Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd. [1953] EWCA Civ 6 (05 February 1953)

Boots introduced a self-service pharmacy system. The Pharmaceutical Society argued sales of controlled drugs were unsupervised and thus illegal. The court held that displaying goods is an invitation to treat, not an offer. The contract is formed at the till under pharmacist supervision, making it lawful.

Facts

The defendants, Boots Cash Chemists (Southern) Ltd., implemented a new self-service system in one of their shops. Customers would select items from shelves, place them in a wire basket, and take them to a cashier’s desk to pay. One section of the shop contained drugs on the Poisons List in Part I of the Pharmacy and Poisons Act 1933. This area was under the supervision of a registered pharmacist, who was authorised to prevent the removal of any drug from the premises. The Pharmaceutical Society of Great Britain, the plaintiffs, brought a test case alleging that this system contravened section 18(1)(a)(iii) of the 1933 Act, which required the sale of such poisons to be ‘effected by, or under the supervision of, a registered pharmacist’.

Issues

The central legal issue was to determine the precise point at which the contract of sale was concluded. The appellants (the Pharmaceutical Society) argued that the display of goods on the shelves was an offer to sell, which a customer accepted by taking an article and placing it in their basket. If this were the case, the sale would occur at that moment, without the required supervision of a pharmacist. The respondents (Boots) contended that the display of goods was merely an invitation to treat. The customer made an offer to buy when they presented the items at the cashier’s desk, and this offer was then accepted by the cashier under the pharmacist’s supervision. The legality of the self-service system hinged on which of these interpretations the court accepted.

Judgment

The Court of Appeal unanimously dismissed the appeal, upholding the judgment of the Lord Chief Justice in the Divisional Court. The judges held that the display of goods in a self-service shop was an invitation to treat, not an offer.

Somervell L.J.

Somervell L.J. reasoned that the appellant’s interpretation was commercially inconvenient and contrary to common sense. He stated that if the taking of goods was an acceptance of an offer, the customer would be bound to their purchase at that moment and would not be able to change their mind and return the item to the shelf. He drew an analogy with a standard shop:

In the case of 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.

He concluded that the contract was completed when the customer’s offer to buy was accepted by the defendants at the cash desk, and the sale was therefore supervised as required by the Act.

Birkett L.J.

Birkett L.J. agreed, emphasizing the established legal principle that the display of goods is an invitation to the public to make an offer. He considered the pharmacist’s role critical:

The very fact that the supervising pharmacist is at the place where the money has to be paid is an indication that the purchaser may or may not be assented to by the person in charge of the shop.

He concluded that the transaction was in no way different from a normal shop, where the customer brings items to the counter and the shopkeeper accepts their offer to buy.

Romer L.J.

Romer L.J. also agreed, finding the argument for the defendants to be correct. He affirmed the reasoning of the Lord Chief Justice in the court below, quoting him directly:

the customer makes an offer to buy, and there is no sale effected until the buyer’s offer to buy is accepted by the acceptance of the price.

Romer L.J. held that the mere fact a customer picks up an article does not amount to an acceptance of an offer to sell. The offer is made by the customer at the till, and the pharmacist’s presence and authority to accept or reject that offer constituted the necessary supervision under the Act.

Implications

This case is a landmark authority in English contract law, establishing the principle that the display of goods for sale in a shop is an invitation to treat, not a binding offer. The offer is made by the customer when they present the goods for payment, and the contract is formed only when the retailer accepts that offer. This decision was fundamental to the legal validation of modern self-service retail models, such as supermarkets, as it clarified that retailers retain the right to refuse a sale up until the point of payment. It protects both the retailer’s freedom of contract and the customer’s ability to change their mind before purchase.

Verdict: The appeal was dismissed. The court affirmed the lower court’s decision, finding that the defendants had not committed an offence under the Pharmacy and Poisons Act 1933.

Source: Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd. [1953] EWCA Civ 6 (05 February 1953)