Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 900

NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)

Exhibit 54

PRIVATE LAW LIBRARY
under the direction of
HENRY SOLUS
Honorary Professor at the School of Law and Economics of Paris
VOLUME CIX

NOTIONS AND ROLES
OF THE OFFER AND ACCEPTANCE
IN CONTRACT FORMATION
By

Jean-Luc AUBERT
Doctor of Law
Graduate of the School of Law and Economics of Paris
In charge of Courses
at the School of Law and Economics of Nancy

Preface by
Jacques FLOUR
Professor at the School of Law and Economics of Paris

Work honored with a grant
by the Ministry of National Education

P A R I S
GENERAL BOOKSTORE OF LAW AND JURISPRUDENCE
R. PICHON AND R. DURAND-AUZIAS
20 and 24, Rue Soufflot, 20 and 24
---1970

20

NOTIONS AND ROLES OF THE OFER AND…

…..allows the play on words, the soliciting of an offering (17). While the offer is doubtlessly no
longer spontaneous, at least there remains initiative.
12. - What should be remembered is that an offering cannot be conceived without a
minimum of freedom which leaves room for initiative. Reciprocally, a proposal which features,
expressly or implicitly, all of the mandatory conditions of the contract cannot be considered an
invitation to tender. Although it features some of the characteristics, with regard to the author of
the invitation, the best example of an invitation to tender remains that of the voluntary invitation
to bid in which only the price remains undetermined (18), which allows the initiative of offering
bidders. But there are other examples and, beyond even the techniques of administrative law,
common practice reveals the invitation to tender as a very widespread technique and, in brief,
excessively commonplace. One has only to open a newspaper to the want ads page to realize
this: want ads for apartments to rent (“wanted: 4-5 rooms, Auteuil area”, etc…), used cars
purchase offers, want ads for jobs abound. It is up to the reader to take the initiative in proposing
the bases of a contract, by taking up the elements already featured in the ad and adding to them
what is lacking. The invitation to tender does not feature all of the essential elements of the
contract foreseen. Those which are missing remain subject to the initiative of the person who
responds to the invitation that was made to him.
13. - 2º In both cases, which we have examined successively, of offers occurring at the
outcome of negotiations and offers provoked by an invitation to tender, the initial nature of the
offering appears concealed by the expression of previous intention of a third party. There is
another case in which, on the other hand, the true offer is more or less difficult to detect because
it is the doing of an apparently passive individual or legal entity. It is the well-known case of the
condition of a continuing offer (19). It then involves a person who, once and for all, has offered
to conclude certain contracts, generally of a specific type, most often to the public, but also,
sometimes, to a specific person (20). This offer is not made known…… [remainder of article
omitted]
------------------------- 

(17) See for English law, the formula of L. J. Bowen in the Carlil Case: “Offer to receive offers”, cited by
Chesire and Fifoot, “The law of contract”, p. 26.
(18) See for the definition of the tender contract, R. Demogue, “Treatise on obligations in general” Vol. II,
of the sources of obligations, no. 606, p. 283.
(19) Jur. Gen. Dalloz, Vol. XXXIII, No. 102; G. Ripert, “Maritime Law”, Vol. II, No. 1405, p. 318; Picard
and Besson, “Non-marine insurance in French law”, No. 48, p. 79; Papazol, op. cit., p. 105; E. Salle de la Marniere,
“The technical evolution of the contract and its legal consequences”, No. 32, p. 99; J. Chabas, op.cit., p. 31 and s.; R.
Morel, “The imposed contract” , in “French private law of the mid 20th century”, Etudes Ripert, Vol. II, No. 6, p.
120.
(20) Paris, April 3, 1952, D.M.F. 1952, p. 415, Sauvage note. It is the case of an agreement concluded
between two persons, by which one of the parties agrees to provide services to his co-contractor over a period of
time which may be more or less long, upon the simple request of the latter party. A floating policy was involved in
the case at hand.