Case Facts
The defendants operated a self-service chemist's shop in Edgware. Upon entering, customers were given a wire basket, selected goods from shelves displayed throughout the shop, and had to pass through one of two exits, each fitted with a cash desk staffed by a cashier. A printed notice at the entrance described the premises as "Boots Self-Service".
Within the chemist's department, a dedicated section of shelves was reserved exclusively for drugs included in Part I of the Poisons List under s 17(1) of the Pharmacy and Poisons Act 1933. This section was fitted with a shutter so that all articles could be securely enclosed and excluded from public display when required. None of the drugs on those shelves fell within Schedule I to the Poisons Rules 1949. A registered pharmacist was stationed near the poisons section with his certificate of registration conspicuously displayed and in view of the cash desks. In every case involving the sale of a drug, the pharmacist supervised the relevant part of the transaction at the cash desk and was expressly authorised by the defendants to prevent any customer from removing any drug from the premises at that stage.
On 13 April 1951, two customers purchased the following substances at the cash desk: (1) compound syrup of hypophosphites containing 0.01% w/v strychnine, and (2) famel syrup containing 0.23% w/v codeine. Both were poisons included in Part I of the Poisons List, but by reason of their low concentrations did not come within Schedule I to the Poisons Rules 1949.
The relevant statutory provision was s 18(1)(a)(iii) of the Pharmacy and Poisons Act 1933, which makes it unlawful to sell any poison included in Part I of the Poisons List unless the sale is effected by, or under the supervision of, a registered pharmacist. The Pharmaceutical Society, as the regulatory body for the pharmacy profession, brought proceedings arguing that the defendants had violated this provision. The Society contended that the self-service system constituted an offer to sell by the defendants, and that the customer's act of selecting an article from the shelf and placing it in the basket amounted to an acceptance, thereby concluding the contract at the point of selection — before any supervision by the pharmacist at the cash desk.
At first instance, the question was answered in favour of the defendants by the trial judge, who held that the sales had indeed been effected under pharmacist supervision. The Pharmaceutical Society appealed.
Held
The Court of Appeal dismissed the appeal and affirmed the decision at first instance. The defendants' counsel were not called upon to argue, indicating that the Court was satisfied, after hearing only the appellant's submissions, that the appeal should be dismissed.
The Court held that the self-service system did not constitute an offer to sell by the defendants. Rather, the display of goods on the shelves amounted to no more than an invitation to treat — an invitation to customers to select goods and bring them to the cash desk. The customer's act of presenting the basket of goods at the cash desk constituted the offer to buy, and that offer was accepted by the cashier on behalf of the defendants at the cash desk. Because the contract was formed at the cash desk, and the registered pharmacist was stationed in view of and supervising the cash desk transactions, the sales were effected under the supervision of a registered pharmacist within the meaning of s 18(1)(a)(iii) of the Pharmacy and Poisons Act 1933. There was accordingly no infringement of the statute.
Ratio Decidendi
The ratio of this case rests on two propositions that are closely intertwined.
First, the display of goods on shelves in a self-service shop does not constitute an offer capable of acceptance by a customer. It is instead an invitation to treat. The offer to purchase is made by the customer when presenting the goods at the cash desk, and the contract is only concluded when that offer is accepted by the seller's cashier. This principle directly parallels the earlier decision in Fisher v Bell [1961], where the display of a flick-knife in a shop window was similarly held to be an invitation to treat rather than an offer for sale under criminal statute, and is consistent with the general principle illustrated in Partridge v Crittenden [1968] concerning advertisements.
Second, the ratio provides an important justification for this rule: if the display of goods were treated as the offer, then the moment a customer placed an article in a basket, a binding contract would be formed, leaving the seller with no right to refuse. This would produce commercially absurd results — for instance, a shop could not correct pricing errors or refuse to sell goods to minors. By locating the acceptance at the cash desk, the seller retains the right to decline the transaction at that point.
In the specific context of pharmaceutical regulation, this analysis meant that the supervision required by s 18(1)(a)(iii) of the Pharmacy and Poisons Act 1933 was satisfied, because the pharmacist was present and authorised to intervene at the very moment the contract came into being — at the cash desk. The arrangement was therefore lawful.
Obiter Dicta
Not applicable.