Partridge v Crittenden [1968] 1 WLR 1204 (DC)

Mr Partridge advertised wild birds for sale in a magazine. He was charged with offering for sale a bramblefinch contrary to the Protection of Birds Act 1954. The court held the advertisement was merely an invitation to treat, not an offer for sale, establishing that advertisements are generally invitations to treat.

Facts

On 13 April 1967, an advertisement placed by the appellant, Arthur Robert Partridge, appeared in the periodical ‘Cage and Aviary Birds’ under ‘Classified Advertisements’. The advertisement included the words ‘Quality British A.B.C.R. … Bramblefinch cocks, Bramblefinch hens 25s. each.’ Notably, nowhere in the advertisement were the words ‘offer for sale’ used.

Mr Thompson wrote to Partridge requesting a bramblefinch hen and enclosed a cheque for 30 shillings. On 1 May 1967, Partridge dispatched a brambling wearing a closed ring to Thompson. Upon receipt, Thompson was able to remove the ring from the bird’s leg without injury.

Partridge was charged by Anthony Ian Crittenden, on behalf of the RSPCA, with illegally offering for sale a live wild bird which was not a close-ringed specimen bred in captivity, contrary to section 6(1) and Schedule 4 of the Protection of Birds Act 1954. The Chester magistrates convicted Partridge, finding that the advertisement constituted an offer for sale. He was fined £5 with costs.

Issues

The principal legal issue was whether the appellant’s advertisement constituted a legitimate ‘offer for sale’ within the meaning of section 6(1) of the Protection of Birds Act 1954, or whether it was merely an invitation to treat.

A secondary issue concerned whether the bird was a ‘close-ringed specimen bred in captivity’ under the Act if the ring could be removed from its leg.

Judgment

Ashworth J

Ashworth J delivered the leading judgment, addressing first the question of whether the bird was ‘close-ringed’. He explained that a close-ringed bird is one ringed by a complete ring which cannot be forced apart or broken. He accepted that the justices could reasonably conclude the bird was not a close-ringed specimen because the ring could be removed.

However, on the central question of whether the advertisement constituted an ‘offer for sale’, Ashworth J applied the principle from Fisher v Bell:

The words are the same here ‘offer for sale’, and in my judgment the law of the country is equally plain as it was in regard to articles in a shop window, namely that the insertion of an advertisement in the form adopted here under the title ‘Classified Advertisements’ is simply an invitation to treat.

He noted that while the prosecution could have charged Partridge with selling or having in possession for sale (both of which could have succeeded), they chose instead to charge him with ‘offering for sale’, which could not be established given that the advertisement was an invitation to treat, not an offer.

Ashworth J rejected the suggestion that criminal courts should take a stricter interpretation of ‘offer for sale’ than contract law courts, quoting the principle that doing so would be:

a naked usurpation of the legislative function under the thin disguise of interpretation.

Lord Parker CJ

Lord Parker CJ agreed, stating:

I agree and with less reluctance than in Fisher v. Bell, and Mella v. Monahan. I say ‘with less reluctance’ because I think when one is dealing with advertisements and circulars, unless they indeed come from manufacturers, there is business sense in their being construed as invitations to treat and not offers for sale.

He cited Lord Herschell in Grainger & Son v Gough regarding price-lists:

The transmission of such a price-list does not amount to an offer to supply an unlimited quantity of the wine described at the price named, so that as soon as an order is given there is a binding contract to supply that quantity. If it were so, the merchant might find himself involved in any number of contractual obligations to supply wine of a particular description which he would be quite unable to carry out, his stock of wine of that description being necessarily limited.

Lord Parker concluded that not only is this the law, but common sense supports it.

Blain J

Blain J concurred with both judgments.

Implications

This case reinforced the established principle from Fisher v Bell that advertisements in newspapers or periodicals generally constitute invitations to treat rather than offers for sale. The distinction has significant practical implications: an invitation to treat invites others to make offers, whereas an offer, once accepted, creates a binding contract.

The case is of particular importance because it demonstrates that this principle applies not only to shop window displays but also to classified advertisements. Lord Parker CJ’s reasoning that there is ‘business sense’ in this interpretation highlights the commercial rationale: advertisers could otherwise find themselves contractually bound to supply goods beyond their available stock.

The decision also illustrates the importance of precise charging in criminal prosecutions, as the prosecution’s choice to charge ‘offering for sale’ rather than ‘selling’ or ‘having in possession for sale’ ultimately resulted in the conviction being quashed.

Verdict: Appeal allowed; conviction quashed. The advertisement constituted an invitation to treat, not an offer for sale, and therefore the offence under section 6(1) of the Protection of Birds Act 1954 was not established.

Source: Partridge v Crittenden [1968] 1 WLR 1204 (DC)