案例分析和问答题

3. B accept A’s offer
• However, on Dec. 22nd, Company A received a commitment from Company B that Company B agreed to the conditions of Company A’s offer.
Company B is made within the period of validity, so the contract is effective.
Conclusion
• An offer is effective when it reaches the offeree. • An offer can be withdrawn before the offeree receives the offer. • An offer can be revocable before the offeree accepts the offer. • An offer is irrevocable within valid time.
• (2) To the losses caused by Wang, all the partners should take unlimited joint liabilities. According to the partnership law, when one or more of the partner’s action leads to some debts of the partnership not deliberately or not with gross negligence, all the partners should take unlimited joint liabilities. In this case, Wang’s action did not belong to gross negligence, so all the partners should take unlimited liabilities.
or otherwise, that it is irrevocable. Company A mentions the valid time is before Dec. 30 and he
receives the acceptance made by Company B in valid time. The
Reasons
1. The revocation of Company A is ineffective.
Company A thinks that he sends the revocation to the Company B, so the offer is revoked and ineffective. However Under CISG 15(P361) An offer becomes effective when it reaches the offeree. What’s more, the revocation of an offer should happen before an offer is effective.
2. The offer of Company A is irrevocable.
Under the CISG Article16, (P361) An offer cannot be revoked under such condition:
If it indicates, whether by stating a fixed time for acceptance
• 1) When Zhang was auditing A Public Company’s accounting report, he left out part of the sales revenues with gross negligence. The court held that the public accounting firm should be responsible for the loss of A. But Zhang thought that he didn’t do this on purpose, thus all the partners should take joint liability for the loss.
• November 25, 2001, the German
案例分析1 1. A sent offer to B
Company A sent an offer to the Hong Kong Company B as the following:
• 2000 Jettish color copiers and $4,000 each FOB(Hamburg) for prompt shipment, the offer is valid until December 30.
• Since Company A did not perform the contract at the end, Company B resorted to the Swedish arbitral tribunal and required Company A’s compensation for the losses.
Suggestion
• Withdrawal and revocation of an offer is very complex and we should refer to CISG articles to judge if and how an offer can be revocable or withdrawal.
2. A revoke the offer to B
• A received an offer from a company of Paris to buy this type of copiers, but offered higher price than Company A had offered to Company B. • Since B had not made a commitment to company A’s offer, Company A sent the notice to revoke the previous offer to Company B on Dec. 15th. • Then signed a contract with the company in Paris.
offer is effective and is irrevocable.
3. The contract of Company A and Company B is
effective.
In this case the offer of Company A indicates the
period of validity is Dec.30 in 2001. The acceptance of
Answers
1. The revocation of Company A is unreasonable. 2.The offer of Company A is irrevocable.
3.The contract of Company A and Company B
is effective.
Questions
1. Is the revocation of Company A effective? 2. Is the offer of Company A in Nov. 25th irrevocable? 3. Is the contract of Company A and Company B effective?
• Zhang’s allegation was not right. According to the partnership law, when one or more of the partner’s action leads to some debts of the partnership deliberately or with gross negligence, they should take unlimited liability or unlimited joint liability, and other partners take limited liability in accordance with their profit proportion in the partnership. In this case, Zhang’s action was with gross negligence, so he would take unlimited liability, and other partners took limited liability. •
• We should make a comprehensive study of CISG articles and apply to the situation which we may meet in the future.
案例分析2
Three registered accountants Zhang, Wang and Li set up a public accounting firm jointly with the name Special General Partnership, supplying the services of auditing and certification of registered capital. During the auditing affairs in 2008, there happened the following matters:
Hale Waihona Puke Baidu
• Subsequently, Company B opened an irrevocable letter of credit to Company A and requires Company A to fulfill the contract.
4. B requires compensation
questions
• Answer the following questions: • (1) Was Zhang’s allegation right? Why? • (2) What should the partners deal with the losses caused by Wang? Please present your reasons.
• 2) When Wang was certificating the registered capital of B company, he made a mistake with negligence, and thus led to some economic losses of the creditor of B company. The court held that Wang’s negligence did not belong to gross negligence.
5. A’s argument
• But, Company A's lawyers argued that Company A had sent the notice of revocation to the Company B on Dec. 15th, so the offer sent on Nov. 25th had been revoked and had lost its effectiveness. • In this way, the commitment of Company B on Dec. 22nd was not effective and the purchase and sale contract had not been established.