bis aftalers indgåelse 1 eng

Ulla Terese KræmerBUSINESS LAW ulkr@easj .dk

Markedsføringsøkonomi | Erhvervsret2

Agreements must be kept

--o--

Contractual freedom

except: Tenancy law

Credit sale contracts law Insurance contracts law

Competition law Marketing law Interest law

FORMATION OF CONTRACT


Make your own lawonly valid between the parties

If we were to make a contract– you and me– what rules should we make?

E.g. Preparation

Attendance Participation in lessons

Consequences of non-compliance

WHAT IS A CONTRACT?


Binding?The burden of proof?Deliberation time?

International dimension?

Oral contracts?

Exceptions:Real estate (registration)Marriage settlementChequesTenancy lawCredit sale contracts law

Main rule: No formal requirements

FORM REQUIREMENTS?

http://www.google.dk/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&docid=eIAvlANe4bK0-M&tbnid=bCAtVRVuLep48M:&ved=0CAUQjRw&url=http://www.wellhappypeaceful.com/who-are-you/&ei=6gojUoqMLqrK0QWAzoD4Dw&bvm=bv.51495398,d.d2k&psig=AFQjCNF4Vj3WWeFPlSsLPvw4FxVb5evpTg&ust=1378114645433951


Off er + acceptance = contract

“Mirror Image Rule”

THE MODEL OF THE CONTRACTS ACT




From when is offeror (seller) bound by his

offer?

OFFER

Main rule : When the offer has come to the buyers notice

Exceptions: Invalid agreements The right to withdraw (before it

comes to buyers notice)

Agreement Customs


Withdraw your offer before the offer comes to the buyer’s notice

Why at this time?The expectations it creates

WHAT IF THE SELLER REGRETS HIS OFFER?


Main rule: Buyer is not required to respond to an offer

Binding effect of passivity?

Exceptions: The seller may reasonably infer that a contract relationship was sought, e.g. sends an order confirmation

ACCEPTANCE


Three time factors:

The time of sendingDeliberation*Return

”reach the off eror” or ”come to the buyers notice”?

*”Reasonable deliberation time” - Concrete assessment- Customs – Price sensitivity – B to B

THE PERIOD FOR ACCEPTANCE


Main rule: New off er

Buyer holds a reasonably justified belief that his acceptance was in fact made on time

Seller must notify the buyer without undue delay that his acceptance was delayed – and therefor not binding for the seller.

The closer to agreement you were - the greater duty to respond

DELAYED ACCEPTANCE


Main rule: Deemed a rejection + counter off er

Exceptions: The seller realise, that the buyer believes that it is an

absolute and unqualified acceptance.

If the seller don’t inform the buyer about the non-conforming acceptance, then the seller is binded by the ”counter offer”

NON-CONFORMING ACCEPTANCE

12 Markedsføringsøkonomi | Erhvervsret

Dispatch Off er Receivial time Awareness

MODEL FOR FORMATION OF CONTRACTS

Reflection time

DispatchReceival timeawareness

Acceptance

Seller Buyer


Electronic data interchange

Requires prior agreement

More detailed rules have been published by ICC (The International Chamber of Commerce)

EDI


BREAK


The contract model: (As in Danish law)

Offer + acceptance = contract

“Mirror Image Rule”

CISG, PART II ART. 14-24


When is an offer binding? (For the seller)

When it reaches the buyer If it’s accepted The acceptance is conforming In due time

ART. 14


1. One or more specific persons

2. Sufficiently definite

3. The intention of the seller

1. what is not covered? unaddressed advertisements2. Suffi ciently defi nite, if: Expressly or implicity fi xes or make provisions for

determining the quality and the price - Indicates the goods – open price??

3. Remember: – the parties' agreement shall be interpreted in accordance with the principle of art. 8– What are the party's intentions?

Customs/permanent business partners - how do the parties enter into agreements?

ART. 14 THREE REQUIREMENTS FOR AN ”OFFER”


What is the difference between an offer and an invitation to make offers?

Is the indication of the price crucial to saying the "offer” is binding?

No reported decisions

ART. 14.2


Art. 15: Withdraw: before the offer take effect (in CISG – recived in DK – awareness)

Art. 16: Revoke: after the offer has taken effect - but before (sent) acceptance

A compromise between civil law and common law. Why should the seller be binded when the buyer is not?

DIFFERENCE BETWEEN ”WITHDRAW” AND ”REVOKE”


Irrevocable offers can be withdrawn if:

If the withdrawal reaches the buyer before or at the same time as the offer

ART. 15.2. SELLERS RIGHT TO WITHDRAW HIS OFFER


Art 16.1.: Off ers can be revoked – if the revocation reaches the buyer before he has dispatched an acceptanceCommon law consideration - Why should the seller be (more) binded when the buyer is not?

Except, if:Art 16.2. (a): There are stated some kind of fixed time for

acceptance or that it’s irrevocable

Art 16.2.(b) The buyer has (good) reason to believe, that the off er was irrevocable and the buyer has acted in reliance on the off er

(customs/previous business)

ART 16. REVOCATION OF AN OFFER


When the buyer rejects an offer it lapses – even if it’s an irrevocable offer

ART. 17 REJECTION OF THE OFFER


Signature of a contract

But could also occur by: The goods is taken into use

Opening the package (software) An activity

E.g. park your car in a parking space) – participating – take the bus etc. Not have used your right to withdraw

But not: inactivity – silence (art. 18)

ART. 18-22 ACCEPTANCE


1.: There must be some sort of conduct from the buyer.

Silence or inactivity does not mount itself to acceptance – seller cannot circumvent this rule by stating in the off er ”that silence by the buyer will

be taken to indicate the buyers assent”

2: An acceptance becomes eff ective when the buyers indications of assent reaches the seller - in time– see. art. 24.

- I f no time is fi xed – reasonable time

3: Within the period of acceptance it can be the practices which the parties have established/ payment of the price/ usage - there indicate the assent

ART. 18 ACCEPTANCE


The acceptance must ”mirror” the offer!

If not= new offer. As in Danish Contrat law § 6

”Battle-of-forms”

”last shot” or ”knock-out”

Art. 19 does not solve the problem

ART. 19 – THE MIRROR IMAGE RULE


In the case of minor amendments, the seller is obliged without undue delay to objects orally to the discrepancy. If the seller don’t – the terms of the contract are those with the modifications contained in the acceptance

Material alterations

Price - payment – quality, quantity of the goods, place and time of delivery, extent of one party’s liability to the other or settlement of disputes - Alter the terms of the off er materially

ART. 19.2. AND 19.3. UNQUALIFIED ACCEPTANCE


When does the period begins?

Date shown on the letterDate shown on the envelope Instantaneous communication = runs from the moment it reaches the

buyer

Offi cial holidays or non-business days are included in calculating the periode, however, if a notice of acceptance cannot be delivered because of a offi cial holidays or non-business day – the period is extended until the following business day

ART. 20 TIME FOR ACCEPTANCE


The offer lapses

If the seller wants to accept the late acceptance, the seller must orally inform the buyer immediately

Is it clear to the seller that the acceptance was sent in a timely manner, but events the buyer did not have any influence at, has led to that the acceptance came too late– Seller shall immediately orally inform the buyer that he will not be binded by his offer.

An obligation to act for the seller, if he does not wish to be bound by its off er

ART. 21 LATE ACCEPTANCE


Art. 22: Withdrawal must happen before the acceptance becomes effective

Withdraw if the withdrawal reaches the seller before or at the same time as the acceptance would have become effective

Art. 24 defi nition of ”reaches”

ART. 22 WITHDRAWAL OF ACCEPTANCE


A contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of

this convention

Or

A contract is concluded when the acceptance reaches the seller

ART. 23 CONCLUSION OF CONTRACT

bis aftalers indgåelse 1 eng

Entertainment & Humor

danish law offer

new offer buyer

time seller

counter offer exceptions

delayed acceptance

unqualified acceptance

law formation of contract

civil law