【學(xué)習(xí)課件】第一篇貨物買賣法lec-7(上)交易磋商程

1、2-4.5 合同的形式 （form）4.5.1合同的形式與各種類似合同形式4.5.2要約與承諾的形式與合同成立的關(guān)系4.5.3合同的形式與合同成立的關(guān)系 4.5.4合同格式戰(zhàn) 編輯課件4.5.1合同的形式與各種類似合同形式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編輯課件A. oral form

2、of contract It is formulated through language. - Vis-a-vis negotiation - negotiation through telephone or MSN phoning system編輯課件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. 編輯課件b. commercial documents similar to written contractThose similar document include: (1). memo(備忘錄); (2). general agreement（原則協(xié)議書）;(3). l

4、etter of intent (意向書);(4). preliminary agreement (初步協(xié)議書).編輯課件（1）. memo (備忘錄)-a record of negotiation, -non-legal document（2）. general agreement (原則性協(xié)議)a legal document but it needs to be further detailed in order to be workable. 編輯課件（3）. letter of intent (意向書) 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. 編輯課件（4） preliminary agreemen

6、t (初步協(xié)議)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. 編輯課件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(協(xié)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.編輯課件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編輯課件C. contract in actionIt is also called 事實合同 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. 編輯課件D. electronic contract (電子合同形式)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. 編輯課件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.編輯課件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. 編輯課件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. 編輯課件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 .編輯

18、課件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.編輯課件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.編輯課件 4.5.2要約與承諾形式與合同成立的關(guān)系要約/承諾的形式與合同形式圖表 要約當(dāng)面談判、電話信/電報/傳真/電郵行為口頭書面行為承諾當(dāng)面電話口頭口頭合同書面合同？口頭合同？信、電報傳真電郵書面書面合同？書面合同書面合同？行為行為 事實合同(法理是:事實合同的特點是合同的成立與合同的履行在同一個時間)編輯課件4.5.3合同的形式與合同成立的關(guān)系在通常情況下，合同具備法定形式后合同成立，但有時合同在形式上的缺陷并不影響合同的成立，我國法律似乎更重視合同履行所產(chǎn)生效果的

22、社會價值，至于合同的形式的重要性則其次。只要合同能夠雙方認(rèn)可了合同的履行即便是合同的形式有缺陷，也認(rèn)定合同成立，除非法律有強制性的合同形式的硬性要求如房屋買賣的書面形式要求。 編輯課件2-4.5.3 我國法律：合同形式與合同成立關(guān)系形式意外與異議條件與合同成立法律效果口頭合同一方對口頭合同內(nèi)容有異議合同已開始履行 合 同 認(rèn) 定 成 立書面合同但實際上沒有采取書面形式一方已履行主要義務(wù)，對方接受的在簽字或蓋章前依據(jù)交易習(xí)慣履行雙方對合同履行沒有異議如果一方對合同內(nèi)容有異議一方已履行主要義務(wù)，對方不接受可能認(rèn)定合同不成立編輯課件4.5.4 標(biāo)準(zhǔn)條款與合同格式戰(zhàn) 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;編輯課件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. 編輯課件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.編輯課件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 編輯課件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. 編輯課件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”O(jiān)n 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 ” 編輯課件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?編輯課件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.編輯課件 - END OF LEC 6 -編輯課件 本周講課內(nèi)容2-5 國際貨物買賣實務(wù)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- 詢盤、發(fā)盤、還盤和接受的表達方式 及其法律性質(zhì)的認(rèn)定2-6 國際貨物買賣合同實務(wù)條款2-6.0 出口交易磋商合同內(nèi)容概要2-6.1 品質(zhì)條款 & 憑樣品買賣p93 數(shù)量條款和包裝條款2-6.2 價格條款& 國際貿(mào)易術(shù)語解釋

34、通則 p802-6.3 運輸條款編輯課件 2-5 國際貨物買賣實務(wù) 磋商的一般程序編輯課件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編輯課件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 編輯課件2-5.2.交易談判一般程序及其法律性質(zhì)認(rèn)定詢盤 inquiry (invitation to offer)發(fā)盤 - the offer還盤 - the counter offer (reje

36、ction)接受要約- the acceptance 編輯課件2-5.2.1 詢盤 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 ? 編輯課件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 ? 編輯課件D. 詢盤的商業(yè)表現(xiàn)形式及其要約性的嬗變-信件、email等文字措辭上;- 報價單、 價目表- 商品陳列 即便附有價格（街上商店、廣交會 華交會等交易會）- 招標(biāo)通知、拍賣師報價- 郵寄宣傳品(pamphlet ,brochure) - 一般商業(yè)廣告（電視 、廣播、招牌等）詢盤的公眾受眾面越廣，在社會責(zé)任的推動下，其商業(yè)誠信度就越高，要約性即法律性就越強，反之就越低?？梢?，詢盤的定性是會隨著社會的商業(yè)度的提高而變化的。如：smoke ball case編輯課件2-5.2.2 發(fā)盤 - the

39、 offer A. 要約的構(gòu)成條件和發(fā)盤要約的構(gòu)成條件(見書p57)內(nèi)容必須十分確定Sufficiently definite (CISG Art 14)編輯課件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)編輯課件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. .編輯課件- 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?編輯課件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? 編輯課件2-5.2.3 還盤 - 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. 編輯課件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