《合同法》要约生效规则之统一

THE UNIFORMITY OF RULES ABOUT THE EFFECTIVENESS OF OFFER IN CONTRACT LAW

我国《合同法》中关于要约生效的规定存在着冲突。CISG试图调和两大法系对要约生效的规定,但实际上并不成功,因为两大法系的要约规定存在着原则性的冲突。出于对CISG的误解,《合同法》同时包含了两大法系的要约生效规则。我国《合同法》在解释论上应当批判继承CISG的规定,并且服务于我国实际情况。为此,《合同法》第19条应理解为要约在承诺发出前生效的条件,原本作为英美法要约生效原则的《合同法》第18条应作限缩解释,理解为第19条的补充。

There is a conflict about the provisions of the effectiveness of the offer in our ＂contract law＂. CISG tried to reconcile two legal systems about this, but in fact ,it was not not successful.That＇s because fundamental conflicting exists between the two different legal systems on the effectiveness of the offer. Out of misunderstanding of CISG, ＂contract law＂ also contains the two big legal systems of rules on the effectiveness of the offer. ＂contract law＂ on the theory of interpretation should be critical inheritance of the CISG provisions, and serve the actual situation in our country. For this purpose, the ＂contract law＂ article 19 shall be interpreted as conditions of an offer which can be effective and article 19 which was seemed as the principle provision of the effectiveness of the offer in common law system should be construed to limit the interptetation of it. Consequently,it shoud be deemed as an a supplement to article 19. as the common law originally offer effective principle of ＂contract law＂ article 18 should be narrowed, understood as a supplement to the article 19.