계약의 성립과 청약의 구속력

Abstract

Under the traditional model of contract formation, a contract are made by mutual assents or agreement. Contracts are the product of the will of the parties, so that it is the willingness to be bound of the parties that justifies legal recognition of enforceable contractual rights and obligations, or an remedy in breach of contracts within the ratification of the law. To resolve the disputes whether or not an offer and an acceptance were matched, the law looks for an offer by an offeror and an acceptance of the terms of the offer by the offeree. It may be difficult to state with confidence whether a particular statement was an offer, an invitation to treat, or a part of continuing process of negotiation between the parties because of its varying degrees of the process. Much will depend on how far a court is willing to go in filling in any gaps left by the parties. But the law cannot impose an agreement on the parties against the intention of the parties in case of vague or incomplete terms though it may purport to the interest of the reasonableness and the fairness. Korean Civil Law § 527 states an offer cannot be revoked. Though an offer may be resulted in the formation of a contract, an offer is only a proposal to enter into a contract to make an power of acceptance, not a contract. So before an acceptance by the offeree within the time of an acceptance has occurred, an offer may be revoked. The irrevocability of an offer may give rise to doubt about the freedom of the contract. The revocability of an offer may be purchased by the power of acceptance created by an offer based on the intention of the offeror. The intention may be implied. But if the offeree has communicated an acceptance to an offeror, or an offer invites to a contractual undertaking, it is reasonable for an offeree to rely on the offer and the offeree has acted in reliance on the offer, an offer cannot be revoked.