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4.In relation to the Contract Law of China:
(a) explain the term withdrawal of an offer;
(b) explain the term revocation of an offer;
(c) distinguish between withdrawal of an offer and revocation of an offer;
(d) state whether a contract is formed where an offer and a notice of withdrawal of the offer reach the offeree simultaneously.
答案:
4 This question requires candidates to explain the terms withdrawal of an offer and revocation of an offer, make a comparison on these two legal terms and state the formation of a contract if an offer and the withdrawal of the offer reach the offeree simultaneously under the Contract Law of China.
(a) In accordance with Article 17 of the Contract Law, the term withdrawal of an offer refers to such an expression made by an offeror to the offeree to withdraw an offer before or at the same time as the arrival of the offer.
(b) In accordance with Article 18 of the Contract Law, the term revocation of an offer refers to such an expression of invalidating the offer made by the offeror to the offeree after the arrival of the offer but before the offeree has despatched an acceptance.
(c) The major differences between withdrawal of an offer and revocation of an offer are the following:
(i) Withdrawal of an offer can only be made before or at the same time as arrival of an offer; while revocation takes place at the time when an offer has already reached the offeree but this party has not yet despatched an acceptance. The key difference between the two terms rests with the time when the expression not to set up a contractual relationship by the offeror reaches the offeree. Therefore, if such an expression reaches the offeree later than that of the offer, the offer cannot be withdrawn.
(ii) Even if an offer is an irrevocable one, it may be withdrawn by the offeror through an expression of withdrawal of the offer. On the other hand, an offer cannot be revoked by the offeror if the offer is an irrevocable one or if it meets the conditions of irrevocability as set forth in the law. The circumstances of irrevocability of an offer include that the offer indicates itself to be irrevocable or sets forth a time limit for acceptance.
(d) In accordance with Article 17 of the Contract Law, an offer may be withdrawn if the notice of withdrawal reaches the offeree before or at the same time as the offer. Therefore, no contract is formed if an offer and a notice for the withdrawal of the offer reach the offeree simultaneously.
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