国际商法offerandacceptance

1、Chapter 5: Foreign Exchange Rate& Contract Formation Offer & Acceptance Section Two :Contract Formation Offer & AcceptanceExport Procedures on the side of SellerContract Formation Offer & Acceptancev 询盘询盘(Inquiry)v 发盘发盘(Offer) v 递盘递盘(Bid)v 还盘还盘(Counter-offer)v 接受接受(Acceptance)v 订立合同订立合同(Sign a contr

2、act)buyerseller合同成立的时间（Effective time of contract）合同生效的要件（ Effective conditions of contract）合同的形式（Forms of contract ）合同的内容（Contents of contract）business negotiationofferofferCounterCounterofferofferacceptanceinquiryinquirytwo indispensable stagetwo indispensable stageBusiness termsBusiness termsLaw

3、termsLaw termsWords for daily lifeWords for daily lifeInternational Business Negotiation & Signing of ContractBusiness Negotiation1.含义（含义（Definition）进出口方就商品的各项条件进行谈判，以达成交易的过程。进出口方就商品的各项条件进行谈判，以达成交易的过程。vBusiness Negotiation is the dealings between the importer and exporter in order to reach an agreem

4、ent on quality, quantity, price, payment and other terms and conditions of a contract.2.形式形式Forms of International Business Negotiation口头磋商（口头磋商（Verbal Negotiation）书面磋商（书面磋商（ Written Negotiation ）The Process of Business Negotiation询盘询盘 Inquiry发盘发盘 offer还盘还盘 counteroffer接受接受 acceptanceContents of Bus

5、iness Negotiation质量质量quality数量数量quantity包装包装packing运输运输shipment保险保险insurance商检商检inspection索赔索赔claims仲裁仲裁arbitration不可抗力不可抗力force majeure1.询盘 Enquiryv询盘买方或卖方为了购买或销售某项商品，向对方询问有关交易条件，表示交易愿望的一种行为。例如，英国某买主9月8日向我轻工业品进出口公司发来询盘。9月8日来电：拟订购美加净牙膏大号1000罗请电告最低价格最快交货期。BOOKABLE MAXAM DENTAL CREAM LARGE SIZE 1000 G

6、ROSS PLEASE CABLE LOWEST PRICE EARLIEST DELIVERY.2.发盘 Offer发盘买卖双方中的一方向对方提出各项交易条件，并且愿意按照这些条件与受盘人达成交易，成立合同的一种肯定的表示。例如，我轻工业进出口公司根据英国买方9月8日的询盘，作出下列发盘：9月10日去电：你9月8日电发盘限15日复到我方美加净牙膏货号101纸箱装每箱6打每罗32英镑CIF伦敦12月装即期不可撤销信用证。YOURS EIGHTH OFFER SUBJECT REPLY REACHING US FIFTEENTH MAXAM TOOTHPASTE ARTNO 101 PACKED

7、 IN CARTONS OF SIX DOZ EACH STERLING THIRTY TWO PERGROSS CIF LONDON DECEMBER SHIPMENT IRREVOCABLE SIGHT CREDIT. 9月10日去电：你9月8日电发盘限15日复到我方美加净牙膏货号101纸箱装每箱6打每罗32英镑CIF伦敦12月装即期不可撤销信用证。YOURS EIGHTH OFFER SUBJECT REPLY REACHING US FIFTEENTH MAXAM TOOTHPASTE ARTNO 101 PACKED IN CARTONS OF SIX DOZ EACH STERLI

8、NG THIRTY TWO PERGROSS CIF LONDON DECEMBER SHIPMENT IRREVOCABLE SIGHT CREDIT.v罗: 量词，用于商业，一罗合十二打 Communication Tools信件样本：信件样本：Sample of offerDear Sirs, we thank you for your inquiry of July 10th, asking us to make you a firm offer for black tea. We are now offering you 50 metric tons of black tea, at

9、 USD1800 net per metric ton CFR Shanghai for shipment during November/December. This offer is firm, subject to your reply reaching here before July 30th of our time. As you know, there is a large demand for the above goods, such a growing demand can only result in increased price. However, you may b

10、enefit from the advancing market if you send us your immediate acceptance. Yours Truly, 3.还盘 Counterofferv还盘受盘人对发盘条件不同意或不完全同意而提出修改、限制或增加新条件的表示。例如，上述牙膏交易中客户还盘和我方再还盘：9月12日来电：你10日电价太高还盘30英镑限14日复。YOURS TENTH PRICE TOO HIGH COUNTER OFFER STERLING THIRTY REPLY FOURTEENTH.9月14日去电：你12日电最低价31英镑限18日复到。YOURS T

11、WELFTH LOWEST STERLING THIRTY ONE SUBJECT REPLY EIGHTEENTH HERE.9月12日来电：你10日电价太高还盘30英镑限14日复。YOURS TENTH PRICE TOO HIGH COUNTER OFFER STERLING THIRTY REPLY FOURTEENTH.9月14日去电：你12日电最低价31英镑限18日复到。YOURS TWELFTH LOWEST STERLING THIRTY ONE SUBJECT REPLY EIGHTEENTH HERE.4.接受 Acceptancev接受买方或卖方无条件地同意对方在发盘中提

12、出的交易条件，并愿意按这些条件与对方达成交易、订立合同的一种肯定的表示。例如，9月16日来电：你14日电我接受。YOURS FOURTEENTH WE ACCEPT.又如，9月16日来电：你14日电接受美加净牙膏货号101纸箱每箱6打每罗31英镑CIF伦敦12月装不可撤销即期信用证请告合同号码YOURS FOURTEENTH ACCEPT MAXAM TOOTHPASTE ARTNO 101 PACKED CARTONS OF SIXDOZ EACH STERLING THIRTYONE PERGROSS CIF LONDON DECEMBER SHIPMENT IRREVOCABLE CRE

13、DIT PLEASE ADVICE CONTRACT NUMBER.又如，9月16日来电：你14日电接受美加净牙膏货号101纸箱每箱6打每罗31英镑CIF伦敦12月装不可撤销即期信用证请告合同号码YOURS FOURTEENTH ACCEPT MAXAM TOOTHPASTE ARTNO 101 PACKED CARTONS OF SIXDOZ EACH STERLING THIRTYONE PERGROSS CIF LONDON DECEMBER SHIPMENT IRREVOCABLE CREDIT PLEASE ADVICE CONTRACT NUMBER.Section Two :Co

14、ntract Formation Offer & Acceptance一、询盘（Inquiry） Buyer Inquiry Seller Seller Invitation to offer buyer二、发盘(Offer)定义(Definition) 实盘(Firm offer) 虚盘(Non-firm offer)构成发盘的条件(Conditions the formation of an offer shall possess)1.The offer shall be made to one or more specific persons. 2.The offer shall ind

15、icate the intention of the offer or to be bound in case of acceptance.3.Contents of the offer shall be definite, i.e.,trade terms of the offer shall be complete, clear, and final. 发盘的有效性(validity of offer)1.Stipulate the latest date for acceptance.2.Stipulate a period of time for acceptance.3.Not st

16、ipulate clearly the time of validity. v发盘生效的时间(Effective Time of offer)v1.Offer by oral, it is effective from the time the offeree knows contents of the offer.v2.Offer in written, there are two opinions: posting opinion and arrival opinion.v发盘的撤回与撤消（Withdrawal and revocation of the offer） withdrawal

17、: the withdrawal reaches the offeree before or at the same time. revocation: revocation reaches the offeree before he has dispatched an acceptance.v发盘效力的终止（Termination of an offers effectiveness）v三、还盘 （Counter-offer） Counter-offer means that the offeree doesnt accept the offer wholly and put forward

18、 some additions, modification, limitations, etc. as to the basic terms and conditions contained in the offer. material modification: price, payment, quality, quantity, place and time of delivery, settlement of disputes. modification non-material modificationv 返回目录返回目录四、接受（Acceptance）（一）定义(Definition

19、) It refers to a statement made by oral or written or other conduct of the offeree indicating assent to an offer.（二）接受的条件（The condition)vAcceptance shall be made by a specific offeree.vAcceptance shall be declared in ways stipulated in the offer, either orally or in a written form.vAcceptance shall

20、reach the offeror within the time of validity.vAcceptance shall be in accordance with the offer.（三）接受生效的时间（The effective time of acceptance)（四）逾期接受（Late acceptance)vWithout delay the offeror orally or in written from informs the offeror to that effect.vIf a letter or other writing containing a late

21、acceptance shows that it has been sent in such circumstances, that if it transmission had been normal,it would have reached the offeror in due time,the late acceptance is effective as an acceptance unless,without delay,the offeror orally informs the offeree that he consider his offer as having lapse

22、d or dispatches a notice to that effect.（五）接受的撤回（Withdrawal of acceptance) 返回目录返回目录Offer and acceptancevBefore classvAnswer the following questions:vA: v1.Jack wrote a letter to Bob asking, “Will you sell me your car? Please reply indicating your lowest price.” Bob replied in a short note “Lowest pr

23、ice for my car $24,000.” Jack immediately replied “I agree to buy your car for $24,000.”vDo you think Bob should be obliged to sell his car to Jack? Offer and acceptancev2. Smith wrote a letter to Jones saying “I would like to buy your car for $20,000, $5,000 to be paid on the day of sale and the ba

24、lance in two months.” Jones replied, saying, “I wouldnt take less than $24,000. If you want it let me know quickly, as there is someone else after it.Offer and acceptancevSmith tried again, this time offering $22,000, $5,000 up front and the balance in two months. Jones replied “I am quite agreeable

25、 to your terms, viz, $5,000 up front and the balance in two months, but I still dont care to take less than $24,000. If you accept my offer let me know at your earliest convenience, as I still have someone else interested.”Offer and acceptancevOn the same day Jones wrote to Crump, offering to sell h

26、im the car for $25,000. The next day he received similar replies from Crump and Smith, which both read: “Accepting your offer”. Jones sold the car to Crump (of course).vDo you think Smith should have a remedy against Jones because he did not get the car?Offer and acceptancevB: Antonio puts an advert

27、isement in the newspaper offering a reward of $100 to anyone who finds and returns Antonios pet dog. Brenda reads the advertisement, finds the dog, returns it and claims the reward. Antonio refuses to pay the reward on the basis that Brenda had not communicated her intention to accept the offer prio

28、r to finding and returning the dog.vIs Antonio correct? Yes/No? Explain.Offer and acceptancevC: Gerry advertises a car for sale in the paper on 1 April. Laura phones up and expresses interest in buying if the price is right. Eventually, Gerry says, “Okay, you can have it for $5,000, but the offer cl

29、oses on 10 April”. On 9 April, Laura sends a letter of acceptance. The letter does not reach Gerry until 11 April.vIs there a contract? Yes/No? Explain.Offer and acceptancevIn classvA: Introduction : Business Negotiationv if a foreign company is interested in buying the exporters products, negotiati

30、on should be organized. Business negotiation plays a very important role in the conclusion and implementation of a sales contract. It has a great bearing on the economic interest o the parties concerned.如果外国公司有兴趣购买出口商的产品，就应安排磋商。交易的磋商在销售合同的签订以及 以后的履行中起着重要的作用。它与交易双方的经济利益密切相关。Offer and acceptancevNo ma

31、tter what way the negotiation are held, in general, they consist of the following links: enquiry, offer, counter-offer, acceptance and conclusion of sales contract. Among which, offer and acceptance are two indispensable vlinks for reaching an agreement of the concluding a contract. 不管磋商用什么方法开始，它通常包

32、括下列几个环节： 询盘，发盘，还盘，接受和签订销售合同。其中发盘和接受是达成协议和签订合同不可缺少的环节。Offer and acceptancev1.1 Enquiry：询盘 v An enquiry is a request for business information, such as price lists, catalogues samples, and details about the goods or trade terms. It can be made by either the importer or the exporter. On receiving the en

33、quiry, it is a regular practice that the exporter should reply to it without delay to start the negotiation. 询盘是要求提供有关交易的信息，如商品的价格，目录，样品以及贸易条件。询盘可有进口商或出口商发出。收到询盘以后，作为惯例卖方应立即回复以便开始交易磋商。Offer and acceptancev1.2 Offer and Counter-offerv An offer is a proposal made by sellers to buyers in order to enter

34、 into a contract . In other words, it refers to trading terms put forward by offerors to offerees, on which the offerors are willing to conclude business with the offerees. They are two kinds of offers, one is firm offer( definite offer), the other, non-firm offer( indefinite offer) .发盘是卖方向买方提出的签定合同

35、的建议。换句话说，它指的是发盘人向受盘人提出的交易条件。按此条件，发盘人愿意同受盘人进行交易。发盘有两种：实盘和虚盘。Offer and acceptancev1.2 Offer and Counter-offervA reply to an offer which purports to be an acceptance but contains additions , limitations or other modifications is as a rejection of the offer and constitutes a counter-offer.对发盘表示愿意接受但载有添加

36、，限制或其他更改的答复，即为拒绝该项发盘并构成还盘。Offer and acceptancev1.3 vAcceptance is a statement made by or other conduct of the offeree indicating unconditional assent to an offer. A contract is concluded once the offer is accepted. v接受指的是受盘人声明或做出其他行为表示无条件接受一项发盘。发盘接受后，合同随即达成。Offer and acceptancev1.4 Conclusion of sal

37、es contractv as soon as an offer is accepted, a written sales contract or sales confirmation is usually required to be signed between the buyer and the seller to confirm the sales and stipulate their rights and obligations respectively. A sales contract or sales confirmation contains some general te

38、rms and conditions as well as the specific terms that vary with the commodity.发盘接受后，买卖双方通常要求签定书面的销售合同或销售确认书以规定各自的权利和义务。销售合同和销售确认书包含一些一般的条款，还包含一些随商品而变化的特定条款。Offer and acceptance 1.4 Conclusion of sales contract But such terms as the name of the seller, the description of the goods, quality and specif

39、ication, quantity, packing, unit price, amount , payment, date of delivery, shipping, insurance, inspection, claim and arbitration are indispensable. The sales contract is normally made out in two originals, one for the buyer himself and the other for his seller. 但是，以下这些条款是不可缺少的： 买卖双方的姓名，商品的式样，品质和规格

40、，数量，包装单价，总价，支付，发货日期，装运，保险，商检，索赔和仲裁。销售合同和销售确认书包一般一式两份，买卖双方各执一份。Offer and acceptancevB: Offerv2.1 Definition: vAn offer means submitting or furnishing details including prices, conditions, and other related items needed for a contract. B: Offerv A proposal for concluding a contract addressed to one or

41、 more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offerer to be bound in case of acceptance. v（向一个或一个以上特定的人提出的订立合同的建议，如果十分确定并且表明发价人在得到接受时承受约束的意旨，即构成发价。vThe United Nations Convention for Contracts on International Sales of Goods (CISG) 国际货物销

42、售契约公约国际货物销售契约公约联合国国际货物销售合同公约 中英文对照 联合国国际货物销售合同公约(United Nations Convention on Contracts for the International Sale of Goods (1980) )vArticle 14 (1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the int

43、ention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. （向一个或一个以上特定的人提出的订立合同的建议，如果十分确定并且表明发价人在得到接受时承受约束的意旨，即构成发价。一个建议如果写明货物并且明示或暗示地规定数量和价格或规

44、定如何确定数量和价格，即为十分确定。） 2.发盘 Offer构成发盘的四个条件：构成发盘的四个条件： Necessary Conditions for a Firm Offer表明订立合同的意旨表明订立合同的意旨 Intention向一个或多个特定的受盘人提出；向一个或多个特定的受盘人提出； Specific Person (s)内容完整、准确、肯定；内容完整、准确、肯定； Definite: Completeness, Clearness, Final发盘送达受盘人。发盘送达受盘人。 Communication of Offer: An offer becomes effective whe

45、n it reaches the offeree.Offer and acceptancev2.2 Definite offer vOffers can normally divided into two types according to their finality.终结；定局；不可改变性 vA definite offer is one that clearly expressed the offerers willingness in concluding a contract. Such an offer will be binding on the offerer if the

46、offer is accepted by the offeree. Example in page 101Offer and acceptancev2.2 Definite offer vThe characteristics of a definite offer.v1. It includes all the necessary items for a transaction;v2. It specifies the time by which the offer is valid and the time the acceptance must be received. v3. It u

47、ses the phrase “offer firm meaning that v the offer is made without reservations. Offer and acceptancev2.3 Indefinite offervDefinition: v An indefinite offer is one that has not expressed the offerers clear willingness to conclude a contract. It is not binding on the offerer.Offer and acceptancevThe

48、 characteristics of an indefinite offer. v1.It does not necessarily include all the details needed for a transaction.v2. It has reservations to the offer such as “ subject to our final confirmation” and “for reference only” .etc.v3. It does not have a time limit for acceptance since it is indicative

49、. Offer and acceptancev2.4 Withdrawal and revocation of offer:vwithdrawal of offer 撤回发盘撤回发盘 v撤回要约撤回要约(revocation of an offer) 是指在要约发生法律效力以前要约人发出的使其要约不生效的通知 . ,revkein vAn offer may be withdrawn if the withdrawal notice reaches the offeree before or at the same time as the offer. Case v北京一家公司向巴黎一家公司发

50、盘，其中规定有效期到3月10号为止。该发盘是3月1日以特快专递寄出的，3月2日北京公司发现发盘不妥，当天即用电传通知巴黎公司宣告撤回该项发盘，问这样做是否可以？发盘是否可以撤回？根据是什么？Case vA sends a letter dated March 5 to B offering to sell its house for $1000, saying the offer is open until March 9 and it must have heard from B by then. B receives it on March 6 and immediately prepar

51、es letter of acceptance. Before B delivers his acceptance in the morning of March 7, A changes its mind and calls B saying it cancels the offer. Revocation is valid.Offer and acceptancev2.5 Termination of offervAn offer is terminated in the following formsv1. The party offering may revoke the offer

52、if no consideration has been given.v2. the offer may lapse. 失效 v3. Offer may come to an end after a stipulated event occurs or does not occur.v4. Offer may lapse on death of the party offering.v5. Offer is killed by a counter-offer. Offer and acceptancev2.6 Work before and after offerv1.carry on pro

53、motional communication v2. receive inquires v3. check on inquirers credit standing, his countrys v political/ economic situation andimport/exchange v barriers. . v4. work out an offer v5. send the offer v6. follow up with the offer v7. receive orderOffer and acceptancev2.7 Import aspects of efficien

54、cy in handling inquires, v offers and orders v1. speed v2. clarity vP106 Offer and acceptancevC: Acceptance vDefinition: an acceptance is a statement made by the offeree indicating assent to an offer. It is at that moment that a contract exists. v3.1 Requirements for an acceptancev1. In response to

55、an offer.v2. By the right partyv3.In absence of material disagreementsv4.in effective communicationv5. in timev6. by correct methods接受 Acceptancev构成有效的接受的条件：构成有效的接受的条件：必须由受盘人发出接受的表示必须由受盘人发出接受的表示接受必须用一定的方式做出接受必须用一定的方式做出接受必须无条件地全部同意发盘的条件接受必须无条件地全部同意发盘的条件接受必须在发盘的有效时间内传达发盘人接受必须在发盘的有效时间内传达发盘人Offer and ac

56、ceptancev3.2 counter offervA counter-offer: means either the offerer proposes a new set of terms for the transaction or he makes a conditional acceptance by making actual, material changes in the offer. Offer and acceptancevD: Conditions of salev1. right to vary the specifications of the goods from

57、sample. v2. right to increase prices v3. liability not to exceed the value of goods exported. v4. statement of the law to interprete the contract and to appoint arbitrators in case of dispute. Offer and acceptance: ExercisesWords and expressionsvoffer 报盘，报价firm offer 实盘 vnon-firm offer 虚盘to forward

58、an offer (or to send an offer) 寄送报盘to get an offer (or to obtain an offer) 获得.报盘to cable an offer (or to telegraph an offer) 电报（进行）报价offer and acceptance by post 通过邮政报价及接受 vto accept an offer 接受报盘 Offer and acceptance: ExercisesvSentences vOur offers are for 3 days. vWe have extended the offer as pe

59、r as your request. The offer holds well until 5 oclock p.m. 23rd of June, 1997, Beijing time. vAll prices in the price lists are subject to our confirmation. vThis offer is subject to your reply reaching here before the end of this month. 。 vThis offer is subject to the goods being unsold. We have r

60、eceived offers recently, most of which are below 100 U.S. dollars. vMoreover, weve kept the price close to the costs of production. Offer and acceptance: ExercisesvDear Sirs,vWe have received your letter dated August 1, from which we note that you wish to have an offer from us for 2,000 dozens of No