4.1 INTRODUCTION 4.1简介
The aim of this chapter is to outline some of the key considerations that parties should keep in mind when entering into discussions which may (or may not) culminate in a legally binding contract for the sale and purchase of a ship.
4.2 FORMATION OF CONTRACT 4.2合同的形成
4.2.1 Introduction 4.2.1简介
In most cases the three basic requirements for a valid contract under English law will be:
First, the parties must intend to create a legally binding relationship. In the case of commercial transactions there is a strong presumption that the parties intend their relationship to be legally binding, and will consider it so, given that the negotiations have been successfully concluded. Although this presumption may be rebutted by evidence to the contrary, the burden of proving that there was no such intention is a heavy one. In this situation, arbitral tribunals and the courts will try to determine the parties' objective intentions by reference to what they said and did during the negotiations.
首先，合同双方必须有意图产生具有法律约束力的合同关系。在商业交易的背景下，假设谈判最终成功完成，这有强烈的理由推定，合同双方有意图使他们之间的关系产生法律性的约束力，并将认为会达到这种效果。 虽然这一推定可能会被合同中相反的证据推翻， 但，证明不存在这种意图是一个繁重的责任。 在这种情况下，仲裁庭和法院将试图通过参考合同双方在谈判中的言行来确定他们客观的意图。
Second, there must be a concluded agreement on the essential terms of the contract. This will usually involve two pivotal elements — offer and acceptance — and in relation to these, the following basic rules typically apply.
There must be an offer by one person (the “offeror”) that he is willing to contract on specific terms with the recipient of the offer (the “offeree”). The offer must set out the terms on which the offeror is willing to contract. It may also indicate the manner in which and the time within which the offer may be accepted. An offer must be sufficiently clear and detailed to be capable of acceptance. Arbitral tribunals and courts will generally apply an objective test to ascertain whether or not an offer has been made.
An offer which is capable of immediate acceptance must be distinguished from what in contract law is referred to as “an invitation to treat”. When a person makes an invitation to treat, he does not himself make an offer but he invites the recipient of the invitation to make an offer.
An offer may generally be withdrawn by the offeror giving notice to that effect at any time before the offer is accepted. This may be so even where the offeror has indicated that it will remain open for a specified period unless that indication itself gives rise to a binding contractual undertaking, supported by consideration, to keep the offer open for that period.
A contract will not be concluded until the offer which has been made is accepted by the offeree, and that acceptance is communicated to the offeror. Such an acceptance must be both final and unqualified. It must also correspond to the terms of the offer.
If the terms of the offeree's response differ from the terms of the offer (by seeking to vary the terms of the offer or to introduce new terms), the response may operate in one of two different ways, as set out below。.
It may amount to a tentative move to see whether the offeror is willing to contract on some or all of the terms contained in the response. A tentative move of this kind, if properly worded, will not be a rejection of the original offer, with the result that if the response proves to be unacceptable to the offeror, the offeree may withdraw the response and accept the terms originally offered to him.
Alternatively, the response may amount to a counter-offer which has the effect of terminating the original offer and which may itself then be accepted or rejected by the original offeror in the normal way.
Of course, common sense must be used in the application of the principles described above. An acceptance does not need to use precisely the same words as the offer in order to be effective, principles always that the sense is the same. Furthermore, an acceptance may still be effective if it makes clear some term which the law would in any case imply. In addition, in some circumstances, acceptance may be inferred from conduct.
While the above rules are relatively easy to state, they can often give rise to difficulties, particularly where the parties are involved in complex negotiations over a lengthy period of time. It may often be hard to establish whether and, if so, when an offer has in fact been finally accepted and all the terms have been agreed. In these circumstances the arbitral tribunal or court will look at the whole course of the correspondence and negotiations and decide whether, on the available evidence, the parties have in fact reached agreement on the same terms.
The third basic requirement for a valid contract under English law is that, in most cases, the contract must be supported by consideration, which means that there must be some element of bargainor reciprocity. The basic principle is that each party must give something (even if only a counter-promise) as a price for the promise they receive from the other party. An English arbitral tribunal or court will not usually look to the adequacy of consideration. In the context of a ship sale contract, the requirement for consideration is satisfied by the price payable by the buyer in return for the seller's agreement to transfer title in the ship. Alternatively, a contract may be executed as a deed, which — under English law — removes the need for there to be consideration.
 Edwards v. Skyways Ltd  1 WLR 349 at 355.
 Edwards v. Skyways Ltd  1 WLR 349 at 355.
 Routledge v. Grant (1828) 4 Bing 653.