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,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 contract B. written contract C. contract in action D. electronic contract,A. oral form

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

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

4、tter of intent (意向书); (4). preliminary agreement (初步协议书).,（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.,（3）. letter of intent (意向书) A document where one party gives a strong i

5、ndication 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.,（4） preliminary agreement (初步协议

6、) 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.,Furthermore, the

7、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, without any

8、 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.,This sort of rule of Fre

9、nch 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 unintended legal

10、obligations The best way to prevent such situation from happening is : discuss,C. contract in action It 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 above menti

11、oned.,D. electronic contract (电子合同形式) The recent development of e-commerce a. 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 the implementa

12、tion of the massage.,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 code sets- e.g.

13、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.,The benefits of e-commerce E-commerce (1). it creates high management by quickening decision-m

14、aking process and facilitating easy-to use system for management data analysis (2). it provides accuracy, speed and efficiency (3).it raises the organizations international pro access. (4).it makes the cost more effective Failure to become involved in E-commerce will result in businesses or companie

15、s no longer being competitive in the future marketplace.,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 infancy.,4.5.2要约与承诺形式与合同成立的关系

16、,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。,4.5.4 标准条款与合同格式战,A：Definition of standard terms UNIDROTT principle: standard terms are provisions which are prepared in advance fo

17、r 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 following exceptions （b-d） b. the term contained in the standard terms shall have no effect if

18、the other party could not have reasonably expected;,c. in case of conflict between the standard term and term which is not standard, the latter prevails d. where the contract is concluded containing the standard term used by both parties , the standard terms are in conflict with each other, the term

19、s not in conflict are effective.,C. battle of form Battle of form arises where the parties exchange inconsistent standard forms during the contract negotiation and reach the agreement on the principal terms without deciding whose standard form should prevail.,Resolution: 1. classical last shot appro

20、ach( 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 insisting his own form. 2. CISG approach,CISG approach Art 19: acceptance with modifications,Discuss

21、: offeror is silent in the face of a modification at the back of purchase order,On June 1 the Seller delivered to the Buyer a Sales Order Form that proposed 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

22、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 accept Sellers offer. The back of the Purchase Order Form had printed terms that ,in general, corresponded with those on sellers form, but inclu

23、ded the statement :” shipment in new package or new bags ”,The seller did not object to buyers Purchase Order Form and expected the sugar on July 1, in new 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. Comparis

24、on 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 offer of June 5 . Question: is the cancelation legally successful?,Key: Not successful. Under CISG 19, as the modification in not material, and seller

25、 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 to seller for breach of the contract. However, the result would be different in some other legislation like UCC.,- END OF LEC 6 -,本周讲课内容 2-5 国际货物买卖实务

26、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 - 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 ba

27、ll case,2-5.2.2 发盘 - the 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),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 woul

28、d like to bid for XX -Can supply (other terms follow),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

29、. - The offer, subject to our final confirmation, includes the following terms. .,- 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

30、 is most likely available 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?,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 las

31、t May; -we make the firm 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?,2-5.2.3 还盘 - the counter offer A. the role of counter offer - termination the original offer - creation of an n

32、ew offer B. The expressions 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.,CDistinguish the counter offer - why did you make a such a high price to us? - we only accept shipm

33、ent in March ,not in Feb. - we only accept your offer if you postpone the shipment from Feb to March .,DCompare and analyze the following in pairs -the price level of XX in your offer dated XX, as accepted in our previous dealings though, will be more acceptable if you could cut the price down by 20%; -Your offer dated XX is accept