1. What are the procedures for establishing an international cargo sales contract

 

Enquiry (enquiry), also known as inquiry, refers to one party asking the other party about the trading conditions. You can only ask for the price, or you can also ask for one or several other trading conditions until you ask the other party to make an offer, that is, ask for all the trading conditions. In the actual business, the buyer takes the initiative to send inquiries.

 

An offer, also known as an offer price, is legally called an "offer", in which one party (offer-offeror) proposes various trading conditions to the other party (offeree-offeree) and is willing to communicate with the other party according to these conditions An affirmation of closing a deal and entering into a contract.

 

A counter offer, also known as a counter offer, is an indication that the offeree does not fully agree with the offer content and proposes a modification or change. The counter offer is not only the rejection of the offer by the offeree, but also a new offer made by the offeree in the status of the offeree. The offer of one party loses its effectiveness after the counter offer is cancelled by the other party. Unless the original offer is approved, the receiver shall not regret after the offer and accept the original offer.

 

Acceptance (acceptance), legally referred to as "commitment", is the buyer or seller agrees to the transaction conditions proposed by the other party in the offer (including the offer in the counter offer), and is willing to conclude a transaction with the other party and conclude a contract accordingly, is An affirmative expression. Once the offer of one party is accepted by the other party, the transaction is concluded and both parties shall perform their respective contractual obligations.

 

In summary, inquiries and counter-offer are not indispensable in the negotiation of every transaction. Even if the respondent makes a counter-offer, it also rejects the original offer and makes a new offer. Therefore, to reach a transaction, offer and acceptance are the two indispensable links in the transaction negotiation process.

 

According to the "United Nations Convention on Contracts for the International Sale of Goods", to constitute an effective offer, the following conditions must be met:

 

1. Make a proposal to conclude a contract with one or more specific assignees;

 

2. Demonstrate the intention to accept constraints when accepted;

 

3. The content must be very certain.

 

In addition, the offer should only take effect when it is delivered to the offeree, and to constitute an effective acceptance, the following conditions must be met:

 

1. Made by the offeree designated by the offer;

 

2. Agree to the conditions raised by the offer;

 

3. Serve the offerer within the validity period specified in the offer;

 

4. Express it with a statement or other action. Accepting in thought but remaining silent or inaction does not constitute acceptance.

 

Second, the characteristics of international goods sales contracts

 

1. The subject matter of the international goods sale contract is the goods

 

Since the specific content and boundaries of goods are difficult to define, the United Nations Convention on Contracts for the International Sale of Goods uses the “exclusion method” to determine the scope of the sale of goods, that is, certain types of goods sale contracts are excluded from the scope of application of the Convention. They are:

 

(1) The sale of goods for private, family or household use, unless the seller does not know at any time before or when the contract is concluded and there is no reason to know that the goods are purchased for any such use;

 

(2) Trading through auction;

 

(3) Enforce the sale of writs or other writs in accordance with the law;

 

(4) Trading of public debt, stocks, investment securities, and negotiable instruments;

 

(5) The sale of ships, vessels, hovercraft or aircraft;

 

(6) Trading of electricity;

 

Among the above six types of subject matter of sales contracts excluded from the application of the Convention, some are not in the category of goods, such as public debt, stocks, investment securities, negotiable instruments, etc., and electricity is not included in the category of goods in many countries; some are Subject matter of special trade, it is more difficult to unify these special trades. For example, goods purchased for private, family or family use belong to the sale of consumer goods. Most countries pay attention to protecting the interests of consumers and formulate laws that protect consumers, and they are all mandatory laws. In order to avoid conflicts, the convention excludes them; the auction situation is more complicated, and each country has its own Special laws, auctions are generally subject to the laws of the country where the auction takes place. Therefore, the convention leaves the auction to the jurisdiction of the country where the auction takes place; the sale of goods authorized by the enforcement writ or law is fundamentally different from the sale of general international goods. The terms of the contract cannot be negotiated, and the method and effectiveness of the sale must be governed by the special legal rules of the relevant country; the sale of ships, aircraft, etc. must also be subject to the domestic laws of each country, and it is also difficult to unify. Therefore, they are excluded from the scope of application of the Convention.

 

2. International goods sale contracts are international

 

The so-called international nature of the contract for the sale of goods is, from a country ’s perspective, the so-called “foreign-related factor”. But the "internationality" of the convention is different from the "foreign-related factors" we understand. The so-called "foreign-related factors" generally have three aspects: first, one of the parties to the contract has foreign nationality; second, the goods sold are located abroad; third, the contract is signed, performed, and disputes are handled abroad. The "internationality" referred to in the Convention is only for the subject, and it is marked by the place of business of the parties to the contract in different countries. In other words, as long as the place of business of the buyer and the seller is in different countries, the contract for the sale of goods concluded by them is international.

 

The key to determining whether a contract for the sale of goods is international is to determine the place of business of the parties. The so-called place of business refers to a fixed, permanent, independent place for business. The premises where the representative office is located (such as the permanent representative office of a foreign company in China) is not a "place of business" in the sense of the Convention. The legal status of these institutions is actually an agent in the agency relationship. They are acting on behalf of their home country companies. In this way, the contract for the sale of goods signed between the Chinese party and the resident representative of the foreign company in China still has "internationality" in the sense of the convention.

 

Nowadays, the economic ties between countries are getting closer and closer. With the rapid development of international investment, the parties' business locations are not static. Therefore, the Convention also stipulates the time standard for determining the place of business of the parties. According to Article 1, paragraph 2, of the Covenant, the determination of the parties ’place of business“ has to take into account what the parties know or envisaged at any time before or during the conclusion of the contract. ”This article has two meanings:

 

The first level of significance is that only from the facts disclosed in the contract or when the contract is concluded that the parties ’business locations are indeed in different countries, the contract for the sale of goods between them is international. For example, a party with a place of business in country A entrusts a representative with a business office in country B to enter into a sales contract with a company in country B, and the agent only indicates that he is entering into a contract with a third party on behalf of the agent , But did not indicate the name of the agent, nor did it disclose the fact that the agent ’s place of business was indeed in country A. In this case, this contract for the sale of goods will be considered as a contract concluded between the parties in the same country (country B), and therefore does not have "internationality" in the sense of the convention.

 

The second meaning is that when the contract is concluded, the business locations of both parties are in different countries, but after the contract is concluded, the business location of one of the parties has changed, then the business location at the time of contract conclusion shall prevail, without affecting the contract for the sale of goods Internationality.

 

The convention also stipulates that if the party does not have a place of business, the place of habitual residence shall prevail. In international trade, it is possible that the parties have no place of business. In this case, as long as the parties are habitually resident in different countries, then the contract for the sale of goods they have concluded is "international."

 

It should be particularly emphasized that the nationality of the parties is not a measure of whether the contract for the sale of goods is international. The nationality of the parties, whether they are the same or different, does not affect the "internationality" of the contract for the sale of goods. In other words, as long as the place of business of both parties is in a different country, even if they have the same nationality, the contract for the sale of goods between them is also international. Conversely, even if the parties have different nationalities, but their business locations are in the same country, then the contract for the sale of goods they have concluded is not international and therefore not within the scope of the Convention. For example, if both parties have the nationality of country A, the seller has a place of business in state A, and the buyer has a place of business in state B, then the contract for the sale of goods they have concluded is international.

 

3. The legal relationship involved in the international sale of goods is complex and risky

 

In import and export activities, both parties must have a legal relationship with a transportation company, insurance company, or bank. Long-distance transportation will encounter various risks. The use of foreign exchange for payment and the use of international settlement methods may cause foreign exchange risks. In addition, it also involves changes in relevant government foreign trade laws and policies. Therefore, the international goods sale contract is a comprehensive manifestation of the parties' rights, obligations and risk responsibilities.

 

4. Diversity of law application

 

The legal application of international sales contracts is more complicated than domestic sales contracts. It generally involves international conventions, international practices, and the domestic law of the country to which the parties to the transaction belong.

 

3. Issues concerning the signing of contracts and related documents

 

In international trade, due to the distance between buyers and sellers, and the price of commodities changing rapidly, many companies use e-mail, fax, or even online chat to sign trade contracts with foreigners based on efficiency. Increased efficiency and increased risk. It is recommended that foreign trade enterprises try to require the other party to sign the contract by mail or fax as much as possible after signing the contract by mail, fax the original of the contract with the official seal of the unit or the legal person, and mail to the enterprise. Claim related rights.