Lesson 4合同法

C. Counter offer If the offeree replies changing the terms or negotiating, this is not an acceptance, but a counter offer which destroys the original offer and creates a new one which the original offeror has the right to accept or reject.
An offer does not remain capable of being accepted forever. An offer may come to an end in a number of ways. 要约的消灭或者要约的终止，指要约丧失法律 效力，要约人与受要约人均不再受其约束。要 约人不再承担接受承诺的义务，受要约人亦不 再享有通过承诺使合同得以成立的权利。
In common law system countries, as UK and USA, generally, most of offers are revocable prior to the time of acceptance, even though there is a time limit within which the offer is open. This may happen when the offeror finds that the offer he makes contains some mistake, or that the situation has changed which makes his offer unfavorable to him.
D. Lapse of time 逾时\过期失效 An offer will not remain open indefinitely. An offer may lapse失效 due to the passage of time. This can occur when: a. It is stated in the offer that it is open for a specific time. e.g. “You have until Friday to let me know your decision”. If acceptance, refusal or revocation does not take place before Friday then the offer will lapse on that day.
G. Failure of a precondition先决条件未能满足
Facts: Financings Ltd v. Stimson Between the def’s offer to buy a car and the pl’s acceptance, the car was stolen and badly damaged. The pl did not know and signed an agreement. It was held that this was not an acceptance since the precondition that the car was in a certain state had failed, therefore there was no valid contract. If a main term of an offer is unfulfilled or substantially altered, then the offer is no longer capable of acceptance.
Facts: Ramsgate Victoria Hotel v. Montefiore The defendant offered by letter dated June 8 to buy shares in the company. No repay was made by the company, but in November they allotted shares to the defendant. The defendant refused to take up the shares. It was held that after five months the offer had lapsed. His refusal was justified.
Comments: The question of reasonable time is a matter of fact to be decided by the court on the basis of the subject matter of the contract and the conditions of the market in which the offer is made. Offers to take shares in companies are normally accepted quickly because the price fluctuates in the market. The same would be true of an offer to sell perishable 易腐烂的 goods. And the form in which the offer is made is also relevant so that an offer by cable could well lapse quickly.
Lesson Four
Essentials of Contract ---Offer (2)
Contents
1. Termination of offer 2. Revocation of offer 3. Irrevocability of offer
1. Termination of offer
2. Revocation of offer
As to the question whether an offer can be revoked before acceptance, common law system and civil law system have different opinions. It is held in such countries as Germany, Switzerland, Greece and Brazil that an offer cannot be revoked or modified for the stated period of time or for a reasonable time if no time is stated, unless in the offer are written these words “Ohne obligatio 不受约束”. However, in France, all offers are revocable prior to the time of acceptance and the offeror must be liable for a certain amount of damage if he revokes his offer within the stated time of acceptance.
b. If there is no specific time given, it will lapse after a reasonable time合理期间. This will depend on the individual circumstances and the type of goods concerned.
按照英美合同法“对价”的理论，要约作为诺言在被 承诺以前是无对价的，对发出要约的人没有拘束力， 因而在要约被承诺以前是可以撤销的，即使是附承诺 期限的要约也是如此。大陆法国家则一般认为，要约 一发出生效就不得撤销。
Facts: Byrne v. Van Tienhoven The def (Cardiff) wrote on 1 October to the pl (NY) offering goods for sale. On 8 October the def wrote revoking their offer. On 11 October the pl received the first letter of offer and immediately telegraphed acceptance. On 20 October the second letter of revocation reached the pl who had by this time entered into a contract to resell the goods. The revocation did not arrive until AFTER the acceptance from the pl was confirmed by post. It was held that there was a binding contract on acceptance. Revocation was communicated after acceptance.
E. Revocation An offer can be revoked at any time before acceptance. The basic requirement is that a revocation requires communication to the offeree of the fact that the offer is no longer open. A revocation is only effective upon receipt.
Termination can occur in the following ways:
A. Acceptance This will normally mean the offer is no longer available to anyone else.
B. Refusal A direct rejection terminates an offer, and it cannot thereafter revived by the offeree’s attempt to accept. In a general view, a rejection is not effective until it is received by the offeror.
Facts: Hyde v. Wrench (1840) ห้องสมุดไป่ตู้n offer was made to sell at £1000, the buyer refused but offered £950. The seller rejected this. The buyer then offered the original £1000 and the seller rejected. It was held that the buyer could not insist on buying at the original £1000 as the offer had been destroyed by his counter offer.
A. Revocation of an offer must be communicated to the offeree. It is not effective on posting. B. Revocation of offer may be not necessarily be communicated by the offeror, but from a reasonably reliable source (third party) that indicates that the offeror no longer intends to be bound by the terms of his offer, this is effective as a revocation of the offer.