【学习课件】第一篇货物买卖法lec-7(上)交易磋商程

1、2-4.5 合同的形式 （form）4.5.1合同的形式与各种类似合同形式4.5.2要约与承诺的形式与合同成立的关系4.5.3合同的形式与合同成立的关系 4.5.4合同格式战 编辑课件4.5.1合同的形式与各种类似合同形式As the different forms of offer and acceptance the contract forms could be as well as follows:A. oral contractB. written contractC. contract in actionD. electronic contract编辑课件A. oral form

2、of contract It is formulated through language. - Vis-a-vis negotiation - negotiation through telephone or MSN phoning system编辑课件B. written contract a. legal significance of contract in writing form -judicially It provides evidence of the contract;-practically, it provides clearly memorable and under

3、standable obligations ;- certain laws request contract in writing form UCC : the amount of contract for sale of goods over $500Chinese law: sale of real estate. 编辑课件b. commercial documents similar to written contractThose similar document include: (1). memo(备忘录); (2). general agreement（原则协议书）;(3). l

4、etter of intent (意向书);(4). preliminary agreement (初步协议书).编辑课件（1）. memo (备忘录)-a record of negotiation, -non-legal document（2）. general agreement (原则性协议)a legal document but it needs to be further detailed in order to be workable. 编辑课件（3）. letter of intent (意向书) A document where one party gives a stro

5、ng indication to the other that he is likely to place a contract with him. Usually it is worded not to create legal obligation，However，in some cases, it may be phrased to include a invitation to commence a preliminary work, In such circumstance, it creates an obligation. 编辑课件（4） preliminary agreemen

6、t (初步协议)preliminary agreement often occurs where the negotiation takes months or even years, for instance, negotiation for joint venture or technology transfer or investment .It may well happen that the negotiators have entered into a preliminary agreement without being conscious of it. 编辑课件Furtherm

7、ore, the parties intention not to create legally binding relation does not produce the same consequences under all legal systems. For example, under French law, the principle of consensualism(协商一致) implies that a contract is concluded when a party demonstrates the existence of a meeting of minds, wi

8、thout any further condition being required. Comment：French law intends to explore the existence of the contract form what the parties are thinking, rather than from what they have expressed out. (the construction of contract)Thus, the oral contract becomes more judicially practical.编辑课件This sort of

9、rule of French law applies to any contract including Preliminary agreement and thus lead to the contractual obligation simply because , in the course of discussion, they have expressed an agreement on certain points. So the negotiators need to be externally watchful for situations that create uninte

10、nded legal obligations The best way to prevent such situation from happening is :discuss编辑课件C. contract in actionIt is also called 事实合同 in Chinese terminology. The type of contract is formulated through actions of both parties ,rather than by language or by writing. E.g. the case of letter of intent

11、 above mentioned. 编辑课件D. electronic contract (电子合同形式)The recent development of e-commercea. the standard business message that are being developed for both national and international trade.b. standard procedure being introduced between seller, buyer ,trade-related services, customs, etc to support t

12、he implementation of the massage. 编辑课件c. the hardware ,software, and network services required are not restricted to national boundaries and should not need to be altered for communication with parties abroad. d. language independence is built in through the use of UN data elements and international

13、 code sets- e.g. Terms of payments and deliveries, harmonized coding system for commodities and services, codes for identifying the parties and location ,etc.e. the reduction of paperwork is required in cross-board trade.编辑课件The benefits of e-commerce E-commerce (1). it creates high management by qu

14、ickening decision-making process and facilitating easy-to use system for management data analysis (2). it provides accuracy, speed and efficiency(3).it raises the organizations international profile and access.(4).it makes the cost more effectiveFailure to become involved in E-commerce will result i

15、n businesses or companies no longer being competitive in the future marketplace. 编辑课件The web-based or electronic or online business(B2C/B2B) creates a new category of contract.However, on the whole, the website sales activities on the internet are largely unregulated since the law is still in its in

16、fancy. 编辑课件Noticeable issuess for formation of electronic contract under common lawIn writing form : It provides evidence of the terms of contractSigned: some legislations, e.g. UK and China , have given legal effect to digital signatureTiming of acceptance: the post rule ,with any problems arising

17、from it, probably applies, although the point has not been tested.Because internet e-mail shares many qualities of conventional Mail ,which is not absolutely instantaneous and may be subject to delayConsideration: the internet is largely insecure, this may cause problems when it comes to payment .编辑

18、课件practical legal issues faced by the seller and buyer when negotiating online (7 issues)1.Website should be construed as shop windows, that is ITT rather than offers2.Terms and conditions governing electronic transactions should be made explicitly and clearly 3.An indication of interest by a purcha

19、ser visiting the website should be understood by both parties to be an offer , not an acceptance, which the seller then is free to accept or reject.编辑课件4.The law and jurisdiction governing the transaction should be made clear 5.The seller should make sure that any web pages do not contravene local l

20、aws (for example, those relating to advertising standard) in the countries targeted 6.Seller can continue to use disclaimers of liabilities, clearly displayed on the website, subject to usual customer protection laws on unfair terms7.A time limit should be set for all offers made on the website, whi

21、ch should take account of potential delays in receiving email.编辑课件 4.5.2要约与承诺形式与合同成立的关系要约/承诺的形式与合同形式图表 要约当面谈判、电话信/电报/传真/电邮行为口头书面行为承诺当面电话口头口头合同书面合同？口头合同？信、电报传真电邮书面书面合同？书面合同书面合同？行为行为 事实合同(法理是:事实合同的特点是合同的成立与合同的履行在同一个时间)编辑课件4.5.3合同的形式与合同成立的关系在通常情况下，合同具备法定形式后合同成立，但有时合同在形式上的缺陷并不影响合同的成立，我国法律似乎更重视合同履行所产生效果的

22、社会价值，至于合同的形式的重要性则其次。只要合同能够双方认可了合同的履行即便是合同的形式有缺陷，也认定合同成立，除非法律有强制性的合同形式的硬性要求如房屋买卖的书面形式要求。 编辑课件2-4.5.3 我国法律：合同形式与合同成立关系形式意外与异议条件与合同成立法律效果口头合同一方对口头合同内容有异议合同已开始履行 合 同 认 定 成 立书面合同但实际上没有采取书面形式一方已履行主要义务，对方接受的在签字或盖章前依据交易习惯履行双方对合同履行没有异议如果一方对合同内容有异议一方已履行主要义务，对方不接受可能认定合同不成立编辑课件4.5.4 标准条款与合同格式战 A：Definition of s

23、tandard termsUNIDROTT principle: standard terms are provisions which are prepared in advance for general and repeated use by one party and which are actually used without negotiation with the other party.B. rules regarding standard terms a. general rules on formation of contract apply but with the f

24、ollowing exceptions （b-d）b. the term contained in the standard terms shall have no effect if the other party could not have reasonably expected;编辑课件c. in case of conflict between the standard term and term which is not standard, the latter prevailsd. where the contract is concluded containing the st

25、andard term used by both parties , the standard terms are in conflict with each other, the terms not in conflict are effective. 编辑课件C. battle of formBattle of form arises where the parties exchange inconsistent standard forms during the contract negotiation and reach the agreement on the principal t

26、erms without deciding whose standard form should prevail.编辑课件Resolution:1. classical last shot approach( usually used for offer/acceptance )-The party wins the battle if he sends the last insistent form which usually will be regarded as counter-offer; or -the party wins if he is more persistent in i

27、nsisting his own form.2. CISG approach 编辑课件CISG approach Art 19: acceptance with modificationsacceptanceWithMaterial modificationAcceptance is not effective it is a counter-offeracceptance withImmaterialmodificationAcceptance is effective unless offeror objects it orally or in writing form without d

28、elay .If the offeror does not object , the contract terms are the terms of offer with the modifications contained in the acceptance. 编辑课件Discuss: offeror is silent in the face of a modification at the back of purchase orderOn June 1 the Seller delivered to the Buyer a Sales Order Form that proposed

29、the sale of 1000 bags of No.1 quality sugar on specified terms, including shipment on July 1.Printed provisions on the back of the Sales Order Form included the statement: “the goods will be packaged in sound bags”On June 5 the buyer delivered to the Seller a Purchase Order Form that purported to ac

30、cept Sellers offer. The back of the Purchase Order Form had printed terms that ,in general, corresponded with those on sellers form, but included the statement :” shipment in new package or new bags ” 编辑课件The seller did not object to buyers Purchase Order Form and expected the sugar on July 1, in ne

31、w bags. On June 25, there was a sharp drop in the price of the sugar. The buyer consulted his lawyer to see whether he was legally bound. Comparison of the two forms revealed the difference as to “new bags” On June 27, buyer cancelled the order on the ground that the seller had not accepted his offe

32、r of June 5 .Question: is the cancelation legally successful?编辑课件Key: Not successful. Under CISG 19, as the modification in not material, and seller did not object. So the parties are bound by the contract ,including the modification- shipment in new bags. The buyer would be consequently be liable t

33、o seller for breach of the contract. However, the result would be different in some other legislation like UCC.编辑课件 - END OF LEC 6 -编辑课件 本周讲课内容2-5 国际货物买卖实务磋商的一般程序2-5.1交易磋商的形式2-5.2 交易磋商的程序- 询盘、发盘、还盘和接受的表达方式 及其法律性质的认定2-6 国际货物买卖合同实务条款2-6.0 出口交易磋商合同内容概要2-6.1 品质条款 & 凭样品买卖p93 数量条款和包装条款2-6.2 价格条款& 国际贸易术语解释

34、通则 p802-6.3 运输条款编辑课件 2-5 国际货物买卖实务 磋商的一般程序编辑课件2-5.1 （出口）交易磋商的形式A. the legal significance of forms for negotiation -It relates to the form of offer and acceptance-It relates to the form of contract-It relates the evidence which supports the existence of contract编辑课件B. The communicative forms of busine

35、ss negotiationOral form- conducted at Guangzhou fair-through telephone Written form- usual form( letter telex fax telegram email) Act- applicable if there is a previous deal practiced by both parties 编辑课件2-5.2.交易谈判一般程序及其法律性质认定询盘 inquiry (invitation to offer)发盘 - the offer还盘 - the counter offer (reje

36、ction)接受要约- the acceptance 编辑课件2-5.2.1 询盘 inquiryA. The expressions in inquiry- Please advise（quote、offer） your products- We are interested in your product. - Would you please make an offer with us for XX ？- We wish you would make an offer with us for XX.- Would you like to make an offer with us for

37、 XX?- Are you interested in our product ? 编辑课件B. the Legal nature of the inquiry - ITT, basically because they either lack of legal intention or of definiteness or some other reasons . C. discuss - why are those statements defined as inquiry ? - can you define a statement as inquiry? - where are the

38、 legal distinctions between inquiry and offer ? 编辑课件D. 询盘的商业表现形式及其要约性的嬗变-信件、email等文字措辞上;- 报价单、 价目表- 商品陈列 即便附有价格（街上商店、广交会 华交会等交易会）- 招标通知、拍卖师报价- 邮寄宣传品(pamphlet ,brochure) - 一般商业广告（电视 、广播、招牌等）询盘的公众受众面越广，在社会责任的推动下，其商业诚信度就越高，要约性即法律性就越强，反之就越低。可见，询盘的定性是会随着社会的商业度的提高而变化的。如：smoke ball case编辑课件2-5.2.2 发盘 - the

39、 offer A. 要约的构成条件和发盘要约的构成条件(见书p57)内容必须十分确定Sufficiently definite (CISG Art 14)编辑课件B. The expressions in (firm) offer -We would like to make an offer (order) with you for XX (other terms follow)-We would like to order the product for the price XX (other terms follow)- We would like to bid for XX-Can s

40、upply (other terms follow)编辑课件C. Please discuss and analyze the nature of following statements, which one is offer - We are offering XX (other terms follow) if you are interested.- We make an offer with your company for XX , (other terms follow) which is only open for 5 days.- The offer, subject to

41、our final confirmation, includes the following terms. .编辑课件- we quote you the price XX for the produce, with the other terms as per general terms and conditions concluded before.- we are providing a list of all the terms for this product for your reference only.- the produce is most likely available

42、 to you as per the following terms. - we are now making an firm offer for the goods at price of USDXX. Is this an offer under CISG?编辑课件D. compare and analyze the two statements of offers below:-we make the firm offer for all the terms based on the Contract No.321 concluded last May; -we make the fir

43、m offer for all the terms as per the Contract No.321 concluded last May Question: if the Contract No.321 is not valid , what result will it bring about to the offer? 编辑课件2-5.2.3 还盘 - the counter offerA. the role of counter offer - termination the original offer - creation of an new offerB. The expre

44、ssions in counter-offer - we accept the price of 5% lower than your offered price; - one month earlier will be ok to us. - please use L/C instead of D/P as offered in your letter. 编辑课件CDistinguish the counter offer & rejections and suggestions- the price is too high, not workable in our market. - we feel reluctant to accept your offer. - we can not accept the shipment in May-please rethink the price your offered to us;- why did you make a such a high p