Scenario:

Gerald builds an outdoor entertainment area in his back garden.He is very keen on entertaining his friends in style and he wants to get a pool table to impress his friends who are all high level pool players.In particular he wants to get a pool table in time for his upcoming birthday celebration on 16 November.On 1 November, he visits the website of XYZ Bar Supplies ("XYZ") where he sees the following promotion:

Special Offer!!!

Parkdale Pool Table.The World's Best Table.

Usually $5,000.00 but you can get one for a limited time for only $3,000.00.

But wait there's more!!!

Order by 5pm (WST) on 1 November and receive a free set of pool balls and two pool cues worth $500.00 absolutely free!

PLUS - if we do not deliver on time, you get your money back and keep the table!

Gerald notices that the time is 4:45pm (WST) and so he only has fifteen minutes to order a table to get the free balls and cues.Fortunately he manages to fill in his personal and credit card details and submit his order for a table online at 4:59pm (WST).He includes a note stating that delivery must be by 15 November for a party on 16 November.Underneath the online button that Gerald clicks to submit his order, it is stated that:

Online Orders may take up to 2 minutes to process.

Orders are not accepted unless we notify you by email.

At 5:01pm (WST), Gerald receives a confirmation email from XYZ stating:

Dear Gerald,

CONFIRMATION EMAIL

Thank you for your order.We confirm acceptance thereof and delivery by 15 November.

If you require pool balls or cues, please visit our website and explore our range.

Please note that our money-back delivery promise does not apply to any delays due to availability.

Regards

Percy

Gerald immediately replies to the email as follows:

Dear Percy,

The table I ordered comes with a free set of balls and two pool cues.Please confirm that these will be arriving with the table.

Regards

Gerald

Shortly thereafter, Gerald receives the following email:

Dear Gerald,

Unfortunately, since this transaction was completed after 5pm (WST), as per the time of our confirmation email, you did not qualify to receive the free balls and cue.In any case, our promotions are not offers but merely invitations and we only have to honour them if we agree to them.Since we do not agree to supply you with free balls and cues, you will need to purchase these.

Regards

Percy

Reluctantly, Gerald orders the pool balls and cues from XYZ and pays $500 for them.They are to be delivered with the table.

On 10 November, XYZ calls Gerald and tells him that the pool table has arrived at their local warehouse but that they are extremely busy and cannot deliver the table by 15 November, however, they can deliver it on 20 November.When Gerald reminds XYZ that they promised to deliver on time or they need to give him his money back, XYZ refers him to the term in the confirmation email. Gerald is angry but agrees to accept the table on 20 November.

The table does not arrive on 20 November and XYZ do not answer Gerald's phone calls.The table arrives on 21 November and when it is unloaded, Gerald notices that there is a scratch on one side of the table and one ball is missing.Gerald is furious and tells the delivery staff to take the table back immediately because:

It is scratched

There is a ball missing

It was delivered late

The delivery staff refuse to take the table and they leave.

The next day Gerald calls XYZ demanding that they fetch the table and give him back all his money.They refuse to take back the table or return Gerald's money.

Gerald wishes to claim damages as follows:

• Return of the $3,000.00 he paid for the table;
• Return of the $500 for the set of balls and cue sticks he had purchased for to use with the table;
• A set of stools and a bar table he had purchased to put in his pool room but now are out of place; and
• Disappointment and stress.

Question 17.5 Marks

With reference to law and precedent cases ONLY about offers, discuss whether or not Gerald was actually entitled to receive the pool balls and cue sticks for free.

Question 27.5 Marks

Regardless of your answer to question 1 above, with reference to law and precedent cases ONLY about exclusion clauses, advise Gerald as to whether or not XYZ's term in the confirmation email was validly given and, in any case, if it would have covered late delivery in this scenario if XYZ's clause had been validly given.

Question 37.5 Marks

Regardless of your answers to questions 1 and 2 above (and ignore any exclusion clause), with reference to law and precedent cases ONLY about performance, advise Gerald as to whether or not he could successfully return the table to XYZ.

Question 47.5 Marks

Regardless of any of your answers above and assume that Gerald IS entitled to return the table for breach, with reference to law and precedent cases ONLY about damages, advise Gerald as to which, if any, of his damages claims are likely to succeed.