1927 (EC-19) R V Clarke (Offer - Intention of Offer - Reliance of Offer)
1927 (EC-19) R V Clarke (Offer - Intention of Offer - Reliance of Offer)
R v Clarke,[1] is court case decided by the High Court of Australia in the law of contract.
R v Clarke
Contents
Facts
Judgment
See also Court High Court of Australia
Judgment
The High Court held that Clarke could not claim the reward because it was necessary to act in "reliance on" an offer in order to
accept it, and therefore create a contract.[1]:p 235 Isaacs ACJ and Starke J held that Clarke had not intended to accept the offer.
Higgins J interpreted the evidence to say that Clarke had forgotten about the offer of the reward.
“ The information for which Clarke claims the reward was given by him when he was under arrest with Treffene on a
charge of murder, and was given by him in circumstances which show that in giving the information he was not
acting on or in pursuance of or in reliance upon or in return for the consideration contained in the proclamation, but
”
exclusively in order to clear himself from a false charge of murder. In other words, he was acting with reference to
a specific criminal charge against himself, and not with reference to a general request by the community for
information against other persons. It is true that without his information and evidence no conviction was probable,
but it is also abundantly clear that he was not acting for the sake of justice or from any impulse of conscience or
because he was asked to do so, but simply and solely on his own initiative, to secure his own safety from the hand
of the law and altogether irrespective of the proclamation. He has, in my opinion, neither a legal nor a moral claim
to the reward. The learned Chief Justice held that Clarke never accepted or intended to accept the offer in the
proclamation, and, unless the mere giving of the information without such intention amounted in law to an
acceptance of the offer or to performance of the condition, there was neither "acceptance" nor "performance," and
therefore there was no contract. I do not understand either of the learned Judges who formed the majority to
controvert this. But they held that Williams v Carwardine has stood so long that it should be regarded as accurate,
and that, so regarded, it entitled the respondent to judgment. As reported in the four places where it is found, it is a
difficult case to follow. I cannot help thinking that it is somewhat curtly reported. When the various reports in banc
are compared, there are some discrepancies. But two circumstances are important. One is the pregnant question
of Denman C.J. as to the plaintiff's knowledge of the handbill. The question appears in the reports in Carrington &
Payne and in Nevile & Manning, but is omitted from the report in Barnewall & Adolphus. The other circumstance is
the stress placed on motive. The Lord Chief Justice clearly attached importance to the answer given to his
question. He, doubtless, finally drew the inference that, having knowledge of the request in the handbill, the
plaintiff at last determined to accede, and did accede, to that request, and so acted in response to it, although
moved thereto by the incentive supplied by her stings of conscience. Making allowance for what is in all probability
an abridged report of what was actually said, I cannot help thinking, on the whole, that not only Denman C.J. but
also some at least of the other members of the Court considered that the motive of the informant was not
inconsistent with, and did not in that case displace, the prima facie inference arising from the fact of knowledge of
the request and the giving of the information it sought. Motive, though not to be confused with intention, is very
often strong evidence of that state of mind, both in civil and criminal matters. The evidentiary force of motive in the
circumstances of Williams v Carwardine is no criterion of its force in the circumstances of any other case, and it
can never usurp the legal place of intention. If the decision in Williams v Carwardine went no further than I have
said, it is in line with the acknowledged and settled theories of contract. If it goes so far as is contended for by the
respondent, I am of opinion that it is opposed to unimpeachable authority, and I agree with the suggestion of Sir
Frederick Pollock, in the preface to vol. 38 of the Revised Reports, that it should be disregarded. It is
unquestionable—putting aside what are called formal contracts or quasi-contracts—that to create a contractual
obligation there must be both offer and acceptance. It is the union of these which constitutes the binding tie, the
obligatio. The present type of case is no exception. It is not true to say that since such an offer calls for information
of a certain description, then, provided only information of that description is in fact given, the informant is entitled
to the reward. That is not true unless the word "given" is interpreted as "given in exchange for the offer"—in other
words, given in performance of the bargain which is contemplated by the offer and of which the offer is intended to
form part. Performance in that case is the implied method of acceptance, and it simultaneously effects the double
purpose of acceptance and performance. But acceptance is essential to contractual obligation, because without it
there is no agreement, and in the absence of agreement, actual or imputed, there can be no contract. Lord
Kinnear in Jackson v Broatch said: "It is an excellent definition of a contract that it is an agreement which produces
an obligation."
[...]
I may here refer to a weighty American authority, that of Shaw C.J. in Loring v City of Boston. At p. 411 the learned
Chief Justice said of an action to recover a reward offered for the conviction of an incendiary:—"There is now no
question of the correctness of the legal principle on which this action is founded. The offer of a reward for the
detection of an offender, the recovery of property, and the like, is an offer or proposal, which anyone, capable of
performing the service, may accept at any time before it is revoked, and perform the service; and such offer on one
side, and acceptance and performance ... on the other, is a valid contract made on good consideration, which the
law will enforce." In the case then before the Court the offer was published more than three years before the
information relied on was given, and in the circumstances the Court held the offer had ceased to operate. The
important matter, however, is that the Court, in nonsuiting the plaintiff, said: "We are therefore of opinion, that the
offer of the City had ceased before the plaintiffs accepted and acted upon it as such, and that consequently no
contract existed upon which this action, founded on an alleged express promise, can be maintained." The
reasoning quoted seems to me to be as exact and as modern as that in Carlill's Case, and to be hardly capable of
advantageous alteration.
“ It must be clearly understood, however, that we, as a Court, have no responsibility for the policy of the Government
in resisting this claim. As the Chief Justice of the Supreme Court has said, Clarke gave evidence which was of the
greatest value to the Crown in the prosecution of Coulter and Treffene, and without that evidence there would have
”
been no case which could have been left to the jury against them. The refusal of the Crown to pay the reward in
this case is likely to weaken the efficacy of such a bait when the Crown seeks information from accessories to
crimes hereafter.
Clarke cannot succeed in this action unless he can establish a contract between the Crown and himself. I think
that there was no contract....
One of the murderers, Treffene, was arrested on 6th June, with Clarke; the other, Coulter, was arrested on 10th
June; both were indicted in August and convicted in September of the murder of Walsh; there was an appeal to the
Court of Criminal Appeal, which failed; and, after the failure of the appeal, Clarke, on the suggestion of Inspector
Condon, for the first time thought of the reward and decided to claim it. But he had seen the proclamation in May.
On 6th June, Clarke gave false information in order to screen the murderers; and, as he says, "I had no intention
then of doing anything to earn the reward. ... On 10th June, I began to break down under the strain. Manning took
down my statement on 10th June at my request. I had no thought whatever then of the reward that had been
offered. My object was my own protection against a false charge of murder. ... Up to 10th June I had no intention of
doing anything to earn the reward. At the inquest" (where he gave evidence without asking to be allowed to give
evidence) "I was committed for trial as an accessory. ... When I gave evidence in the Criminal Court I had no
intention of claiming the reward. I first decided to claim the reward a few days after the appeal had been dealt with.
Inspector Condon told me to make application. I had not intended to apply for the reward up to that date. I did not
know exactly the position I was in. Up to that time I had not considered the position ... I had not given the matter
consideration at all. My motive was to clear myself of the charge of murder. I gave no consideration and formed no
intention with regard to the reward."
[...]
It should be noted in this connection that the great judgment of Lord Blackburn in Brogden v Metropolitan Railway
Co is addressed to the other condition of contract, that acceptance must be communicated; but the whole
judgment assumes that consensus of mind pre-existed—"simple acceptance in your own mind, without any
intimation to the other party, and expressed by a mere private act, such as putting a letter into a drawer," does not
complete a contract (and see per Lord Cairns LC). The reasoning of Woodruff J. in Fitch v Snedaker seems to me
to be faultless; and the decision is spoken of in Anson (p. 24) as being undoubtedly correct in principle:—"The
motive inducing consent may be immaterial, but the consent is vital. Without that there is no contract. How then
can there be consent or assent to that of which the party has never heard?" Clarke had seen the offer, indeed; but
it was not present to his mind—he had forgotten it, and gave no consideration to it, in his intense excitement as to
his own danger. There cannot be assent without knowledge of the offer; and ignorance of the offer is the same
thing whether it is due to never hearing of it or to forgetting it after hearing. But for this candid confession of
Clarke's it might fairly be presumed that Clarke, having once seen the offer, acted on the faith of it, in reliance on it;
but he has himself rebutted that presumption....
My view is that Clarke did not act on the faith of, in reliance upon, the proclamation; and that although the exact
fulfilment of the conditions stated in the proclamation would raise a presumption that Clarke was acting on the faith
of, in reliance upon, the proclamation, that presumption is rebutted by his own express admission....
Starke J said "the performance of some of the conditions required by the offer also establishes prima facie an acceptance of the
offer."[1]:p 244 But here it was held that the evidence showed, Mr Clarke had not relied on the offer. So a presumption that
conduct which appeared to be an acceptance was relying on an offer was displaced.the defendant was ruled not entitled to a
government reward of 1000 pounds for information about the murderers of two police officers when at the time the information
was given.
See also
Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1
Williams v Carwardine [1833] EWHC KB J44
Gibbons v Proctor [1891] 64 LT 594
Notes
1. R v Clarke [1927] HCA 47 (http://www.austlii.edu.au/au/cases/cth/HCA/1927/47.html), (1927) 40 CLR 227 (http://www.austlii.
edu.au/au/cases/cth/HCA/1927/47.pdf) (22 November 1927), High Court.
2. Crown Suits Act 1898 (http://www.austlii.edu.au/au/legis/wa/num_act/csa189862vn9249/) (WA).
3. Clarke v R [1927] WALawRp 12 (http://www.austlii.edu.au/au/cases/wa/WALawRp/1927/12.html), (1927) 29 WALR 102 (31
August 1927), Supreme Court (WA).
References
Mitchell, P., & Phillips, J. (2002). The Contractual Nexus: Is Reliance Essential?. Oxford Journal of Legal Studies, 22(1), 115-134.
External links
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