Reading a Case Exercise 2
[1952] 2 All ER 456
Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern)Ltd
QUEEN'S BENCH DIVISION
LORD GODDARD CJ
16 JULY 1952
Poison - Sale by retail - Sale by or under supervision of registered pharmacist - Chemist's "self-service" shop - Pharmacist supervising transaction at time of payment - Pharmacy and Poisons Act, 1933 (c 25), s 18(1)(a) (iii).
A chemist's self-service" shop comprised a single room with shelves
round the walls and on an "island" fixture on which were stocked
drugs and proprietary medicines which were specified in Part I of the
Poisons List compiled under s 17(1) of the Pharmacy and Poisons Act,
1933, in packages and other containers with the prices marked on them.
A customer entering the shop took a wire basket, selected the articles
he required from the shelves, put them in the basket, and carried them
to the cashier at one of the two exits. The cashier scrutinised the articles,
stated the total price, and accepted payment, a registered pharmacist
employed by the chemist supervising the transaction at this stage and
being authorised to prevent any customer from removing any article if
he thought fit.
Held - The taking of the articles from the shelves constituted an offer by the customer to buy and not the acceptance by him of an offer by the chemist to sell, and the sale was, therefore, completed on the acceptance of the price which took place "under the supervision of a registered pharmacist" as required by s 18(1)(a)(iii) of the Pharmacy and Poisons Act, 1933.
Notes
For the Pharmacy and Poisons Act, 1933, s 18(1)(a)(iii), see Halsbury's
Statutes, Second End, Vol 15, p 276.
Case referred to in judgment
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256, 62 LJQB 257,
67 LT 837, 57 JP 325, 12 Digest, Replacement, 59, 323.
Special Case
Special Case stated by the parties under RSC, Ord 34, r 1, in an action by the plaintiffs for a declaration that sales of poisons made by the defendants at their premises at 73, Burnt Oak Broadway, Edgware, in the county of Middlesex, on 13 April 1951, were effected otherwise than by or under the supervision of a registered pharmacist as required by s 18(1)(a)(iii) of the Pharmacy and Poisons Act, 1933.
The defendants carried on a business of retail sellers of drugs at their shop premises at 73, Burnt Oak Broadway, Edgware, which were entered in the register of premises kept under s 12(1) of the Act of 1933. The premises comprised a single
[1952] 2 All ER 456 at 457
room so adapted that customers might serve themselves. There was accommodation for some sixty customers at one time, and a printed notice displayed at the entrance described the business as "Boots Self Service". The principal part of the room contained shelves round the walls and on an "island" fixture in the centre, one part being described on a printed notice as "Toilets dept" and the other part as "Chemist's dept." On the shelves in the chemist's department drugs, including proprietary medicines, were displayed in packages or other containers with a conspicuous indication of the retail price of each. The drugs and proprietary medicines covered a wide range and one section was devoted exclusively to drugs, including proprietary medicines, which were included in or contained substances included in Part I of the Poisons List referred to in s 17(1) of the Act of 1933. No such drugs were displayed on any shelves outside the section and a shutter was fitted to the section so that at any time all the articles in the section could be securely enclosed and excluded from display. None of the drugs came within sched I to the Poisons Rules, 1949 (SI, 1949, No 539). The staff employed at the premises comprised a manager, a registered pharmacist in personal control of the chemist's department subject to the directions of a superintendent in accordance with s 9(1)(b) of the Act, three assistants, and two cashiers. When the premises were open for the sale of goods the manager, the pharmacist, and one or more assistants were present in the room. A customer entering the premises would pick up an empty wire basket at a barrier, select from the shelves the packages or other containers of drugs and proprietary medicines required, put them in the wire basket, and take them to one of the two exits. At each exit one of the cashiers under the supervision of the pharmacist scrutinised the articles selected, told the customer the total price, and accepted payment. The pharmacist supervised that part of every transaction involving the sale of a drug which took place at the cash desk and was authorised by the defendants at that stage, if he thought fit, to prevent any customer from removing any drugs from the premises. Customers were not informed of this authorisation. On 13 April 1951, two customers purchased respectively a bottle of medicine known as compound syrup of hypophosphites, containing 0.01 per cent W/V strychnine, and a bottle of Famel syrup, containing 0.023 per cent W/V codeine, both being poisons included in Part I of the Poisons List, but, owing to the small percentage of strychnine and codeine, not coming within the Poisons Rules, 1949, sched I. They followed the procedure outlined.
The question for the opinion of the court was whether each sale was effected by or under the supervision of a registered pharmacist in accordance with s 18(1)(a)(iii) of the Pharmacy and Poisons Act, 1933.
Lloyd-Jones QC and T Dewar for the plaintiffs.
Glyn-Jones QC and Everington for the defendants.
16 July 1952. The following judgment was delivered.
LORD GODDARD CJ.
This is a Special Case stated under RSC, Ord 34, r 1, and agreed between the parties and it turns on s 18(1) of the Pharmacy and Poisons Act, 1933, which provides:
"Subject to the provisions of this Part of this Act, it shall not be lawful--(a) for a person to sell any poison included in Part I of the Poisons List, unless--(i) he is an authorised seller of poisons; and (ii) the sale is effected on premises duly registered under Part I of this Act; and (iii) the sale is effected by, or under the supervision of, a registered pharmacist."
The defendants have adopted what is called a "self-service" system
in some of their shops--in particular, in a shop at 73, Burnt Oak Broadway,
Edgware. The system of self-service consists in allowing persons who
resort to the shop to go to shelves where goods are exposed for sale
and marked with the price. They take the article required and go to the
cash desk, where the cashier or assistant sees the article, states the
price, and takes the money. In the part of the defendants' shop which
is labelled "Chemist's dept" there are on certain
[1952] 2 All ER 456 at 458
shelves ointments and drugs, some of which contain poisonous substances but in such minute quantities that there is no acute danger. These substances come within Part I of the Poisons List, but the medicines in the ordinary way may be sold without a doctor's prescription and can be taken with safety by the purchaser. There is no suggestion that the defendants expose dangerous drugs for sale. Before any person can leave with what he has bought he has to pass the scrutiny and supervision of a qualified pharmacist.
The question for decision is whether the sale is completed before or after the intending purchaser has paid his money, passed the scrutiny of the pharmacist, and left the shop, or, in other words, whether the offer out of which the contract arises is an offer of the purchaser or an offer of the seller.
In Carlill v Carbolic Smoke Ball Co a company offered compensation to anybody who, having used the carbolic smoke ball for a certain length of time in a prescribed manner, contracted influenza. One of the inducements held out to people to buy the carbolic smoke ball was a representation that it was a specific against influenza. The plaintiff used it according to the prescription, but, nevertheless, contracted influenza. She sued the Carbolic Smoke Ball Co for the compensation and was successful. In the Court of Appeal Bowen LJ said ([1893] 1 QB 269):
"... there can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification."
Counsel for the plaintiffs says that what the defendants did was to invite
the public to come into their shop and to say to them: "Help yourself
to any of these articles, all of which are priced", and that that
was an offer by the defendants to sell to any person who came into
the shop any of the articles so priced. Counsel for the defendants,
on the other hand, contends that there is nothing revolutionary in
this kind of trading, which, he says, is in no way different from the
exposure of goods which a shop-keeper sometimes makes outside or inside
his premises, at the same time leaving some goods behind the counter.
It is a well-established principle that the mere fact that a shop-keeper
exposes goods which indicate to the public that he is willing to treat
does not amount to an offer to sell. I do not think I ought to hold
that there has been here a complete reversal of that principle merely
because a self-service scheme is in operation. In my opinion, what
was done here came to no more than that the customer was informed that
he could pick up an article and bring it to the shop-keeper, the contract
for sale being completed if the shop-keeper accepted the customer's
offer to buy. The offer is an offer to buy, not an offer to sell. The
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
informed that the shop-keeper is willing to complete the contract.
One has to apply common sense and the ordinary principles of commerce
in this matter. If one were to hold that in the case of self-service
shops the contract was complete directly the purchaser picked up the
article, serious consequences might result. The property would pass
to him at once and he would be able to insist on the shop-keeper allowing
him to take it away, even where the shop-keeper might think it very
undesirable. On the other hand, once a person had picked up an article,
he would never be able to put it back and say that he had changed his
mind. The shop-keeper could say that the property had passed and he
must buy.
It seems to me, therefore, that it makes no difference that a shop is
a self-service shop and that the transaction is not different from the
normal transaction
[1952] 2 All ER 456 at 459
in a shop. The shop-keeper is not making an offer to sell every article in the shop to any person who may come in, and such person cannot insist on buying by saying: "I accept your offer". Books are displayed in a bookshop and customers are invited to pick them up and look at them even if they do not actually buy them. There is no offer of the shop-keeper to sell before the customer has taken the book to the shop-keeper or his assistant and said that he wants to buy it and the shop-keeper has said: "Yes." That would not prevent the shop-keeper, seeing the book picked up, from saying: "I am sorry I cannot let you have that book. It is the only copy I have got, and I have already promised it to another customer". Therefore, in my opinion, the mere fact that a customer picks up a bottle of medicine from a shelf does not amount to an acceptance of an offer to sell, but is an offer by the customer to buy. I feel bound also to say that the sale here was made under the supervision of a pharmacist. There was no sale until the buyer's offer to buy was accepted by the acceptance of the purchase price, and that took place under the supervision of a pharmacist. Therefore, judgment is for the defendants.
Judgment for the defendants.
Solicitors: A C Castle (for the plaintiffs); Masons (for the defendants).
F A Amies Esq Barrister.