The Legal Basis Of The Bearing Of Pre-Contract Obligation In The Offer-Inviting Stage

Traditional theories say that the contracting process regards an offer as the "starting point", and that only when an offer is delivered and effected, the pre-contract obligation will be produced between the parties. But the contracting process does not include offer-inviting, which is only preparation for the contract, thus not legally effective itself. Taking advantage of many customers’not knowing this, some enterprises deliberately deceive consumers for exorbitant profit.Some legal provisions in Europe and Taiwan have included offer invitation into the range of pre-contract obligation. But in mainland China disputes still exist between theorists over such problems as the nature of an offer invitation, the distinction between an offer invitation and an offer itself, and whether the stage of offer-inviting should be included into the range of the pre-contract obligation, etc. The author tends to think that it should be included.This article tries, employing empirical, comparative and inductive methods, to demonstrate that pre-contract obligation exists in the offer-inviting stage and that one may have to bear liability for contracting fault if he/she violates pre-contract obligation, and in the last part of the article the author puts forward an idea as to how offer invitations should be regulated.This article is divided into five parts altogether. The first part is introduction; the author begins with related cases, analyzing problems existing in the current judicial practice, and briefly describes the legislative situation of offer invitation in different countries, thus clarifying the necessity and significance of writing this article. The second part mainly discusses the relationship between offer invitation and pre-contract obligation; the author first explains in detail the fundamental theories concerning offer invitation and pre-contract obligation, enabling the readers to have a basic grasp of the theories on these two subjects and preparing them for the author’s following analysis. Then the author gives examples of related theories on the relationship between offer invitation and pre-contract obligation and reveals the author’s point of view. The third part is the core of this article; the author discusses comprehensively the legal basis on which pre-contract obligation exists in the offer-inviting stage. In general, the author analyzes the legal basis mainly from four perspectives:moral consideration of the law, the principle of honesty, the just and righteous idea of the law, and the safety and efficiency of trade. This part facilitates the readers to fully understand the legal basis. In the fourth part, the specific types of pre-contract obligation in the offer-inviting stage and the corresponding legal consequences one has to bear are discussed in detail. In the fifth part, the author puts forward his idea of how to regulate offer invitations, including such measures as making offer invitation within the range of pre-contract obligation, establishing admission regulations on offer invitation, examining to approve or reject important offer invitations, and putting them on file. In the final conclusion, the author makes a general summary of the article.