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〗
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to sell goods at a stated period of time and once it has been accepted within its stipulated validity it cannot be withdrawn.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An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer.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.