3.2.2 Offer发盘（报盘/报价/要约）
In the above store-shopping example,the shop owner may respond to your enquiry by showing you the jacket and telling you its price—“It’s 200 yuan.”This makes a quotation in a domestic negotiation.A quotation is part of an offer.You may bargain,for sure,but if you like the jacket andaccept the price,a deal is concluded and the shop owner must sell you the jacket under this price.Similarly,in an international negotiation,an offer is a business proposal made by the exporter or importer to express his/her wish to sell or buy particular goods under stated terms.An exporter can make a “selling offer”,and an importer a “buying offer”,or a “bid”.Figure 3-2 below is a possible selling offer you can make for the above case of selling swimming suits.If the same terms in the case were proposed by the importer for procurement,that would make it a buying offer.
Figure 3-2 Offer Made by an Exporter
Offers in international negotiations mostly contain more terms and are more formal(including price,quantity,time of shipment,terms of payment,etc.)An offer,defined by CISG,is legally binding on the offeror—he/she has to execute the deal under his/her proposed terms.See the above offer for swimming suits sent by the exporter.
According to CISG,not all business proposals can be interpreted as“offers”.A business proposal has to meet certain qualifications to be an“offer”,otherwise,it’s just an invitation to make offers,or the so-called “non-firm offers”or “indefinite offers”in practice.Mistaking an invitation to make offers for an offer may cause you troubles.For example,sometimes,the proposal is sent without a specific audience,seeming to be addressing the general public.Don’t rush acting on it—possibly,it’s just an ad.At other times,you,as the “offeree”,feel that the “offeror”is rather vague about his/her intention or readiness to execute the deal under his/her proposed terms.Don’t rush acting,either—the “offeror”may just want to sound out the market by giving you general instead of specific information.At still other times,the“offeror”may want to reserve the right to modify his/her proposed terms by stating “for your reference”or “subject to our final confirmation.”These proposals are indefinite.That’s why they are also referred to as “indefinite offers”or “non-firm offers”as opposed to the so-called “definite offers”or “firm offers”,but essentially,these proposals are not offers,because they don’t have specific audience,nor are they sufficiently definite or clear in their intention to execute the deal under proposed terms.They are just invitation to make offers by nature.
Then,what kind of business proposals qualify for an “offer”?CISG states in Article 14(1)that “A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance”,and in Article 14(2)that “A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers,unless the contrary is clearly indicated by the person making the offer”.According to this definition,two criteria can be used to make the judgement:First,does it have a specific audience?You cannot address a general public in your proposal,like in an ad or a pamphlet,unless otherwise indicated.Youhave to address a specific audience by stating the name of the audience,such as the name of an individual or a business.Second,your proposal has to be “sufficiently definite and indicate your intention to be bound”in case the offeree accepts your proposal.
But how to interpret “definite”?Unfortunately,traders around the world have different understandings regarding this.CISG states in Article 14(1)that “a proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price”.In other words,it considers a proposal definite as long as it has the name,quantity and price of the goods.However,this interpretation is rarely used in practice due to its difficulties in execution.A better solution remains the two criteria mentioned above—a specific audience and a clear intention and readiness to conclude the deal.Phrases like “subject to our final confirmation”or “for reference only”to indicate finality,if present,may also be used for reference.Without these phrases,however,you have to rely on yourself to figure out when you are bound by your offer and how you interpret offers made to you.You are highly suggested to ask the other party to clarify if you are not sure.
An offer generally has to fix a period for acceptance.Please avoid making offers without fixing such a period.An offer takes effect when it reaches the offeree and his/her acceptance within that period is considered effective.
Sometimes,you may want to withdraw your offer after you’ve made it.This often happens when you find an error in the offer or when the market has changed so much that executing the offer would bring you a great loss.Whether can an offer be withdrawn?It depends on the time it reaches the offeree.Article 15(1)of CISG states that “an offer becomes effective when it reaches the offeree.”Therefore,it can be withdrawn “if the withdrawal reaches the offeree before or at the same time as the offer.”(Article 15(2)).This implies that you need a faster means of communication to withdraw your offer,which is sort of like you chase a horse by driving a car.But these stipulations don’t apply when a means of communication that reaches the offeree instantly,such as telephone calls,emails,instant messages,etc.,is employed,which means,the offer cannot be withdrawn in these cases.What if the offer has already become effective?Can we cancel it?Article 16(1)of CISG states that “Until a contract is concluded,an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance.”But it cannot be revoked if the offer has fixed a period of time for acceptance,or has indicated by other means that it is irrevocable.Besides,if it is reasonable for the offeree to rely on the offer as being irrevocable and he/she has acted in reliance on the offer,it cannot be revoked,either.What’s more,when a rejection reaches the offeror,the offer is terminated,even if it is irrevocable.