Having your cake and eating it

I’m conscious that I might well be barking up the wrong tree in commenting upon this issue but overnight I spent a period up to 0100 hours this morning listening to Radio Five Live.

One of the topics of the moment was the ‘gay cakes’ discrimination case in Northern Ireland, in which (as I understand it) a gay couple wanted some slogan celebrating being gay to be included in the design of a cake they wished to order from a cake shop. When, citing their religious beliefs, the Christian couple running the shop had refused to take the order, the gay couple claimed they had been discriminated against.

When the case came to court the Christian couple were indeed found in law to have discriminated against the gay couple. This decision has caused some discussion and controversy, with those of religious faith claiming that their right to act in accordance to their beliefs have been ignored.

A technical difficulty with this story occurred to me as I was listening to the phone-in.

Years ago I learned the basic tenets of law including the defining aspects of what constitutes a legal contractual agreement.

I had better give further particulars – we’re talking a long time ago and I may be hazy or even wrong:-

• Certainty as to the contents of the intended contract [i.e. as to what is being bought, sold or exchanged and ‘how much for’];
• Offer;
• Acceptance;
• Consideration passing both ways [i.e. in return for the agreed subject of the contract being passed from A to B, the agreed ‘payment’ passing from B to A].

Next after those essentials, I then learned the definitions of, and differences between, ‘offer/acceptance’ and ‘invitation to treat/offer’.

I can remember a distinct example illustrating the latter that was given in the lecture room – it may have been made up, or it may have been an actual case in point, I cannot recall which.

A shop contains a dress for sale in its window with a sales tag on it saying ‘£15’. A lady walks in and attempts to buy it for £15. The shop owner refuses to sell it because – in error – the sale tag was displaying the wrong price (it should have been £150).

The customer takes the shop owner to court on the basis that, erroneous or not, it had ‘offered’ to sell the dress for £15 and the customer had simply ‘accepted’ that offer – therefore it was a binding contract.

In fact, in law, that was not so. Under the definition of ‘invitation to treat’, by placing the sales tag in question (or indeed any sales tag) on an item in the shop, the shop was not making an offer to sell that item for that price to any customer who came in and ‘accepted’ the offer.

In fact a sales tag on an item in a shop is just an ‘invitation to treat’ – a statement reflecting a legal situation where the ‘offer’ and ‘acceptance’ parts of a contractual agreement are switched round.

In other words, in the situation outlined above, by placing a sales tag of £15 on its dress, the shop was effectively making a statement that ‘if you were to make us an offer to buy this dress for £15, we might accept it’.

By this route, if you like, in law the originators of a contractual ‘offer’ and ‘acceptance’ are reversed. The customer is making the offer (to buy the dress for £15) and the shop either completes the contract by accepting it … or not. [The sales tag on the dress, in law, is ‘an invitation to treat’, not an offer].

You might wonder where this history and legal shaggy dog story is leading.

I’ll get to the point.

Returning to the top of this piece and the cake shop owners’ discrimination against the gay couple who wanted a pro-gay message put on a cake …

Never mind whether the shop owners were discriminating – because of their religious beliefs or not – against the gay couple.

What about the legal situation as regards ‘invitation to treat’?

I don’t know the specifics of the Northern Ireland cake shop which is the subject of this row. But let me presume that perhaps they sold cakes and bread baked upon the premises, amongst other items, to the public. Plus, perhaps, they offered a service of making ‘cakes to order’.

Let us also presume that the gay couple purported to order a cake under the latter scheme – in order words, tried to take advantage of the shop owners’ willingness to make special cakes to order for customers for a price (which price depending perhaps upon size, ingredients and complexity of design chosen).

I put this to you, dear reader, and to the legal profession, the courts and any ‘equal rights’ campaigners:

In their business of making cakes to order, surely the Northern Ireland shop owners are/were in law doing no more than making an ‘invitation to treat’?

In other words, they were effectively doing no more than making a statement to the world ‘if we can agree the size and design of the cake concerned, and indeed the price, we’ll make a cake to your order’.

… and then, in the case concerned, when the gay couple offered to pay the ‘indicated’ price for a cake of the size and design of their choice … the shop owners simply declined to accept that offer.

What’s wrong – in the law of contract – with that?

I’m not saying that, if they wish to, Parliament and/or judges in the courts of England and Wales cannot set a principle that law of discrimination  ‘outweighs’ the law of contract.

I’m just suggesting that – deliberately or not – this has become a potential implication of the decision made in this Northern Ireland cake shop case.