国际商法课件第一章合同法（英文版）

International Business Law,Course Description Content Part 1 Contract Law 1 Formation of Contract 2 Enforceability of Contract 3 Performance of Contract 4 Breach of Contract Part 2 Corporate Law 1 Introduction of Commercial Organizations 2 Formation of corporation and Personality of corporation 3 Corporate Governance and Corporate Structure 4 Shareholders meeting ( membership and control) 5 Board of Directors and Officers 6 Supervisory board (监事会) and Auditors,reference books International Business Law and its Environment, Richard Schaffer, 6th ed. (chapter 4) Contract Law, Ewan Mckenrick, 6th ed. 2006. (chapter 5, 13,14,15,16,17) Essentials of Contemporary Business Law, Henry Cheeseman 国际商法 沈四宝等著，对外经济贸易大学出版社,Unit 1 Understanding some legal terms,a. International Business Law （国际商法）regulates various affairs of international business transaction and international commercial organizations, and includes usually: contract law, sales law, company law, negotiable instrument law, marine law, insurance law, etc. b. legal systems: common law v. civil law (普通法法系 与民法法系） Also known as Anglo-American law system v. Romano-Germanic (or Continental law) legal system (英美法法系与大陆法系） c. case law v. statuary law (判例法 与 制定法）,d. Civil cases and Criminal cases (民事案件与刑事案件） Civil cases may include suits for breach of contract （违约）or tort (侵权） cases, such as suits for personal injuries. Typically, they involve a request for damages of the wrongdoer. Criminal cases involve a representative of government attempting to prove the wrong committed against society and seeking to have the wrongdoer punished by the court system.,Civil Law System (Continental law system),The civil law system is the general typology of legal systems found in most countries. It is an alternative to common law system and has its roots in Roman Law. It is employed by almost every country that was not a colony of the British Empire. In most jurisdictions the civil law is codified in the form of a civil codes, but in some, like Scotland it remains uncodified. Most codes follow the tradition of Code Napolon in some fashion. Notably, the German code was developed from Roman law with reference to German legal tradition. Civil law relies on legislation, rather than judicial decisions for law. Civil law system do not recognize judge-made law.,Common Law (Judge-made Law),Common law is a system of law used in England, all of the states of the United States (except Louisiana) and other former British possessions such as Australia, Canada (except Quebec), India, Ireland, Jamaica, New Zealand and Hong Kong. The Common law system emphasizes the role of judges in determining the meaning of laws and how they apply. It arose beginning in the eleventh and twelfth centuries as the English monarch appointed royal judges to resolve disputes in the name of the king (or queen). As there are little formal law to apply to many disputes, the decisions handed down by the judges literally made the law.,Chinese Law (A Hybrid),The Law of China, for most of the history of China, was rooted in the Confucian philosophy of social control. These influences remain in the contemporary legal system of the Peoples Republic of China. PRC has been influenced by a number of sources including traditional Chinese views toward the role of law, the PRCs socialist background, the German-based law in Taiwan Province, and the English-based common law used in Hong Kong SAR. The law of the United States has also been very influential particularly in the area of banking and securities law.,Contract Law,The conventions governing Contract Law In 1966, the United Nation created the U.N.Commission on International Trade Law. (UNCITRAL) （联合国国际贸易法委员会） UNCITRAL has drafted several widely accepted legal codes for international business, including the Convention on Contracts for the International Sale of Goods, or CISG. （国际货物买卖合同公约） If a case involving the sale of goods between a Chinese firm and a party whose place of business is in another country that has adopted CISG, the CISG would apply.,The conventions governing Contract Law,The International Institute for the Unification of Private Law (UNIDROIT) （国际私法统一协会）was set up in 1926 under the League of Nations. The Principles of International Commercial Contracts (PICC) （国际商事合同通则）were proposed by UNIDROIT as model laws to harmonize different domestic contract laws.,The applicability of the CISG,Three conditions for CISG to apply: a. The contract is for the commercial sale of goods. (so sale of service contract excluded.) b. It is between parties whose places of business are in different countries. ( not nationality or citizenship) c. The place of business are located in countries that have ratified the convention.,Sales excluded from CISG,1. Consumer goods sold for personal, family or household use. 2. Goods bought at auction. 3. Stocks, securities, negotiable instruments or money. 4. Ships, vessels, or aircraft. 5. Electricity. 6. Assembly contracts for the supply of goods to be manufactured or produced wherein the buyer provides a substantial part of the materials necessary for such manufacture or production 7. Contracts that are in preponderant part of the supply of labor or other services. 8. Liability of the seller for death or personal injury caused by the goods. 9. Contracts where the parties specifically agree to opt out of the convention or where they chose to be bound by some other law.,Formality of International Contracts,A contract of sale needs not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.,Formation of Contract,Normally, a valid contract needs to contain all of the following elements. a. It is an agreement between the parties entered into by their mutual assent b. The contract must be supported by legally sufficient consideration. c. The parties must have legal capacity. d. The contract must not be for illegal purposes or to carry on an activity that is illegal or contrary to public policy.,Entering Contract,The mutual agreement is reached through the bargaining process, between offferor and offeree until the offeree accepted the offer.构成合同协议的基本要素有两个：一是要约，一是承诺。 Offer: an offer is a statement by one party of a willingness to enter into a contract on stated terms, provided that these terms are, in turn, accepted by the party or parties to whom the offer is addressed. An offer takes effect when it reaches the offeree. CISG: A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.,中国合同法对要约条件的规定,第一，要约必须具有订立合同的意图; 第二，要约必须向特定的受要约人发出; 第三，要约的内容必须确定; 第四， 要约必须送达受要约人。,invitation to offer,An invitation to offer or invitation to treat is simply an expression of willingness to enter into negotiations which, it is hoped, will lead to the conclusion of a contract at a later date. 要约邀请通常是一方当事人邀请或引诱对方当事人提出要约的意图表示，它对双方当事人均不具有强制效力。,Display of goods for sale in a supermarket,Case: Pharmaceutical society of GB v. Boots Cash Chemists Boots organized their shop on a self-service basis. They were charged with a breach of section 18(1) of the Pharmacy and Poisons Act 1933, which required that a sale of drugs take place under the supervision of a registered pharmacist. There was no pharmacist present close to the shelves, but a pharmacist supervised the transaction at the cash desk and was authorized to prevent a customer from purchasing any drug if he thought fit to do so.,争议：哪个阶段是要约，哪个阶段是承诺？ 药物学会认为：货架摆放药品，显示价格是要约，顾客取走药品是承诺，合同成立时，没有药师监督，boots违反法律规定。 Boots认为：摆放药品是要约邀请，顾客取走药品是要约，收银是承诺，收银时有药师监督，故没有违反法律。,Advertisement,The general rule is that a commercial advertisement is an invitation to treat rather than an offer. In Germany, advertisement is only a invitation to offer. While in common law legal system, if it can be proved that the maker of the advertisement is willing to be bound by the advertisement and the advertisement has clearly provided sufficient information of the goods, advertisement can also be offer. CISG: an advertisement is presumed to be an invitation unless the contrary is clearly indicated by the person making the proposal.,Auction sales,Step 1. Advertisement of auction or a statement of auction Step 2. The auctioneer invites the bids Step 3. The prospective buyers bids for the commodity Step 4. The auctioneer strikes the table. Which step is offer, and which step is acceptance?,Tenders,Where a person invites tenders for a particular project, the general rule is that the invitation to tender is simply an invitation to treat. The offer is made by the person who submits the tender and the acceptance is made when the person inviting the tenders accepts one of them.,Termination of offer,a. The offeror or offeree died. b. No acceptance was sent before the offer expires. c. An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. 要约被撤回 d. Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. 要约被撤销 (2) However, an offer cannot be revoked under CISG: (a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or (b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer. e. An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror.,Case of Revocation of offer,Byrne v. Van Tienhoven The defendants sent the claimants an offer on 1 October, which reached claimants on 10 October, the claimant accepted the offer by fax on 11 October . However, in the meantime, the defendants had sent, on 8 October, a letter revoking their offer, which reached the claimants on 20 October. It was held that a contract was concluded between the parties on 11 October because the purported withdrawal could not take effect until 20 October.,acceptance,The acceptance is the offerees manifestation of the intention to be bound to the terms of the offer. The conditions of acceptance: a. An acceptance must be made before the offer expires. b. The acceptance must be unconditional and absolute, with the same contents as the offer. c. The acceptance must be made by offeree to offeror.,A purported acceptance which does not accept all the terms and conditions proposed by the offeror but which in fact introduces new terms is not an acceptance but a counter-offer, which is then treated as new offer. The effect of the counter-offer is to kill off the original offer so that it cannot subsequently be accepted by the offeree. (mirror image rule),Exception of mirror image rule,A reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue过度的，未到期的 delay, objects orally to the discrepancy差别 or dispatches发送 a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place of delivery, extent of one partys liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.,Acceptance in ignorance of the offer (Cross offer),A person who , in ignorance of the offer, performs the act or acts requested by the offeror is not entitled to sue as on a contract. (悬赏广告除外） Cross offers which are identical do not create a contract unless or until they are accepted.,Prescribed method of acceptance,Where the offeror prescribes a specific method of acceptance, the general rule is that the offeror is not bound unless the terms of his offer are complied with. acceptance by silence 【？】 The general rule is that acceptance of an offer will not be implied from mere silence on the part of the offeree and that an offeror cannot impose a contractual obligation upon the offeree by stating that, unless the later expressly rejects the offer, he will be held to have accepted it. 中国合同法做了类似规定：但是如果按照惯例沉默也可构成承诺。,When does the acceptance take effect?,In common law legal system- postal rule (投邮生效） The acceptance takes effect when it is sent no matter whether the mail is lost in transit. In civil law legal system- rule of arrival (到达生效） The acceptance takes effect only after it reaches the offeor.,Withdraw of the acceptance,In civil law legal system or in CISG An acceptance can be withdrawn before it reaches the offeror. The notification of withdraw must reach the offeror before or at the same time as the acceptance would have become effective.,Late acceptance,A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect. If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect.,