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Answers and explanations business law II exam
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Answers and explanations business law II exam
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General CommentsQuestion 1
Which of the following statements is incorrect ?
[A] Under Dutch law an offer without engagement and an invitation to
treat are identical.
[B] Under Dutch law an offer is a set of terms by which the offeror is willing to be
bound.
[C] In bilateral common law contracts the parties exchange promises.
[D] Under the PICC 2010 acceptance is possible through conduct
Answers and Motivations
A is incorrect so the right answer. See Dutch contract law from p. 141 onwards.
See on offer risks page 145 which mentions the invitation to treat which is not an
offer as not directed to a specific person. See also index which refers to page
145. An offer without engagement is an offer which can be accepted see page
146.
B reflects the essence of an offer which is a legal act under Dutch law. See page
143 on offer and acceptance being legal acts and as a result must meet the
intention and declaration requirements So this statement is correct as the offeror
(see page 143) is the party who makes the offer so expresses by what, of
accepted, he or she wants to be bound.
C on bilateral contracts see page 142, also index refers to page 142, and on
exchange of promises on page 152 in 6.3.2 on English law which is is the basis of
common law, as dealt with in BL I and on page 24 ‘evolved in England’. English
, contracts are bilateral as the consideration requirement, see page 153, reauires
both parties to give up something, which matches the bilateral concept on page
142.
D The use of PICC requires students to make then link with the UNIDROIT
principles as outlined on pages 135-137. Art 1.1(see included on page 136) states
on manner of formation that acceptance of an offer is possible by conduct.
Students’ Comments
Examiner’s Comment
Question 2
Where under Dutch law a written proposal for a contract does not stipulate an
expiry date, it will remain open:
[A] until accepted by the legal subject to which the proposal is made
[B] until expressly revoked by the legal subject by which the proposal is made
[C] until a counter-offer is made by the legal subject to which the proposal was
made
[D] until some time has passed after the moment the offer was made
See on Dutch law page 141 and further. The written proposal is an offer as it
presents the will to enter into a contract by having the proposal accepted.
Proposal for a contract is an offer. On offer risks see page 145 and 146. An offer
can cease to exist when it lapses (page 146). A written offer, as in this question,
does not remain in existence eternally but lapses when not accepted within a
reasonable time. This is the basis for option a and b to be wrong. If the
reasonable time has passed acceptance has no effect anymore and revocation is
impossible as there is no offer anymore. A counter offer indeed , see literally on
page 146 ”an offer loses its force when it is rejected” . A counter offer is a
rejection of the offer. If a counter offer is considered at an acceptance at a
variance this also means the offer is no longer open irrespective whether the
difference is at only secondary issues or not.
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