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When Can An Advertisement Be Considered An Offer

Generally, advertisements, catalogs, brochures, and announcements to the public related to the sale of merchandise at a specified price are not considered offers to enter into a binding contract. Rather, they are considered invitations to make a deal. As such, it will usually not be a breach of contract when the advertiser refuses to an item at a price he/she advertised.

When Can An Advertisement Be Considered An Offer?

An advertisement may be considered a valid offer if it has the following three elements:

1. It is sufficiently definite in its terms (e.g. descriptions, quality, quantity, & price);
2. It is communicated to a specific person or persons (usually limited group of people);
3. The circumstances surrounding the publication show that the advertiser has the intent to enter into a contract.

The main factor that most courts look at is whether the advertiser has the intent to assume legal responsibility of entering into a contract. However, different courts have different ways in dealing with this issue.

If The Advertisement Contains A Pricing Error To My Advantage, Can I Make The Advertiser Sell The Item To Me At The Erroneous Price?

Most likely not. Unless the advertisement meets the above elements of an offer, it will be doubtful that you can benefit from the erroneous advertisement. The advertiser will usually assert that he/she either did not intend to sell at the erroneous price or the terms of the advertisement were not definite enough.

Can The Advertiser Choose To Sell The Item At The Erroneous Price?

Yes. The advertisers might want to preserve business goodwill with its customers and affirm the contract even though the price was wrong. However, one needs to be cautious of the fact that if the advertiser voluntarily chooses to accept the erroneous advertisement as an offer, it may bar him/her from recovering damages from the printer/publisher of the advertisement who is responsible for the error.

An advertiser may also want to sell the item if he/she used bait and switch selling tactics in violation of consumer protection laws.

Should I Consult an Attorney for my Contract Issues?

Contract law is complicated, and the applicable rules and standards may vary from state to state. If you desire to enter into a contract, an attorney can help with proper drafting to provide you with protection later on.

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