There are two traditional forms of contract, oral and written. Oral form refers to the agreement reached by the parties through direct expression such as oral or telephone. Written form means that the parties use indirect expression, that is, written form, to express the contents of the agreement. China's Contract Law extends the traditional written contract form to the data message form. According to ((Contract Law)), written form refers to the forms that can tangibly express the content, such as contracts, letters and data messages (including telegrams, telex, faxes, electronic data interchange and e-mails). That is to say, no matter what carrier is used in a contract, as long as it can tangibly express the contents contained, it is regarded as meeting the legal requirements for "writing".
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(1) Offer and invitation to offer
An offer refers to the expression of intention expressed by one party to the other party in order to conclude a contract. With regard to the form of offer, Article 1 1 of the United Nations Model Law on Electronic Commerce stipulates that, unless otherwise agreed by the parties, both the offer and acceptance of a contract can be expressed by electronic means, and the validity or enforceability of the contract shall not be denied just by using electronic means. The form of an offer can be express or implied.
An offer usually has a specific form and content. To be legally effective, an offer must have specific effective elements:
1. An offer is an expression of will made by a specific person who has the ability to conclude a contract.
2. An offer must have the intention to conclude a contract.
3. An offer must be made to the offeree with whom the offeror wishes to conclude a contract.
4. The contents of the offer must be clear, specific and complete.
5. The offer must be delivered to the offeree.
Invitation to offer refers to the expression of intention that others want to make an offer to themselves. In e-commerce activities, should the online advertising behavior of merchants engaged in electronic transactions be regarded as an offer or an invitation to offer? There are different views in academic circles on this issue. One view is that this is an invitation to offer, and they think that these advertisements are aimed at an unspecified majority of people. Another view is that it is an offer, because the contents of these advertisements are specific, including complete transaction information such as price, specification and quantity.
Once an offer is made, it shall not be revoked or withdrawn at will, otherwise the offeror must bear the liability for breach of contract. Article 18 of China's Contract Law stipulates: "An offer takes effect when it reaches the offeree".
Because electronic transactions are conducted electronically, the content of the offer is the spread of digital information on the network. Usually, the offeror presses the confirmation key on his own computer, and another computer receives the contents of the offer almost synchronously. This technology has changed the concept of time and place in traditional transactions. In order to clarify the arrival standard of an offer in electronic transactions, the second paragraph of Article 16 of the Contract Law stipulates: "If a contract is concluded in the form of a data message, and the recipient designates a specific system to receive the data message, the time when the data message enters the specific system shall be regarded as the arrival time; If no specific system is specified, the arrival time shall be the first time that the data message enters any system of the addressee. "
(2) Commitment
Acceptance, also known as acceptance or acceptance, refers to the intention of the offeree to agree to the contents of the offer and conclude a contract with the offeror. Article 2 1 of China's Contract Law stipulates that "acceptance is the expression of the intention of the offeree to agree to the offer". Whether the expression of will constitutes a commitment requires the following elements:
1. The acceptance must be made by the offeree to the offeror.
2. Acceptance must be a clear expression of consent to the offer.
3. The content of the acceptance cannot substantially change the content of the offer.
4. Acceptance shall be made within the validity period of the offer. If the offer does not stipulate the time limit for acceptance, if it is made through dialogue, it shall be accepted immediately, if it is made through non-dialogue