Chapter 8 The negotiation of the contract 合同的商订 〖教学目的与要求〗 通过本章的学习，使学生了解国际货物买卖合同商订的法律步骤、合同成立和生效的时间、合同的形式及其基本内容，为实际商贸工作打好坚实基础。通过学习，学生必须掌握合同商订的四个环节、合同生效的时间以及合同的形式、内容。 〖考核要点〗
询盘、发盘、还盘、接受 合同的形式 〖教学内容〗
案例引入 我国出口公司于10月25日 以电传发盘，其中规定：“10月29日 复到有效”。国外客户于10月27日 复电并于当天送达我方，复电称“接受你25日电但减价2%，我方正考虑时，该客户又于10月28日 来电表示撤消其10月27日电，接受我10月25日的发盘。根据《公约》，客户能否撤消10月27日电？交易是否成立？
Unit1 The steps of signing a contract 第一节 交易磋商的程序 ⅠInquiry 询盘 Inquiries are usually made by the buyers without engagement to get information about the goods to be ordered, such as quality, quantity, price, delivery date and other terms. The enquiry made by the buyer is also called invitation to offer. In some cases the inquiry can also be made by the seller, which is called invitation to make a bid. ⅡOffer 发盘
⒈The definition 定义 An offer is a promise conditioned on acceptance that no matter whether from an exporter or importer, must be communicated to the offeree and must clearly undertake a performance definite as to all essential terms. There are two kinds of offers: firm offer and non-firm offer. A firm offer 实盘is a promise to sell goods at a stated period of time and once it has been accepted within its stipulated validity it cannot be withdrawn. A non-firm offer 虚盘is an offer without engagement. In most cases, the contents of a non-firm offer are not clear and definite, the main terms and conditions are not complete. ⒉Conditions the formation of an offer shall possess 构成发盘的条件 ⑴The offer shall be made to one or more specific persons. 向某一个或几个特定的人提出。 ⑵The offer shall indicate the intention of the offeror to be bound in case of acceptance。 表明发盘人愿意受约束 ⑶Contents of the offer shall be definite, i.e., trade terms of the offer shall be complete, clear, and final. In foreign trade practice, a complete offer shall include the quality, quantity, packing, price, terms of delivery of the goods and terms of payment. 内容十分确定 ⒊Validity of offer 发盘的有效性 In most cases, an offer shall contain the term of validity. The most commonly used methods to stipulate time of validity are: ⑴Stipulate the latest date for acceptance. 规定接受的最迟日期 ⑵Stipulate a period of time for acceptance 规定一段时期 ⑶Not stipulate clearly the time of validity.不清楚的规定有效期 ⒋发盘生效的时间 ⑴以口头方式做出的发盘，其法律效力自对方了解发盘内容时生效； ⑵以书面形式做出的发盘，有两种不同的观点：一是发信主义；二是到达主义。 ⒌Withdrawal and revocation of the offer 发盘的撤回和撤消 An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. As to whether an offer can be revoked or not, different laws have different explanations. According to Article 16 of the United Nations Convention on Contracts for the International Sale of Goods, an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. However, an offer cannot be revoked a. if it indicates, whether by setting a fixed time for acceptance or otherwise, that it is irrevocable; or b. if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer. ⒍Termination of an offer’s effectiveness 发盘效力的终止 ⑴The time validity stipulated in the offer becomes due 报盘中规定的有效期到了 ⑵The offeree rejects or makes a counter offer 受盘人拒绝或者还盘 ⑶The offerer revokes the offer before acceptance 发盘人在接受之前撤消了报盘 ⑷After the offerer sends an offer to the offeree, force majeure happens 发生了不可抗力 ⑸The offerer or offeree loses their action ability before the offer is accepted 发盘人或报盘人在接受前失去行为能力。 ⅢCounter-offer 还盘
Counter-offer means that the offeree doesn’t accept the offer wholly and put forward some additions, modifications, limitations, etc. as to the basic terms and conditions contained in the offer. Once a counter is made, the original offer made by the offeror loses its effectiveness. The United Nations Convention on Contracts for the International Sale of Goods stipulates: 1. A reply which purports to be an acceptance but contains additional, limitations or other modifications is a rejection of the offer and constitutes a counter-offer. 包含了附加条件、限制和其他修改是对发盘的拒绝，构成了还盘。 2.However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he doesn’t so object the terms of the offer with the modifications contained in the acceptance. 非实质性变更不够成还盘 3. Additional or different terms relating among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party’s liability to the other or the settlement of disputes are considered to alter the terms of the offer materially. 实质性变更是指对价格、付款、质量、数量、交货时间地点及双方的责任、争议的解决。 ⅣAcceptance （接受）