The purpose of this article is two-fold. First, to analyze the policy rationale in holding display of goods as an invitation to treat, rather than an offer. Second, to examine whether statutes with criminal offences should be interpreted in light of the general law applicable to civil law matters.

For the purpose of the analysis, the case has been selected as the focal point of reference. The reason is, the case serves as a leading example to hold display of goods in a self-store as an invitation to treat and also engages with the interpretation provided to a criminal statute.

Facts:
In this case, medicines that did not require a doctor's prescription were displayed by Boots Cash Chemists on shelves for self-service by customers. A customer intending to purchase a medicine could pick the medicine and place it in a receptacle (container). After touring the shop, the customer could place goods from the receptacle at the cash desk (checkout counter) and outlay money for the purchase.

At the time, the Pharmacy and Poisons Act, 1933 (U.K.) (the Act), a statue in the United Kingdom made it unlawful to sell any poison listed in the Poison List, unless it was sold by an authorised seller of poisons at a registered premises and the sale was effected by or under the supervision of a registered pharmacist.

Two customers of Boots Cash Chemists purchased medicines which fell within the ambit of the Act. The Pharmaceutical Society of Great Britain, a regulatory body tasked with enforcing the provisions of the Act commenced legal proceedings against Boots Cash Chemists for violating the Act.

First Part:
Substitute Factor
An analogy was also drawn between display of books in a bookshop. Here, customers are free to pick up and inspect any book or read its back cover. Yet, they are not bound to purchase the book until they take it to the cash counter as request the shopkeeper to let them purchase it. An agreement is only formed when the shopkeeper says, yes, you can have it. This is when a contract is formed. This gives the customer the flexibility required to purchase what is desired or to put down a book he/she dislikes for another one. Such a system also allows the shopkeeper to refuse to sell for any reason.

To this, Mc Kendrick stated that, due to these reasons, one should not distinguish between the operation systems of a self-service store and a normal transaction shop[1]. The shopkeeper does not make an offer to sell any article in the shop to any person who steps in. I believe, the Main issue in treating display of goods as an offer is the Substitute factor. It is a general practice for customers to inspect the goods they need to buy, to collect several items and then shortlist the ones they want, to pick up items in order to read their ingredients (foodstuff) or other details.

If this was not the case, customers would not be able to estimate the quality of the product they desire and hence might not end up purchasing items. Once an item is picked up, the customer would be under a legal obligation to purchase even without the desire to do so. This would also act as a detriment to the seller. Due to lack of purchases, profits would reduce. Also, seller would be bound to sell any item in the shop to any person who enters the shop and picks up an item, even in cases where he is not willing to sell to that particular person.

Rule concluded
Display of goods in a store is an invitation to treat and not an offer. Meaning- When the customer says, I want this (offer is made), 999 out of 1,000 times the bookseller or the bookseller's assistant will say, That's alright (acceptance is communicated). The money changes hands (consideration) and the transaction is complete.

In case goods displayed in a shop window was constituted as an offer: In this case, even if goods displayed are an offer, the question arises as to what is acceptance? Here, the acceptance is complete, I believe, when goods are taken to the cash counter and the acceptance is communicated to the offeror (shopkeeper/representative).

If this is to be applied, it means that the sale in Boots took place at the cash counter and not when goods (non-dangerous medicines) were picked up. This suggests that no offence was committed under section 18. In Boots, the Court's ruling on what is constituted an offer and what is constituted as an acceptance is ideal and does not leave any scope for any varied judgement to be passed.

Reasons for treating display of goods as an invitation to treat and not an offer
Party freedom- freedom should be given to the shopkeeper to choose with whom he wants to contract. He should not be bound to sell to any person who comes into the store and picks up any number of articles. Main purpose can be considered that the acceptance must be delayed to a point where the customer is still deciding whether or not he wants to purchase the product(as buyer makes an offer and seller accepts it).

However, according to Richard Stone[2], this freedom can be used in a discriminatory sense. It allows the freedom to the shopkeeper to choose the customers he wants to contract with, wherein he/she can discriminate in terms or race, sex, caste, creed, gender, etc. In case of display in a shop window, it also allows the shopkeeper to change the price which had initially been on the price tag in the shop window. This increases the purchase price which benefits the shopkeeper.

Allowing customers to change their mind- as stated above, main aim is to allow substituting. Broadening the scope for customers to purchase as per their choice and requirement, so as to retain the benefit of buyer as well as sellers. However, in case of display of goods being treated as an offer, this is not essential. Because, if the goods are on display, there can be two actions which are done by the customer.

Either the customer states that he/she wants to buy the items displayed in the window (anyway retaining the choice and freedom of buyer as he wants only that particular product at that price) or the customer will state his interest in buying the product displayed and ask questions regarding it. This is a request for more information and not an acceptance. Here too, the interests of buyer are retained.

Therefore, it is not absolutely essential for display of goods in a shop window to be treated as an invitation to treat if the essence is to protect the buyer's interests. The court may have interpreted the willingness signified to another with a view to obtain assent differently. It could be that a display was an offer which was complete when the acceptor paid for the goods and the offer was available till stock lasts. In this way, the goods could have been considered an offer which was complete upon payment. The payment demonstrated acceptance.

Concluding this section
However, the policy rationale in the actual case favoured the seller. It was to protect to the seller from incurring multiple liability with every person who picked up the goods. However, taking the line of thought by McKendrick, the court may have interpreted the willingness signified to another with a view to obtain assent differently.

It could be that a display was an offer which was complete when the acceptor paid for the goods and the offer was available till stock lasts. In this way, the goods could have been considered an offer which was complete upon payment. The payment demonstrated acceptance. Also treating this case as an invitation to treat is not only supported by law but also by common sense and ordinary logic.

Second Part- Comparative Analysis:
Facts and Background
The facts of the case are similar to the facts of Fisher v. Bell[3]. The defendant shopkeeper displayed in his shop window a flick knife accompanied by a price ticket displayed just behind it. He was charged with offering for sale a flick knife, contrary to s. 1 (1) of the Restriction of Offensive Weapons Act 1959.

The issue in this case was whether the display of the knife constituted an offer for sale or an invitation to treat. Section 1(1) of the Restriction of offensive Weapons Act 1959 contained the words offer for sale and not exposing for sale. This implied that only an actual offer would be an illegal offense under this particular Act.

Therefore, it was concluded that the respondent (Bell) was not guilty. Here, the object who's display is argued upon is the knife (dangerous object), similarly in Boots the object who's display is argued upon are the medicines which are poisonous in nature (dangerous). The display of both was considered not to be an offense under the respective Acts, applying the rule; display of good in a store is an invitation to treat and not an offer. The buyer makes an offer when he brings the object to the cash counter, the seller accepts the offer thereupon.

Approach
In Fisher[4], the judge used the literal interpretation of the rule under Section 1(1) Restriction of offensive Weapons Act 1959-a flick knife cannot be manufactured, sold, hired, offered for sale or hire, lent or given to another person. The Act did not contain the activity of exposing for sale.

As the judge applied the literal rule, the exposing of goods did not seem to be an offense to him. It is evident that there is a loophole in the statute. It can be seen that the main aim of the Act was to prevent/reduce the possibility of any person to use a flick knife. The purpose here is to warn people that usage of a flick knife is dangerous in case of accidents and there will be a penalty on any such person who makes, encourages another to use it by lending, hiring, or selling this knife.

The purpose is the protection of the people from it. The mere fact that the Act did not include the word expose does not necessarily imply that shop owners, taking advantage of the rule of display of goods being an invitation to treat, can encourage people to purchase a flick knife by displaying it in a shop window. This too, goes against the intention and purpose of the Act. If the judges had used the purposive approach of interpretation, they would, I believe, arrive at a different conclusion.

The court should adopt an interpretation to avoid expanding the scope of the legislation to an unintended domain. Here, the courts did not dwell over the fact that the goods themselves were dangerous. It was a flick knife. However, what the courts did not do was consider the extent of the danger as they did in Pharmaceutical case. How dangerous- more or less was not considered.

Distinguishing Boots from Fisher
In Boots, Section 18(1) of the Pharmacy and Poisons Act, 1933 provided that:
It shall not be lawful:

1. for a person to sell any poison included in Part I of the Poisons List, unless:
   
   1. he is an authorized seller of poisons; and
   2. the sale is effected on premises duly registered under Part I of this Act; and
   3. the sale is effected by, or under the supervision of, a registered pharmacist

Here, On 13 April 1951 two customers purchased medicines which fell within the scope of the Act and the issue for the court was whether or not these sales were effected by or under the supervision of a registered pharmacist. Somervell LJ states that:
It is not disputed that in a chemist's shop where this self-service system does not prevail a customer may go in and ask a young woman assistant, who will not herself be a registered pharmacist, for one of these articles on the list, and the transaction may be completed and the article paid for, although the registered pharmacist, who will no doubt be on the premises, will not know anything himself of the transaction, unless the assistant serving the customer, or the customer, requires to put a question to him.[5]

Analysis
We emphasise on the fact that these drugs were not dangerous. They were substances which contain very small proportions of poison, and I imagine that many of them are the type of drug which has a warning as to what doses are to be taken. They are drugs which can be obtained, under the law, without a doctor's prescription.

If in case of self-service stores, if the rule stated that display of goods should be constituted as an offer, then Boots Cash Chemist would be liable under the Pharmacy and Poisons Act 1933 because- in such a a case; if the sale was made under the supervision of the pharmacist, the pharmacist could say, sorry, you cannot purchase this. This item contains poison(while the allegedely poisonous item is being picked up by the customer.

But, here, I believe the sale took place under the supervision of a pharmacist who was registered. The actual Rule applied in the current case clearly stated that display of goods is an invitation to treat. Therefore, sale is not effected when product is picked up by the customer.

The sale is not complete until the customer offers to purchase the product, offer is accepted by accepting the money and this whole transaction takes place under the supervision of a pharmacist. This is what exactly happens in the current case. Therefore, applying the literal approach of interpretation of Pharmacy and Poisons Act 1933, Boots Cash Chemist is not liable under the said Act.

Criminal law vs contract law
According to Roderick Munday, contractual rules are intended to regulate the mating ritual of offer and acceptance � often, it is said, because the shopkeeper impliedly reserves to himself a right of selecting his customer A shop is a place for bargaining, not for compulsory sales �[6], the aim of the Criminal Law.

But the criminal law often deviates from the interpretation laid down by the contract law and analyses the interpretation with its relevant language and that the courts can properly take account of mischief to which the statute is directed. The criminal law interpretation states that the main aim of the statute (Pharmacy and Poisons Act 1933) was to prohibit the sale of flick knives.

While criminal law focuses on the implied and analytical meanings of the statute, the contract law lays emphasis on the direct and man in the street's understanding of the expression. This interpretation is essentially legislative. Also, Denning LJ in Magor & St Mellons RDC v Newport Corp stated that it is the duty of the judge to fill in gaps left by the legislature (what criminal law portrays)

The judgement declared by the judge in the case of Pharmaceutical Society can be said to have been a naked usurpation of the law which was laid down in the disguise of interpretation. Criminal law and contract law pursue different objectives. But, when judges emphasise on the contractual and technical meaning of statutes, they fail to engage with the sole rationale and purpose of the statutes.

An intersection between criminal law and contract law according to Roderick Munday would be that, when a court encountered a statute which provided that anyone who offers for sale a flick knife was to be guilty of an offence, the obvious inference was that it was intended that, despite the fact that such a construction might diminish the effectiveness of the statute, this expression, unusual in the criminal context, was meant to bear its technical, contractual meaning.

When the words offer for sale are used, it provides a leeway to the shopkeepers to display the poisonous substances. This weakens the Act[7] as it takes away the sole purpose behind it. Therefore, it also gives the judges the capacity to emphasize on the technical meaning of the statute.

In the interpretation of the relevant language, the contract law notably diverges from the criminal law. The courts can also take an account of the mischief to which a statute is directed. As rightly stated by Roderick Munday, whereas the contractual rules are intended to regulate the mating ritual of offer and acceptance � often, it is said, because the shopkeeper impliedly reserves to himself a right of selecting his customer.

A shop is a place for bargaining, not for compulsory sales[8] ,the aim of the Criminal Law is to outlaw certain categories of transaction. As was pointed out in an annotation in the Criminal Law Review, in the principal case under review the object of the statutes was variously to prohibit the trade in flick knives. (fisher v. bell)

Extent to which Goods were dangerous
On the other hand, in Boot Cash Chemists carrying poisons was an offence under s. 18 Pharmacy and Poisons Act 1933 (U.K.). However, the interpretation adopted was more flexible since Somervell J considered the extent to which goods subject to the dispute were dangerous.

He found the goods in question were not dangerous drugs. He stated that, they were substances which contain very small proportions of poison, and I imagine that many of them are the type of drug which has a warning as to what doses are to be taken. They are drugs which can be obtained, under the law, without a doctor's prescription.

Therefore, he did not aim to interpret s. 18 and what may be included within its ambit. Rather, he adopted an approach which considered whether the goods in the dispute were dangerous or not. One could argue, the extent of danger posed by the goods may have led Somervell J to imply that a self-service system such as the one in Boot Cash Chemists was sufficient to meet the objective under the Poisons Act.

Degree of Supervision Required to Protect Public In Case Dangerous Medicines Being Displayed:
Evolution of Rule stated in Fisher v. Bell-After Lord Parker CJ's judgement, the Restrictions of Weapons Act 1959 was amended to form the Restriction of Weapons Act 1961 to include the term expose or has in possession for the purpose of sale or hire. I believe, this would retain the soul purpose of the Act as stated above. Therefore, if any person would keep a flick knife on display(expose) in a store, it would be constituted as an offer, thereby being an offence under Restriction of Weapons Act 1961.

As stated by Roderick Munday, statutes cannot list every offence within the ambit of every provision. It would be a never-ending writing process. It can be said that a statute with criminal offences ought to have been read to curb the offence of offering to sell. However, by reading the statute in light of civil law, the court may have subverted the meaning. What if the Parliament, while drafting the legislation, was thinking that it was the seller who was offering to sell through the display and may have thought to criminalise the seller.

After Fisher v Bell, there was clarity on invitation to treat and an offer. It was clearer that a display in a shop window was an invitation to treat because there was a business sense in the display. If offer to sell was treated differently in criminal context and civil context (offer by seller in criminal and offer by buyer in civil) then- there would be different set of rules for both.

These would be unwarranted. Instead, I feel, there should be a single set of rules which state the display of goods being either an invitation to treat or an offer. The interpretation would have been contradictory if taken to its logical conclusion and for no other reason but to give a strict interpretation to a statute with criminal implication.

Current Scenario:
Today, if an analogy was to be drawn between Boots and Fisher, display of medicines (dangerous) for sale in a self-service store would be constituted as exposing which is an offence. These medicines would be required to be kept behind the counter where there would be a constant supervision by a registered pharmacist on who purchases which kind of medicines.

The essence lies in the fact that the rule applies to only dangerous medicines which require supervision. In the current case, as Somervell LJ stated, the goods were less dangerous.[9]

Therefore, even today, applying the new Rule under Fisher, Boots Cash Chemist would still NOT be liable. Taking into consideration a different scenario (case where goods displayed (Medicines) were dangerous. The purpose of this Act is to protect people from wrong dosage or harmful use of such substances.

In case the dangerous medicines are kept on display and the pharmacist is available near the cash counter where a buyer will go to make the payment (where complete transaction takes place), there might be situations in which the medicines on display, even if a registered pharmacist is available at cash counter, could prove to be harmful.

For eg, if a person, not having much knowledge regarding a particular dangerous drug, picks it up from a rack and consumes it on the spot, or if a child, mischievously picks it up and throws it around or consumes too many tablets, or in case where the store is entered by a thief who secretly places them in his pocket and further makes harmful use of it, etc.

These conditions not necessarily but are likely to happen. A shop owner must reasonable foresee such situations and thereby, to avoid this and retain the purpose of the Pharmacy and Poisons Act 1933 (protection of people), must keep such dangerous drugs at a place where they will be under constant (possibility of mishap if supervision is lost for any amount of time, even a minute) supervision, like behind the counter.

Customers who require such drugs can, along with a doctors prescription, come to the counter and ask the shopkeeper who will further direct him/her to the pharmacist, or can directly go to the pharmacist and ask him for the drugs he requires. These precautions are necessary in case of DANGEROUS drugs, not for non- dangerous or less dangerous ones, as was the case in Boots Cash Chemist.

Therefore, if this case was to be based on the rule laid down in Fisher after the Amendment and application of Restriction of Weapons Act 1961, then displaying the goods only dangerous medicines, not less dangerous or non- dangerous drugs) on racks in the self service store and not behind the counter would make Boots Cash Chemist liable.

Closing Statements:
Firstly, a criminal statute should be wide enough, such that it does not coincide or oppose a contract law on similar lines. This is essentially to retain the sole purpose of the criminal statute. Secondly, the display of goods is an invitation to offer and once you give cashier the money, it is an offer.

This offer is further accepted when the cashier accepts the payment. After viewing all angles and possibilities of happenings in the case of Pharmaceutical Society of Great Britain v. Boots Cash Chemist, I would abide by the judgement given by Somervell LJ as all scenarios directed the Boots Cash Chemist to be held not liable.

References:

• Pharmaceutical Society of Great Britain v. Boots Cash Chemists [1953] 1 QB 401
• Fisher v Bell [1961] 1 QB 394
• Ewan McKendrick, Contract Law: Texts, Cases, and Materials, 5th Edition (Oxford University Press), pages 63, 64, 65.
• Roderick Munday, Fisher v Bell Revisited: Misjudging the Legislative Craft, (March 2013)
• The Modern Law of Contracts by Richard Stone, The Modern Law of Contracts, (pages 40 and 41)
• Nilima Bhadbhade, Pollock & Mulla Indian Contract and Specific Relief Acts, 14th Edition (Lexis Nexis Butterworths Wadhwa) Pages 38- 41, Pages 178-183

End-Notes:

1. Ewan McKendrick, Contract Law: Texts, Cases, and Materials, 5th Edition (Oxford University Press
2. The Modern Law of Contracts by Richard Stone, The Modern Law of Contracts, (pages 40 and 41)
3. Fisher v Bell [1961] 1 QB 394
4. Fisher v Bell [1961] 1 QB 394
5. Pharmaceutical Society of Great Britain v. Boots Cash Chemists [1953] 1 QB 401
6. Roderick Munday, Fisher v Bell Revisited: Misjudging The Legislative Craft, (March 2013)
7. Pharmacy and Poisons Act,1933.
8. Roderick Munday, Fisher v Bell Revisited: Misjudging The Legislative Craft, (March 2013)
9. Pharmaceutical Society of Great Britain v. Boots Cash Chemists [1953] 1 QB 401

Award Winning Article Is Written By: Ms.Shriya S. Patil

Authentication No: SP125838641124-15-0921