D, in Austria, made a counter-offer to P, in the UK, which was accepted by telex message. HL held that the contract was within Austrian jurisdiction since, with instantaneous communications, the contract was formed where and when the acceptance was communicated.
Lord Wilberforce: telex is instantaneous communication and there is a general rule that contracts formed by instantaneous communication have effect where and when the offer is accepted, and “where it appears to be within the mutual intention of the parties that contractual exchanges should take place in this way”. This is the case here. However the rule is NOT universal: e.g. cases where the recipient is not the principal offeror but a messenger/ agent with limited authority; when the message doesn’t reach the principal immediately, such as a telex message outside office hours; where the machine is operated through 3rd parties; where there is a default at the recipient’s end. In these cases, the point at which acceptance takes effect is determined with reference to the parties’ intentions, sound business practice, where the risks ought to lie etc. i.e. a case-by-case basis.
CW: this draws a distinction between what CW terms “two-way” instantaneous communication i.e. where the “conditions of simultaneity are met”- i.e. where both parties are present and the general rules apply; and “one-way” instantaneous communications where the general rule might not apply if the recipient at the other end is not present to receive the acceptance. She says the courts are moving towards an approach of “when a reasonable offeror would access the message, taking account of all circumstances”. In Texas SS Co Ltd v The Brimnes (1975) the court held that a revocation of an offer, sent by telex, would be effective as soon as it was received on the telex machine if sent during normal office hours to the place of business, whether or not it remained unread.