A foundational case on offer and acceptance, Harvey v Facey [1893] remains good authority for the principle that, to be an offer, a statement must evince a desire to be legally bound. A statement of the lowest price for an asset is merely a supply of information, not an offer.

Facts of the Case

The appellants, Harvey and another, sought specific performance for the sale of a property in Jamaica known as Bumper Hall Pen. The dispute centred on a series of telegrams. Harvey asked: “Will you sell us Bumper Hall Pen? Telegraph lowest cash price”. Facey replied: “Lowest price … £900”. Harvey then telegraphed that they “agreed” to purchase at that price, arguing that Facey’s statement of price was an offer he had accepted.

Legal Issues

Whether the exchange disclosed a definite offer and an unequivocal acceptance sufficient to form a contract — or whether Facey’s reply, merely stating the lowest price, was simply a response to a request for information.

Judgement

The Privy Council held that no completed contract existed. Facey’s reply was not an offer but a simple answer to the second part of Harvey’s inquiry; it contained no language indicating a willingness to be bound, and merely provided information. The only “offer” was Harvey’s final telegram agreeing to buy, which Facey never accepted. Because there was no objective consent from Facey, the claim for specific performance failed.

Authority

Harvey v Facey is the leading authority that a statement of the lowest price in response to an inquiry is a request for information (or invitation to treat), not a legal offer. For a communication to be an “offer”, it must demonstrate a clear intention to be bound upon acceptance.

Related Discussion and Commentary

  • Contractual intention: an offer must reveal a manifest intention to contract, which Facey’s purely informational response lacked.
  • Consensualism: the decision reflects the requirement of consensus ad idem — offer and acceptance signify that both parties have reached a concluded agreement.
  • Cross-offers: the principles apply to simultaneous cross-offers — even identical offers sent at the same time form no contract, as there is no acceptance, only coincidence.
  • Certainty of terms: terms must be sufficiently certain and detailed; the lack of further detail and the context of the inquiry kept Facey’s statement below the threshold of an offer.