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9 Trading Co issued an offer to Textile Company to sell 1,000 tons of imported cotton. Among other things, the offer contained the terms and conditions as follows:
(i) price of cotton – RMB 20,000 yuan/ton;
(ii) payment – 30% of total price payment in advance, remaining 70% payment at the time of delivery of the goods;
(iii) transport of goods – cost to be borne by Textile Company, delivery within seven days after the conclusion of the contract.
Upon receipt of the offer, Textile Company replied via a fax to Trading Co which stated: ‘We accept all the terms and conditions of your offer and will take delivery of the goods within seven days upon the conclusion of this contract.
Please keep the cotton in good condition and with sound package.’ Trading Co received the fax but did not respond to it.
Textile Company hired a logistics company, five days after sending the fax, to take delivery of the cotton from Trading Co but failed to take any goods from Trading Co. Trading Co insisted that it was not under a contractual obligation to sell the goods to Textile Company, as there was no contract between the two parties. Trading Co stated further that the fax sent by Textile Company added the term ‘keep the cotton in good condition and with sound package’, which should be regarded as additions to the offer and constituted a counter-offer by Textile Company, rather than an acceptance. Therefore, the two parties did not reach an agreement on the terms and conditions for the sale of the cotton.
Required:
In accordance with the Contract Law of China, analyse the scenario and discuss:
(a) whether there was a contract between Trading Co and Textile Co, and explain your reasoning;
(b) the legal nature of Textile Company’s fax to Trading Co.
答案:
9 This question requires candidates to deal with the legal issues in respect of the formation of a contract under the Contract Law of China.
(a) There was a contract between Trading Co and Textile Company. In accordance with Articles 14 and 16 of the Contract Law, Trading Co sent an offer which had reached Textile Company. Therefore, the offer came into effect. Article 14 states that an offer is an intention to enter into a contract. And Article 16 states that an offer becomes effective when it reaches the offeree.
Textile Company sent back a fax which should be regarded as a reply purported to be an acceptance but contained additions.
However, in accordance with Article 30 and 31 of the Contract Law, package of goods contained in its fax was not a term
which materially changed the term of the offer. Article 30 states that an acceptance which materially alters the term of the offer constitutes a new offer, a change in the subject matter, quality, quantity, price or remuneration, place and method of performance, liability for breach of contract or method of dispute resolution is a material change to the terms of the offer. This is not the case here but in accordance with Article 31 is an acceptance containing non-material changes. Since Trading Co did not promptly object to such non-material changes, the fax constituted an effective acceptance. Upon arrival of the acceptance to Trading Co, the contract was formed.
(b) The nature of Textile Company’s fax to Trading Co was a reply purported to be an acceptance but contained additions. Its legal nature depends on the following expression of Trading Co. Since the offer sent by Trading Co did not contain any term in relation to the package of the goods, however, the fax of Textile Company added this term.
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