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Bis aftalers indgåelse 1 eng
 

Bis aftalers indgåelse 1 eng

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    Bis aftalers indgåelse 1 eng Bis aftalers indgåelse 1 eng Presentation Transcript

    • 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
    • Markedsføringsøkonomi | Erhvervsret3  Make your own law  only 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?
    • Markedsføringsøkonomi | Erhvervsret4  Binding?  The burden of proof?  Deliberation time?  International dimension? Oral contracts? Exceptions:  Real estate (registration)  Marriage settlement  Cheques  Tenancy law  Credit sale contracts law Main rule: No formal requirements FORM REQUIREMENTS?
    • Offer + acceptance = contract “Mirror Image Rule” THE MODEL OF THE CONTRACTS ACT Markedsføringsøkonomi | Erhvervsret5
    • Markedsføringsøkonomi | Erhvervsret6 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? Markedsføringsøkonomi | Erhvervsret7
    • 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 Markedsføringsøkonomi | Erhvervsret8
    • Markedsføringsøkonomi | Erhvervsret9 Three time factors:  The time of sending Deliberation*  Return  ”reach the offeror” or ”come to the buyers notice”? *”Reasonable deliberation time” - Concrete assessment- Customs – Price sensitivity – B to B THE PERIOD FOR ACCEPTANCE
    • Markedsføringsøkonomi | Erhvervsret10  Main rule: New offer  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
    • Markedsføringsøkonomi | Erhvervsret11  Main rule: Deemed a rejection + counter offer  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
    • Markedsføringsøkonomi | Erhvervsret12 Dispatch Offer Receivial time Awareness MODEL FOR FORMATION OF CONTRACTS Reflection time Dispatch Receival timeawareness Acceptance Seller Buyer
    • Markedsføringsøkonomi | Erhvervsret13  Electronic data interchange  Requires prior agreement  More detailed rules have been published by ICC (The International Chamber of Commerce) EDI
    • Markedsføringsøkonomi | Erhvervsret14 BREAK
    • Markedsføringsøkonomi | Erhvervsret15 The contract model: (As in Danish law) Offer + acceptance = contract “Mirror Image Rule” CISG, PART II ART. 14-24
    • Markedsføringsøkonomi | Erhvervsret16 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
    • Markedsføringsøkonomi | Erhvervsret17 1. One or more specific persons 2. Sufficiently definite 3. The intention of the seller 1. what is not covered? unaddressed advertisements 2. Sufficiently definite, if: Expressly or implicity fixes 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”
    • Markedsføringsøkonomi | Erhvervsret18  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
    • Markedsføringsøkonomi | Erhvervsret19  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”
    • Markedsføringsøkonomi | Erhvervsret20  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
    • Markedsføringsøkonomi | Erhvervsret21  Art 16.1.: Offers can be revoked – if the revocation reaches the buyer before he has dispatched an acceptance Common 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 offer was irrevocable and the buyer has acted in reliance on the offer (customs/previous business) ART 16. REVOCATION OF AN OFFER
    • Markedsføringsøkonomi | Erhvervsret22  When the buyer rejects an offer it lapses – even if it’s an irrevocable offer ART. 17 REJECTION OF THE OFFER
    • Markedsføringsøkonomi | Erhvervsret23 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
    • Markedsføringsøkonomi | Erhvervsret24  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 offer ”that silence by the buyer will be taken to indicate the buyers assent”  2: An acceptance becomes effective when the buyers indications of assent reaches the seller - in time– see. art. 24. - If no time is fixed – 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
    • Markedsføringsøkonomi | Erhvervsret25 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
    • Markedsføringsøkonomi | Erhvervsret26  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 offer materially ART. 19.2. AND 19.3. UNQUALIFIED ACCEPTANCE
    • Markedsføringsøkonomi | Erhvervsret27  When does the period begins?  Date shown on the letter  Date shown on the envelope  Instantaneous communication = runs from the moment it reaches the buyer  Official holidays or non-business days are included in calculating the periode, however, if a notice of acceptance cannot be delivered because of a official holidays or non-business day – the period is extended until the following business day ART. 20 TIME FOR ACCEPTANCE
    • Markedsføringsøkonomi | Erhvervsret28  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 offer ART. 21 LATE ACCEPTANCE
    • Markedsføringsøkonomi | Erhvervsret29  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 definition of ”reaches” ART. 22 WITHDRAWAL OF ACCEPTANCE
    • Markedsføringsøkonomi | Erhvervsret30 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