Fisher v Bell [1961] 1 QB 394

A shopkeeper displayed a flick knife in his shop window with a price ticket. He was prosecuted for “offering for sale” an offensive weapon contrary to section 1(1) of the Restriction of Offensive Weapons Act 1959. The Divisional Court held that, applying the ordinary law of contract, the display of goods in a shop window is merely an invitation to treat, not an offer for sale, and accordingly no offence had been committed.

Facts

The defendant, Mr Bell, was the owner of Bell’s Music Shop in the Broadmead area of Bristol. He displayed a flick knife in his shop window alongside a ticket bearing the words “Ejector knife — 4s” (four shillings).

A police officer observed the display, took the knife away to show his superintendent, and later returned to inform Mr Bell that he would be prosecuted. Mr Bell responded “Fair enough.”

The defendant was charged under section 1(1) of the Restriction of Offensive Weapons Act 1959, which provided:

“Any person who manufactures, sells or hires or offers for sale or hire, or lends or gives to any other person — (a) any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a ‘flick knife’ or ‘flick gun’ … shall be guilty of an offence …”

At first instance before the Bristol Justices, the prosecution submitted that the display of the knife with a price ticket, with the object of attracting a buyer, constituted an “offer for sale” within section 1(1). The defence submitted that the display was a mere invitation to treat. The magistrates accepted the defence’s submission and dismissed the information. The prosecutor appealed by way of case stated to the Divisional Court.

Issues

1. Whether the display of a flick knife in a shop window, accompanied by a price ticket, constituted “offering for sale” within the meaning of section 1(1) of the Restriction of Offensive Weapons Act 1959.
2. More broadly, whether the statutory words “offer for sale” – undefined in the Act — should be construed in accordance with the general law of contract, or given a broader meaning consistent with the legislative purpose of restricting the trade in offensive weapons.

Judgment

The Divisional Court (Lord Parker CJ, Ashworth and Elwes JJ) dismissed the prosecutor’s appeal.

The Ordinary Law of Contract

Lord Parker CJ held that the statutory words “offer for sale” must be construed in accordance with the general law of contract, in the absence of any contrary indication in the statute. He stated (at 399):

“It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.”

The display of the knife was therefore an invitation to treat. The offer, in contractual terms, would be made by the customer presenting the item with payment, and acceptance would occur when the shopkeeper took that payment. On that analysis, Mr Bell had not “offered” the knife for sale at all.

The Statutory Construction Argument

Lord Parker CJ acknowledged that to “lay people” the display of a knife in a window might well appear to be an offer inviting people to buy it, and that it might seem “nonsense to say that [it] was not offering it for sale”. Nevertheless, whether an item was “offered” for the purposes of the statute had to be construed in the context of the general law of the country, which clearly established that a display was only an invitation to treat.

His Lordship reinforced this conclusion by reference to the drafting of comparable statutes. Other legislation prohibiting the sale of weapons and similar items used the phrase “offering or exposing for sale” (emphasis added). The absence of the words “exposing for sale” from the 1959 Act, applying the principle inclusio unius est exclusio alterius, suggested that Parliament had intended only a true offer (in the contractual sense) to be caught by the Act. Earlier cases such as Keating v Horwood [1926] (concerning a baker’s van) and Wiles v Maddison [1943] were distinguished on the basis that they had concerned statutes using the wider “exposing for sale” formulation.

Refusal to Rectify the Drafting Error

Lord Parker CJ declined to remedy what was, in effect, a legislative oversight. He applied what has since been treated as the classic statement of the literal rule of statutory interpretation: where the language of the statute is clear, the court will not strain the words to fill a gap, even if the result appears to frustrate the evident purpose of the legislature. The appeal was dismissed.

Implications

The Contractual Principle

Fisher v Bell is a foundational authority in English contract law on offer and acceptance. It confirms that the display of goods in a shop window (or on a shelf) with a price ticket is an invitation to treat, not an offer. The contractual offer is made by the customer when he presents the goods at the till, and acceptance occurs when the shopkeeper (or cashier) accepts payment.

This principle sits alongside, and is consistent with, Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401, which applied the same analysis to goods displayed on shelves in a self-service shop. Both cases have been repeatedly applied in subsequent authority as establishing the orthodox contractual analysis of retail transactions.

The Statutory Interpretation Principle

The case is equally well known as an illustration of the literal rule of statutory interpretation. Where statutory language is clear, the court will not depart from the ordinary legal meaning of the words to remedy an apparent drafting error, even where the result defeats the evident purpose of the legislation. Fisher v Bell has been cited in this context alongside authorities such as The Queen v The Judge of the City of London Court [1892] 1 QB 273 (per Lord Esher MR at 290), Vacher & Sons Ltd v London Society of Compositors [1913] AC 107 (per Lord Atkinson at 121), Duport Steels Ltd v Sirs [1980] 1 WLR 142 (per Lord Diplock at 157) and Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 for the proposition that the court should not seek to rectify legislative anomalies where the statutory language is clear.

The case also illustrates the principle, subsequently relied on in a number of later decisions, that technical words drawn from the law of contract (such as “sells”, “offers for sale” or “buys”) will prima facie be given their ordinary contractual meaning when used in a statute, unless a contrary statutory meaning can be found by looking at other provisions of the Act. This approach has been applied in cases such as Partridge v Crittenden [1968] 1 WLR 1204 (advertisement of goods as an invitation to treat) and Leicester v Balfour Williamson [1953] 2 QB 168, each of which treats the civil law analysis of the transaction as decisive for statutory purposes.

Legislative Response

Parliament responded to the decision almost immediately. The Restriction of Offensive Weapons Act 1961, section 1, amended the 1959 Act to add to the offence the words “or exposes or has in his possession for the purpose of sale or hire”. That amendment remains the law, and a shopkeeper in Mr Bell’s position today would be successfully prosecuted. Similar drafting omissions were addressed by the courts in Partridge v Crittenden [1968] 1 WLR 1204 and British Car Auctions Ltd v Wright [1972] 1 WLR 1519.