Pharmaceutical Society of GB v Boots
Court of Appeal [1953] 1 QB 401
[1953] EWCA Civ 6; [1953] 1 All ER 482, [1953] 2 WLR 427
Overview
This case involved involved consideration of the point in time at which an 'offer' and 'acceptance' is made in department stores where goods are made available on shelves for customers to take to the cashier and purchase.
The Court in this case determined that placement of goods on shelves constituted an 'invitation to deal', with an offer being made (and capable of being rejected) when the customer took the items to the cashier for purchase.
Facts
Boots operated a self-service store which included a pharmacy department. Customers would select items from the shelves and take them to a cashier's desk at one of the exits where they were paid for. When a drug was involved, a pharmacist supervised the sale. The Pharmaceutical Society alleged that Boots infringed the Pharmacy and Poisons Act 1933 requiring the sale of certain drugs to be supervised by a registered pharmacist. The claim failed at first instance and the Society appealed.
Judgment (Somervell LJ)
The Society had argued that a drug sale was completed when the customer took an item from the self and put it in their cart/basket. The result of such analysis would be that that when the customer came to the sales desk the pharmacist would not be able to say that the drug could not be sold to that customer. After assessing the legal implications of such an analysis Somervell LJ noted that in relation to
"an ordinary shop, although goods are displayed and it is intended that customers should go and choose what they want, the contract is not completed until, the customer having indicated the articles which he needs, the shopkeeper, or someone on his behalf, accepts that offer. Then the contract is completed."
The same rule should apply in relation to this case. If the Society’s argument was accepted then customers, once placing an item in their basket, would have no right to substitute a different article which she/he preferred. This would be commercially inconvenient.
As a consequence the Society’s case failed because, at the appropriate time, the sale was supervised as required by legislation.
Trial
Lord Chief Justice
The claim failed before the Lord Chief Justice at first instance, who held:
'It seems to me therefore, applying common sense to this class of transaction, there is no difference merely because a self-service is advertised. It is no different really from the normal transaction in a shop. I am quite satisfied it would be wrong to say the shopkeeper is making an offer to sell every article in the shop to any person who might come in and that he can insist by saying 'I accept your offer' ...
'... the mere fact that a customer picks up a bottle of medicine from the shelves in this case does not amount to an acceptance of an offer to sell. It is an offer by the customer to buy. I daresay this case is one of great importance, it is quite a proper case for the Pharmaceutical Society to bring, but I think I am bound to say in this case the sale was made under the supervision of a pharmacist. ... In this case I decide, first that there is no sale effected merely by the purchaser taking up the article. There is no sale until the buyer's offer to buy is accepted by the acceptance of the money, and that takes place under the supervision of a pharmacist. ...'
The Society appealed.
Appeal
Lord Justice Somervell
His Lordship described the layout of the Boots store as follows:
'The customer when he comes in is invited to take a receptacle and goes round and can choose the articles which he wants. He then goes to one of two desks at the end of the room, and there, admittedly, there is a registered pharmacist, ... '
It was argued by the plaintiffs that 'the purchase is complete if and when a customer going round the shelves takes an article and puts it in the receptacle which he or she is carrying, and therefore if that is right when the customer comes to the pay desk, having completed the tour of the premises, the registered pharmacist, if so minded, has no power to [decline the sale].
Lord Justice Somervell noted that the answer to the question of when the sale was completed depended on how the layout of the store ought to be regarded. It could either be regarded as:
'an offer which is completed and both sides bound when the article is put into the receptacle'; or
'a more organised way of doing what is done already in many types of shops', in which case the customer makes the offer to purchase at the checkout which may, or may not, be accepted.
His Lordship used the analogy of a bookshop, providing the following example:
'[A bookseller enables] customers to have free access to what is in the shop to look at the different articles and then, ultimately, having got the ones which they wish to buy, coming up to the assistant and saying "I want this"? The assistant in 999 times out of 1,000 says "That is all right", and the money passes and the transaction is completed.... in the case of the ordinary shop, although goods are displayed and it is intended that customers should go and choose what they want, the contract is not completed until, the customer having indicated the articles which he needs, the shop-keeper or someone on his behalf accepts that offer. Then the contract is completed.'
His Lordship concluded that the Boots pharmacy layout ought to be treated in the same way. Were it otherwise, 'once an article has been placed in the receptacle the customer himself is bound and he would have no right without paying for the first article to substitute an article which he saw later of the same kind and which he perhaps preferred.'
The approach of Boots provides 'a convenient method of enabling customers to see what there is and choose and possibly put back and substitute articles which they wish to have and then go up to the cashier and offer to buy what they have so far chosen.'
As a result, the case failed because the contract was concluded at the checkout where there was appropriate supervision.
Lord Justice Birkett
Lord Justice Birkett agreed with Lord Justice Somervill and with the reasoning of the Lord Chief Justice at trial.
Lord Justice Romer
Lord Justice Romer agreed with Lord Justices Somervill and Birkett. His Lordship noted that if the plaintiff's argument succeeded, 'if a person picked up an article, once having picked it up, he would never be able to put it back and say he had changed his mind. ... If that were the position in this shop and similar shops, and that position was known to the general public, I should imagine the popularity of those shops would wane a good deal.'
His Lordship rejected that argument, concluding that ' articles, even though they are priced and put in shops like this, do not represent an offer by the shopkeeper which can be accepted merely by the picking up of the article in question.'