The defendant refused to accept the trial result of the first instance and appealed according to law. After trial, the court of second instance held that although the appellant did not seal the pre-sale contract, the appellant gave the appellee a complete text of the pre-sale contract, and the appellee signed the pre-sale contract and paid the first house payment as agreed in the pre-sale contract. The appellant accepted the contract and the invoice for the house payment, and both parties to the pre-sale contract have actually performed it. Therefore, the court of first instance confirmed the establishment of the pre-sale contract. The appellant used his dominant position in the process of selling houses to overturn the pre-sale contract reached and actually performed by both parties without authorization on the grounds that the written contract was not stamped, which lacked factual and legal basis and violated the principle of good faith. According to Article 153 (1) of the Civil Procedure Law, the appeal was dismissed and the original judgment was upheld.
[Basic knowledge]
This case involves the difference between an offer and an invitation to offer, that is, whether the text of the pre-sale contract provided by the defendant to the plaintiff in August 16 is an offer or an invitation to offer. Offer, also known as offer, offer, bid or quotation, refers to a party's intention to put forward the terms of the contract to the other party in order to conclude the contract and hope that the other party will accept it. Offer is the starting point of contract conclusion and the beginning of the process of contract conclusion by the parties. Invitation to offer, also known as invitation to offer, refers to the expression of intention that others want to make an offer to themselves. Its purpose is not to conclude a contract, but to invite the other party to express their intention as an offer.
This case also involves the establishment of the contract, that is, whether the defendant's failure to sign and seal the text of the pre-sale contract affects the establishment of the contract. The establishment of the contract is a result of the conclusion of the contract, which marks the emergence and existence of the contract. It means that the parties reach an agreement on the contents of the contract and conclude the contract. According to Article 25 of the Contract Law, a contract is established when the acceptance takes effect.
[Legal issues]
The focus of the dispute between the two parties in this case is whether the house pre-sale contract is established, and the key to solve this problem is to determine the nature of the defendant's behavior of providing the plaintiff with the text of the pre-sale contract, that is, whether it is an offer or an invitation to offer.
(A) the legal composition of the offer
An offer is an expression of intention to conclude a contract with others. According to the provisions of Article 14 of China's Contract Law and the contract theory and legislation of other countries, an offer shall meet the following conditions:
First of all, an offer must have the intention to conclude a contract. The purpose of an offer is to sign a contract with the other party, so an offer must contain an expression of intention to sign a contract through a transaction. This element of the offer emphasizes that the offer is not an expression of "starting negotiations with the other party", but its intention is that once the offer is accepted, the contract will be established.
Second, the offer contains the basic elements of the establishment of the contract. Judging from the expected effect of the offer, as long as the offeree agrees to the offer, the contract is established. In order to fulfill the established contract, the offeror must completely design the rights and obligations of the parties. In other words, in order to achieve this goal, the content of the offer must include the most basic elements of the contract. Article 12 of China's Contract Law stipulates that the contents of a contract shall be agreed upon by the parties, and shall generally include the following terms: the name and domicile of the parties, the quantity, quality, price or remuneration of the subject matter, the time limit, the place and method of performance, the liability for breach of contract, and the way to resolve disputes. China's "Contract Law" carries out the concept of freedom of contract, and does not stipulate the basic terms of the contract. A contract is established when the basic terms are stipulated in the offer and accepted by the offeree. However, when the basic terms required by law are not stipulated in the offer, can the contract be established when the offeree replies to the offer? Judging from the judicial practice of other countries, the omission or unclear conclusion of the terms does not necessarily hinder the establishment of the contract. Only when the missing clause is the core clause of the contract, and the court can't determine the clause by the method prescribed by law, can the offer be invalid. Articles 6 1, 62 and 63 of China's Contract Law stipulate that after the contract comes into effect, if the parties have no agreement or are unclear about the quality, price or remuneration, and the place of performance, they can supplement it through agreement; If a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant provisions of the contract or trading habits. If the parties are not clear about the contents of the relevant contract and cannot be determined according to the relevant provisions of the contract or trading habits, the relevant provisions of the contract law shall apply.
Third, the offer must indicate the intention of the offeror to give up the final decision. Once the offeror expresses his intention to conclude a contract to the offeree, he should leave the final decision on whether to conclude a contract to the other party rather than himself, that is, he should indicate that once the offer is accepted by the offeror, it will be bound by it. China's contract law stipulates that once an offer reaches the offeree, it may not be withdrawn or changed without authorization within the time limit stipulated in the offer. The contract is established as soon as the offeror accepts it. But in real life, if the offeror stipulates the reservation conditions in the offer, can it still be called an offer? The so-called reservation condition in an offer refers to a restriction adopted by the offeror to conclude a contract. This restriction can sometimes be expressed as a reservation to the final decision to conclude a contract, and sometimes it can also be expressed as a reservation to the decision to conclude a contract under certain conditions. From the original intention and mission of an offer, it can't be an offer when the reservation conditions are stipulated in the offer, because it makes the offeree in an uncertain state, and even if the offeree promises, the contract can't be established, which is contrary to the concept of an offer in a strict sense.
Fourthly, an offer must be made by the offeror to the person with whom he wishes to conclude a contract. The person who wishes to conclude a contract with him can be a specific counterpart or an unspecified counterpart. The specific counterpart can be one person or many people. Making an offer to an unspecified person is generally open to the public. China's "Contract Law" does not explicitly stipulate this, but from the provisions of Articles 14 and 15, it does not exclude unspecified persons. From a legal point of view, an offer is the right to promise to the offeree, that is, once the offeror chooses a partner to conclude a contract, the problem to be solved is only the content of the contract. In this sense, the particularity of the counterpart should be regarded as an important factor in the establishment of the offer. If you can't specify a counterpart, it means that the person who made the suggestion didn't choose the real counterpart, and made the suggestion only to arouse the offer of others. However, due to the scale of commodity production and commodity management in modern society, it also provides an objective basis for the public to express their intention to conclude a contract in the form of an offer. Under certain conditions, it is beneficial for the offeree to regard the expression of intention to conclude a contract as an offer to the public. From this point of view, the offeror can be allowed to make an offer to an unspecified person under the condition of voluntarily bearing the consequences of the behavior.
It should be pointed out that not every expression of intention related to the conclusion of a contract is an offer, and sometimes the expression of intention only arouses the consciousness of the counterpart to conclude a contract, that is, the counterpart makes an offer to himself, which is the so-called invitation to offer. Therefore, an invitation to offer refers to the expression of intention that others want to make an offer to themselves. Although the invitation to offer looks like an offer, it should be distinguished from an offer because the actor does not have the purpose of actively concluding a contract. How to distinguish an offer from an invitation to offer in judicial practice is not an easy task. As Atia said, "We often try to explain the difference between a situation classified as an offer and a situation classified as an invitation to offer, but it is difficult to put forward general rules." (Atia: Introduction to Contract Law, 42 pages, Beijing, Law Press, 1982). According to China's judicial practice and theory, the distinction between offer and invitation to offer mainly depends on the meaning expressed by the parties, the content of the contract proposal, whether it includes the main terms of the contract and the trading habits. According to these standards, it can be concluded that the defendant's pre-sale of the contract text to the plaintiff is an offer in nature, not an invitation to offer. The specific reasons are as follows:
First, Beijing company has the intention to conclude a contract on its own initiative, rather than hoping that the plaintiff will make an offer to it. In this case, the text of the pre-sale contract was provided by Beijing Company, and Beijing Company gave the text of the pre-sale contract to Chen Haiyan, the plaintiff, for signature and seal, which fully showed his intention to conclude the contract on his own initiative.
Second, the text of the pre-sale contract provided by Beijing company is complete, including the main terms of the future contract, which is different from the invitation to offer. In this case, the pre-sale contract of commercial housing belongs to the sales contract, and the pre-sale contract provided by the defendant has complete terms, including supplementary terms and attachments, which not only stipulate the subject matter and quantity (the house developed by Jingcheng Company, Room XX, Unit B, Jingcheng Building, Zhangjiabang Road, Pudong New Area, Shanghai), but also stipulate the total price, payment method and time limit (2001August 165438). Yuan mortgage, provident fund portfolio loan), so its content is specifically determined, in line with the conditions for the establishment of the offer.
Third, according to trading habits, real estate developers usually only allow buyers to accept or reject their own contract texts. The contract text they drafted is a standard contract, and the buyer shall not modify or add terms. Therefore, they don't invite buyers to send them quotations, but send them quotations.
To sum up, the defendant's act of providing the plaintiff with the text of the pre-sale contract conforms to the constitutive requirements of the offer and belongs to the offer made by the defendant to the plaintiff.
It is worth noting that the pre-purchase agreement signed by the original defendant and the defendant on May 3, 2003 is a contract to conclude a certain contract in the future. Theoretically, it is called an appointment, and its effect is only that the obliging creditor has to ask the other party to fulfill the obligation to conclude this contract (house pre-sale contract). In this case, whether it comes into effect or not does not affect the parties to reach an agreement on this contract (house pre-sale contract) again.
(II) Establishment of the contract
In this case, the defendant handed the text of the pre-sale contract to the plaintiff. According to Article 16 1 of the Contract Law, the offer is valid. The plaintiff signed and sealed the contract text, which was a promise to the offer made by the defendant. After the plaintiff signs it and gives it to the defendant, the acceptance has reached the offeror, and the acceptance takes effect. According to Article 25 of the Contract Law, a contract is established when the acceptance takes effect. But it is worth noting that the pre-sale contract in this case was not established when the plaintiff signed and sealed it and handed it over to the defendant. This is because, according to Article 40 of China's Urban Real Estate Management Law, a written transfer contract should be signed for real estate transfer. Therefore, the pre-sale contract of commercial housing in this case should be the key contract. Article 32 of China's "Contract Law" stipulates: "If the parties conclude a contract in the form of a contract, the contract will be established when both parties sign or seal it." It can be seen that the establishment time of an important contract is different from that of an unimportant contract, which is established when the acceptance reaches the offeror. Therefore, the court of first instance held that the pre-sale contract between the two parties had been established when the acceptance came into effect, and the defendant's failure to stamp the contract did not affect the establishment of the contract, which was debatable. In this case, the plaintiff paid the deposit to the defendant on August 20, and the contract was established when the defendant accepted and issued the invoice for the payment. Because, according to Article 37 of the Contract Law: "When a contract is concluded in the form of a contract, one party has fulfilled its main obligations before signing or sealing, and the other party accepts it, the contract is established." Therefore, after August 20th, Beijing Company should fulfill its contractual obligations and claim that the contract is not legally established.
[Case study]
This case involves the difference between an offer and an invitation to offer and the establishment of a compulsory contract. The Commodity House Pre-sale Contract provided by Shanghai Jingcheng Real Estate Development Co., Ltd. to plaintiff Chen Haiyan on August 16, 2006 meets the constitutive requirements of the offer, and is not an invitation to offer. The plaintiff signed and sealed the text of the pre-sale contract and handed it over to the defendant, which was a commitment to the defendant's offer and took effect. However, the pre-sale contract between the two parties was not established because the defendant did not sign and seal it, which did not meet the conditions for the establishment of a mandatory contract stipulated by law. The real establishment time of the pre-sale contract is August 20, that is, the plaintiff fulfilled the main obligation of paying the down payment, and the defendant accepted and issued an invoice for the payment. Therefore, the court of first instance found that the pre-sale contract was correct, but the basis was wrong, and the court of second instance had more reasonable reasons for hearing it.