Qualitative analysis of online store commodity display behavior: offer or invitation to offer?

When we buy a specific product in Taobao, JD.COM, Vipshop and other online stores, the system will generate an order, and after we pay, the delivery status will be displayed on the website. If the merchant does not deliver the goods all the time, we can remind him to deliver the goods. Every step has a time limit. In the case that the merchant has not delivered the goods, we can choose to refund. If this product is really needed, can we ask the merchant to continue to fulfill the obligation of delivery? (hereinafter referred to as "case 1")

In other words, the online store's commodity display behavior is an offer, and generating an order and paying is a promise. Then the contract has been established, and the buyer can ask the merchant to continue to perform the contract; The online shop's commodity display behavior is an invitation to offer, generating an order and paying for it is an offer, and the merchant's agreement to deliver the goods is a promise. Prior to this, the contract has not yet been established, and the buyer cannot ask the merchant to continue to perform the contract.

I related terms and descriptions of several online stores

(a) the format of the terms of the invitation to offer

1. vipshop: After you place an order through this website, it only means that the system has received your order. Only when Vipshop will send you the goods on the order will the sales contract between the two parties be established. Moreover, if you order a variety of goods in an order, Vipshop will only send you a part of the goods, and you and Vipshop will only establish a sales contract for the part of the goods that Vipshop has already sent. (/gp/help/customer/display . html/ref = footer _ claim？ ie = UTF8 & ampnodeId=200347 160)

(2) The format terms are not clear.

1. Taobao: As the information publishing service provided by Taobao belongs to BBS, the store and product information (including but not limited to store name, company name, contact person and contact information, product description and explanation, relevant pictures and videos, etc.). ) provided and uploaded by users themselves, and users shall bear corresponding legal responsibilities for the information provided and uploaded. If the service provider of Taobao agrees otherwise, it will be clear with you in the relevant agreement or other legal texts.

3. Description

According to the format clause in the above (1), the contract is not established until the merchant confirms the delivery or list. According to the format clause in (2) above, it is necessary to specifically judge whether the commodity information constitutes an offer.

Second, the referee's opinion

Amazon case

1, and consider the contract established.

For the terms of Amazon's offer invitation format, Amazon website should attract consumers' attention in a significant way. However, from the aspect of Amazon website registration, Century Excellence did not require registered users to read and agree to its "conditions of use"; And from the page display, the related link of "Conditions of Use" is located at the bottom of the website, which can only be viewed by clicking the link and is not easily recognized by consumers; In the aspect of viewing orders, Century Excellence Company shows the product model, order quantity, delivery address, payment method, etc. The font is bold, but it only indicates "conditions of use" in ordinary font, and it is displayed in dark font at the bottom of the page, which is not easy to be noticed by consumers. Amazon.com's "Terms of Use" are not binding on Chen Wei, and the contract between Century Excellence and Chen Wei is established without other special agreements between the two parties.

The second-instance civil judgment of Beijing Century Zhuo Yue Information Technology Co., Ltd. and Sun Anle on the dispute over the sales contract (Beijing No.3 Intermediate People's Court Civil Judgment (20 14) No.09382).

Beijing Century Zhuo Yue Information Technology Co., Ltd. v. Ning (Beijing No.3 Intermediate People's Court (20 14) No.09381)

2. The contract is not established.

(1) Although this part of the format terms of Amazon's offer invitation is not bold and black, the contract conclusion content in the 2007 edition of the terms of use does not involve exempting or limiting the defendant's liability, and there is no deliberate concealment of the contract conclusion content in the typesetting of this edition of the terms of use. This part is only an agreement on the service rules and the way of contract conclusion, and does not exclude the other party's main rights and increase the other party's responsibilities, which is in line with the law.

(2) Commercial transactions should follow the autonomy of both parties, and the parties should respect the agreement of the transaction subject when it is displayed as an offer or an invitation to offer or the website has made a statement in advance. The Amazon website clearly stipulates in the terms of use that the nature of commodity display is an invitation to offer, and the order placed by consumers is an offer. Only when the website sends a delivery confirmation can it constitute a commitment. When the consumer agrees to the conditions of use, it is deemed that both parties have reached a consensus on this. Therefore, after the consumer places an order for payment, the website confirms that the contract is not established before delivery. Century Excellence has not confirmed that it can deliver goods to Huang Xiaojie, so the business relationship between the two parties has not yet been established.

(2) Taobao case

1, and consider the contract established.

(1) The sales contract is a promise contract, and the appellee's commodity webpage contains the necessary contract terms such as the name of the party (the company's business license has been publicized on Taobao), the name and quantity of the subject matter, which belongs to the contract offer. After seeing the necessary information of the above contract, the appellant immediately placed an order to purchase and pay, which is a contract commitment.

(2) The information on the Appellant's product page is clear and specific, which constitutes a binding offer, not an invitation to offer or a product advertisement.

(3) The commodity information released by the defendant Yumanjia Company on the website clearly records the name, price, payment method and delivery method of the commodity, and the content is specific and clear, which conforms to all the characteristics of the contract offer, and is not a product promotion method or an invitation to offer. After discovering the sales information of the goods involved, the plaintiff conducted the transaction according to the trading procedures set by the website and completed the transactions such as ordering and payment, which constituted an effective commitment to the defendant's offer, and the contract between the two parties was established and came into effect.

(3) Analysis

1. Through vertical comparison, the Beijing No.3 Intermediate People's Court held in 20 14 that Amazon's format clauses have no effect on consumers, and further believed that commodity display constitutes an offer, and consumers' purchase behavior belongs to a promise. 20 17 thinks that the format clause conforms to the autonomy of will, and the contract is established only after Amazon confirms it. This change is due to the change in the way Amazon prompts. "When consumers shop on Amazon, they enter the login page and enter their email or mobile phone number and password. The conditions of use appear below the login button in the form of link buttons. The consumer puts the selected goods into the shopping cart, fills in the receiving address, payment method and other information, and then continues to enter the order viewing page. "Check order" appears at the top of the page in bold and enlarged fonts. The common fonts below indicate, "When you choose our products and services, it means that you have accepted Amazon's privacy statement and terms of use. After you click the submit order button, we will send you an email or a short message to confirm that we have received your order. Only when we send you an e-mail or SMS confirming delivery, will we confirm your order and the order contract between us and you will be established. "

2. By horizontal comparison, the defendants are all Amazon, and the judgment of Beijing No.3 Intermediate People's Court No.2014 is inconsistent with the judgment of Shanghai Pudong New Area People's Court No.2015.

3. Because Taobao has no formal terms of invitation to offer, the cited cases all think that commodity display constitutes an offer.

Three. conclusion

1, "Judgment Opinion: Determination of the Relationship between Appointment Contract and House Purchase and Sale" mentioned that even if the contents, quantity and amount of the appointment contract are clear, the parties agree that the contract is an appointment, and the court should respect the autonomy of the parties. This view shows that the agreement of specific terms is more worthy of attention.

2. In the absence of formal terms of invitation to offer, we can judge the nature of online store merchandise display behavior according to the characteristics of offer and invitation to offer. Generally speaking, online store merchandise display behavior is an offer.

3. In the case of format terms of invitation to offer, if consumers are not specially reminded, the format terms of this invitation to offer may not be effective for consumers, so the product display behavior of online stores belongs to an offer. Only by reminding consumers in a special way can the standard terms of this invitation to offer play a role.

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