P instructed an auctioneer to sell a box of hemp and a box of tow. Auctioneer made a catalogue that failed to distinguish between the two, put them in identical boxes, same shipping mark etc. D wanted to buy hemp and only inspected the box with hemp in, assuming that the other would also contain hemp since the boxes were indistinguishable. He thought he was bidding for hemp when in fact he was bidding for tow and on discovering the mistake, D refused to pay for or take the tow. P sued him for the price. Lawrence J held that D did not have to pay.
Lawrence J: The parties were never ad idem so that there was no negotiation and sale. The only way to prevent D from asserting that they were never ad idem, which is the truth, is if they can be estopped, which P argued they were, since D was negligent in not inspecting both boxes. Lawrence J refutes this since D acted “reasonably” in making the assumption that he did. The fault was with the seller for failing to distinguish between the boxes and D’s assumption was “natural”. Therefore P cannot claim.
McKendreick: This a more like a subjective approach since objectively there would have been a contract (A reasonable person would expect a bidder to know the contents of the box for which he I bidding). Other views are Endicott’s (It IS an objective approach since a reasonable bystander would infer from P’s inducement of D that it was hemp in the box to believe that the contract was for hemp); Howarth’s view (that these cases show promisor objectivity since, although they focus on ad idem, it is ad idem from the perspective of a reasonable buyer); Vorster (overall situation is assessed to infer objectively whether there was an agreement.)