Ama Boateng, the analysis of the legal issues leads to the conclusion that it is highly unlikely that a binding contract was formed with Creative Solutions Ltd. The sequence of communications shows a negotiation process that failed to reach a final agreement. Ama’s original offer was terminated, either by CSL’s inquiry on 5th March under her own special condition, or by CSL’s clear counter-offer on 8th March. CSL’s counter-offer was not accepted by Ama, as her silence cannot amount to acceptance. Finally, Ama’s own purported acceptance on 11th March was both too late and was an attempt to accept an offer that had already been terminated. Consequently, no contract exists between Ama and CSL on either party’s terms. Ama’s legal position is weak, and she cannot compel CSL to perform or claim damages for breach of contract.
References
Cases
*Brogden v Metropolitan Railway Co* (1877) 2 App Cas 666
*Felthouse v Bindley* (1862) 11 CB (NS) 869
*Fofie v Zanyo* [1992] 2 GLR 475
*Hyde v Wrench* (1840) 49 ER 132
*NTHC Ltd v Antwi* [2009] SCGLR 117
*Stevenson, Jacques & Co v McLean* (1880) 5 QBD 346
Legislation
Contracts Act, 1960 (Act 25) (Ghana)
