Legal status of proforma invoice

In China, the legal status of a proforma invoice depends on the relationship between the parties. Chinese courts generally treat a proforma invoice as preliminary evidence rather than a legally binding contract. Here is how Chinese courts approach such cases:

Legal Framework

1. Contract Law of the People’s Republic of China (PRC):

Under Chinese law, a contract is formed when there is a clear offer and acceptance, along with mutual agreement on essential terms (e.g., subject matter, quantity, and price).

A proforma invoice is often viewed as an invitation to negotiate or a preliminary offer rather than a definitive agreement.

2. Evidence-Based Judgments:

Chinese courts emphasize the principle of evidence. A proforma invoice may be used as supporting evidence to demonstrate the intent of the parties, but it is not sufficient to establish a binding contract on its own.

Courts will assess whether there is additional evidence (e.g., correspondence, purchase orders, payment records, or delivery receipts) that demonstrates mutual intent to conclude a contract.

Key Factors Courts Consider

1. Nature of the Proforma Invoice:

If the proforma invoice is expressly labeled as “non-binding” or “for reference only,” the court will likely conclude that it is not enforceable.

Conversely, if the parties have treated the proforma invoice as the final agreement (e.g., the buyer has made payments based on it), it will be seen as agreement.

2. Parties’ Actions and Communications:

Courts will evaluate emails, contracts, and other communications to determine if the parties intended to be legally bound. For example, if the buyer placed an order based on the proforma invoice and the seller accepted it, this could indicate a binding contract.

3. Commercial Customs and Trade Practices:

Courts in China consider international trade practices, especially if INCOTERMS or other international conventions are cited in the case.

Lawyer Suggestion:

To avoid disputes, it is advisable to explicitly state the purpose of the proforma invoice (e.g., “for reference only” or “not binding”) or clearly transition to a formal purchase contract. In China, keeping records of communications, payments, and acknowledgments can help clarify the nature of a proforma invoice in case of disputes.