My Lords,
1. These are the submissions on behalf of the respondent, John, in the appeal brought by the supermarket (the appellant). The respondent submits that the learned judge in the High Court was correct to find that a binding contract was formed when John took goods from the appellant’s shelves. This submission is based on the principle that, in the context of modern retail, the display of goods with a marked price constitutes a firm offer, which the customer accepts by taking the item from the shelf. The appeal should therefore be dismissed.
The Display of Goods as a Contractual Offer
2. The central issue is the point of contract formation in a self-service store. The traditional view, and the one advanced by the appellant, is that the display of goods is merely an ‘invitation to treat’. This position relies heavily on authorities such as *Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd* [1953] 1 QB 401 and *Fisher v Bell* [1961] 1 QB 394. However, it is submitted that these cases are distinguishable from the present facts and that the rule they established is not suitable for the contemporary retail environment.
3. The decision in *Boots* was heavily influenced by its specific factual context, namely the statutory requirement for the sale of certain medicines to be supervised by a registered pharmacist under the Pharmacy and Poisons Act 1933. The Court of Appeal reasoned that if the contract was formed when the customer took the item from the shelf, the pharmacist’s supervisory role at the till would be nullified (Somervell LJ in *Boots* [1953]). The present case does not involve regulated goods such as poisons; it concerns electronics and luxury consumer products. The specific statutory rationale underpinning the *Boots* decision is therefore absent here.
4. Furthermore, it is submitted that the display of goods in a supermarket, with a clear and specific price attached to each item, has all the characteristics of a legal offer. An offer is an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed (Treitel, 2020). The supermarket’s conduct in pricing and displaying its products unequivocally signals its intention to sell those goods to any customer willing to pay the stated price. The customer’s act of taking the product from the shelf is a clear and final act of acceptance.
Consumer Certainty and Commercial Reality
5. Adopting the respondent’s position would promote commercial certainty and align the law with the reasonable expectations of the public. A customer is entitled to believe that a business displaying goods for sale at a specific price is making a binding offer. To hold otherwise allows a retailer to change the price at the last moment at the till, which is contrary to fairness and transparency in commercial dealings. If the display were held to be an offer, the consumer would have certainty that the goods they have chosen are theirs at the price advertised.
6. The argument that treating the display as an offer would prevent a customer from changing their mind is unconvincing. It would be possible for the law to recognise that the contract formed is immediately voidable by the customer at any point before payment is processed, thus preserving the customer’s freedom to return items to the shelf. This would balance the consumer’s need for certainty with the practicalities of shopping. The shopkeeper’s refusal to process payment was therefore a breach of a contract that had already been formed.
Conclusion
7. For the reasons stated above, it is submitted that the High Court was correct in its judgment. The established case law is distinguishable, and a proper interpretation of offer and acceptance principles in a modern retail context dictates that the display of goods is an offer. The respondent respectfully requests that the appeal be dismissed.
References
* *Fisher v Bell* [1961] 1 QB 394.
* *Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd* [1953] 1 QB 401.
* Treitel, G.H. (2020) *The Law of Contract*. 15th edn. Sweet & Maxwell.
