Pharmaceutical Society of Great Britain v. Boots Cash Chemists Ltd.

[1953] 1 QB 401

(Decided on February 5, 1953)

The case deals with the fundamentals of the formation of a contract. This case explains the difference between an offer and an invitation to offer. While an offer at first hand grant the other party to enter into a contract as soon as it is accepted, an invitation to offer mainly invites the other party to make dialogue and make an offer himself. For example, when we go to a bookshop, the display of the books in the shop is an invitation to offer by the seller to the general public. Anyone going through by the shop can choose to come to buy one of the books or may choose otherwise. Here, no one is bound to perform any action legally. Similarly, other forms of advertisements are not actually offered but invitations to offer.

Facts of the case

Boots Cash Chemists Ltd. renovated its branch pharmacy into a new style of pharmacy. The pharmacy adopted a self-service system. Before this system, all the medicines were stored behind the counter and the pharmacist assisted to get what was requested. Now, these products were arranged and displayed on open shelves from which they could be chosen by the customer, placed in a shopping basket, and taken to the counter where they would be paid for. The counter was operated by a registered pharmacist. When a customer purchased a drug, the registered pharmacist supervised the sale and was authorized, if necessary, to stop the sale.

On 13 April 1951, two ladies purchased from Boots, two packages containing poison covered by section 18 of the Pharmacy and Poisons Act, 1933. The Pharmaceutical Society of Great Britain objected to this method and brought legal proceedings against Boots alleging that the two sales had not been made under the supervision of a registered pharmacist and therefore were in breach of section 18[i] of the Act. The society argued that the display of goods was an offer and the customer accepted it by selecting and putting the item in the basket.

The pharmaceutical society lost their case and appealed to the English Court of Appeal.

Issues Raised

1. Whether the display of drugs in the medical shop an offer or invitation to treat?
2. Whether there was an infringement of sec 18(1) (a) (iii) of the Pharmacy and Poisons Act, 1933?

Judgment

In this case, both the Queen’s Bench Division and the Court of Appeal passed the judgment in favor of Boots Cash Chemists. The Court upheld the concept of Invitation to treat. The Court opined that the display of goods was not an offer, but an invitation to treat. By choosing the goods and putting them in the basket constitutes an Offer by the customers. When the customers take the medicines to the pharmacist at the cash counter, it is his discretion to accept or reject the offer. Since the contract was completed at the cash desk in the presence of a supervising pharmacist, there was no violation of section 18(1) (a)(iii) of the Pharmacy and Poisons Act, 1933 which provided for such supervision at the time of sell of drugs mentioned in poison’s list of the Act. Therefore, the two ladies purchased the packages containing poison in the supervision of a registered pharmacist.

Justice Somerwell regarded the new way introduced by the Boots as a more organized way of doing business. It is intended so that the customers can choose what they want and the contract is completed when the article indicated by the customer is accepted by the supervising pharmacist. In the normal situation which is dealt by the plaintiff, once an article is chosen by the customer, he has no right to replace the article or choose another one but except for paying for the same. Hence, this position should not be considered.

 Lord Chief Justice opined that the transaction involved in the case is no different than the ordinary transactions of a shop. In the above situation, self- service is being advertised. Mere picking up a bottle of medicine from the shelves does not amount to acceptance of an offer to sell. It was an offer by the customer to buy. He also said that the sale was made under the supervision of a registered pharmacist. The appeal was ought to be dismissed.[ii]

Case Analysis

The case stated is a landmark one when it comes to ‘offer’ and ‘invitation to treat’. The question before the court of appeal was that whether the display of drugs in a medical shop was an offer or invitation to treat. The court had also to decide as to what time the contract of sale of drugs took place and whether the defendants infringed sec. 18(1) (a)(iii) of the Pharmacy and Poisons Act, 1933. The Court while rejecting all the contentions and dismissing the appeal filed by Pharmaceutical Society, clarified the position of law relating to offer and invitation to treat. Invitation to offer precedes the offer and cannot be construed as an offer because its purpose is merely to advertise the goods in the shop and to invite the customers therefrom. While an offer is made with a view to obtain the assent of the person to whom it is made.[iii] The distinction between an offer and an invitation to offer depends primarily on the intention with which it was made.[iv] The shopkeeper does not intend to sell each and every article in the display. The customer can choose the desired item and take it to the cash counter for purchasing it. It is the customer who makes an offer to the shopkeeper for purchasing the same. The shopkeeper may accept or reject the offer.

On the first issue that whether the display of drugs in a medical shop was an offer or invitation to treat. The court aptly rejected the contention that when each of the two customers picked up a package containing poison from a particular shelf and put it in their baskets provided by the shop-keeper, the sale took place then and there, instead it upheld the contrary view and clarified that the sale did not take place until the customer who placed the product in her basket came to the cash counter. Displaying the goods in the shop is merely an invitation to offer[v] and accepting the invitation does not result in a binding contract.

On the second issue that whether the defendants infringed sec. 18(1) (a)(iii) of the Pharmacy and Poisons Act, 1933, the court accurately pointed out that since the sale took place at the cash counter in the presence of a registered pharmacist, there was no violation of sec. 18(1)(a)(iii) of the Act.  The appeal was rightly dismissed.

This decision is of great importance. The court adhered with the existing contract law and upheld the concept of invitation to treat.

References

Bareacts

• The Indian Contract Act, 1872.
• The Pharmacy and Poisons Act, 1933.

Books

• DR. S.K. KAPOOR, Contract-I & Specific Relief Act (14^th edition, 2015).
• MARY CHARMAN, Contract Law (4^th edition, 2007).

Cases

• Partridge v. Crittenden, [1968] 1 WLR 1204.
• Fisher v. Bell, [1961] 1 QB 394.
• Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] EWCA Civ 6.
• Timothy v. Simpsom, [1834] 6 C & P 499.
• Chapelton v. Barry Urban District Council [1940] 1 KB 532.
• Harvey v. Facie, (1893) A.C. 552.
• Mac Pherson v. Appauna, AIR 1951 SC 184.
•  Debenhams Retail plc v Customs and Excise Commissioners, [2004] BVC 554.
• Ajay Pal v. Shopon Marketing, Consumer Complaint No. 70 of 2016.

[i] “It shall not be lawful for a person to sell any poison included in Part I of the Poisons List, unless (i) he is an authorized seller of poisons; and …. (iii) the sale is effected by, or under the supervision of, a registered pharmacist”.

[ii] Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] EWCA Civ 6.

[iii] The Indian Contract Act, 1872, No. 9 (Act 9 of 1872), s. 2(a).

[iv] Ajay Pal v. Shopon Marketing, Consumer Complaint no. 70 of 2016, Consumer Disputes Redressal Forum, Solan.

[v] Fisher v. Bell, [1961] 1 QB 394.

By –

Yukta Joshi
Satyam Mishra
Janshanpreet kaur