碘代丙炔基氨基甲酸酯项目细分市场调查与上市募投可研报告如何编制（市场容量数据甲级资质）课件

Chapter Four International Contract Law,I. Introduction II. Formation of Contract III. Validity of Contract IV. Performance of Contract V. Remedies for Breach of Contract,1,Key Terms,Offer: 要约 Offeror: 要约人 Offeree: 受要约人，承诺人 Acceptance: 接受，承诺 Counteroffer: 反要约 Invitation to treat/Invitation offer: 要约邀请 Withdrawal of offer: 要约的撤回 Revocation of offer: 要约的撤销,2,Consideration: 对价 Cause: 约因 Promissory estoppel: 许诺性禁反言理论 Misrepresentation: 误解 Pecuniary loss: 金钱损失 Duress: 胁迫 Remedy: 救济措施,3,I. Introduction,Under Common Law, contract means a promise or set of promises, for breach of which the law gives a remedy. Under Civil Law, contract is a “mutual assent” or “meeting of minds”. Chinese Contract Law states that a contract is an agreement between natural persons, legal persons or other organizations with equal standing, for the purpose of establishing, altering, or discharging a relationship of civil rights and obligations.,4,II. Formation of Contract,1. Offer and Acceptance (1) Offer 1) Definition and Requirements of an 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.,5,Under China Contract Law, an offer is a partys manifestation of intention to enter into a contract with the other party, which shall comply with the following: Its term are specific and definite; It indicates that upon acceptance by the offeree, the offeror will be bound thereby.,6,Requirements of an Offer, Contractual intention. It is an invitation to treat, which is used to invite others to make offer and lack of the intention to create a binding obligation. Generally, display of goods for sale, an advertisement in a newspaper, posted quotation（寄送的报价单）, price list, catalogue（商品目录）, auction sales（拍卖公告） and tenders（招标公告） are all an invitation to treat.,7, Definiteness. Communication of offer to offeree.,8,2) Termination of offer Revocation of offer by offeror. In common law systems, an ordinary offer may be revoked at any time before it is accepted even though the offeror has expressly promised that the offer will be good for a stated period and that period had not yet expired. It may also be revoked even though the offeror has expressly promised to the offeree that the offer would not be revoked before a specified later date.,9,Under German law, an offer is binding on the offer so it is hardly to be revoked. Under China Contract Law, an offer may not be revoked, if (a) the offeror indicates a fixed time for acceptance or otherwise explicitly states that the offer is irrevocable; or (b) the offeree has reasons to rely on the offer as being irrevocable and has made preparation for performing the contract.,10, Counteroffer by offeree. A company sent an offer to B company that it would sell 100 computers to B company for $200,000. B company wrote back that it would accept the computers for $150,000. B companys answer is not an acceptance, but is a counteroffer, because it changed the price.,11,Mike sent John an offer that he would sell a car to John for $10,000. But before having received the offer, John wrote to Mike that he wanted to buy Mikes car for $10,000. Although the content of the letter is the same as the offer, but its not an acceptance. Its a “crossed offer”.,12, Rejection of offer by offeree. Lapse of time. There are two situations. One is that if the offer contains a time limitation for acceptance, no acceptance after the expiration of that time has legal effect; the other is that if the offer does not specify a time, it will terminate after the lapse of a reasonable time.,13,(2) Acceptance An acceptance is the offerees manifestation of intention to enter into a binding agreement on the terms stated in the offer. 1) Requirements of acceptance.,14, An acceptance must be made by the offeree. An acceptance must be communicated to the offeror or another person who on his behalf with the offerors authoritarian.,15, An acceptance must be made within the period of validity. An acceptance should match the terms of the offer exactly and unequivocally. Mostly, silence and inactivity cannot be construed/explained as acceptance.,16,2) Battle of the forms.,In most countries the mirror image rule（镜像原则） is one of the requirements of an acceptance. The rule states that an acceptance should match the terms of the offer exactly, unconditionally and unequivocally.,17,Battle of the forms under common law P108-109. Battle of the forms under the CISG Under the CISG, the key elements of a contract that will materially alter a contract: price, payment, quality and quantity of goods, place and time of delivery, extent of one partys liability to the other, and settlement of disputes. Thus under the CISG, almost any new or different term in the acceptance could constitute a counteroffer.,18,Battle of the forms Under China Contract Law Under China Contract Law, the terms of the acceptance shall be identical to those of the offer. A change in the subject matter, quantity, quality, price or remuneration, time, place and method of performance, liabilities for breach of contract or method of dispute resolution is a material change to the terms of the offer.,19,3) Time of acceptance.,The mail-box rule（投邮原则） is that the contract is formed when the letter of acceptance is placed in the (outgoing) mailbox. It applies only to acceptance. Under the rule, an acceptance is effective once the letter of acceptance is posted. It makes no difference whether the offeror actually receives the letter.,20,The receipt rule（到达原则） is that the acceptance can be effective if it was communicated to the addressee. The difference between the two rules is the allocation of risk when an acceptance is lost or delayed. Under China Contract Law, a notice of acceptance becomes effective once it reaches the offeror.,21,2. Consideration and Cause,(1) Consideration 1) Definition A valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other.,22,是一方被赋予的某种权利、利益、好处、或利润，或是另一方承担的容忍、损害、损失或责任。 英美各国法律认为，“没有对价的许诺只是一件礼物；而为对价所做出的许诺则已构成一项合同。”,23,对价(consideration)原本是英美合同法中的重要概念，其内涵是一方为换取另一方做某事的承诺而向另一方支付的金钱代价或得到该种承诺的承诺。 对价：指当事人一方在获得某种利益时，必须给付对方相应的代价。,24,含义 所谓对价， 对价就是相对人作出的某种能使承诺人的承诺对其自身产生拘束力的回报。 这种代价即对价的内容并不限于金钱。 对价可以是合同一方得到的某种权利、 利益、 利润或好处， 或是他方当事人克制自己不行使某项权利、 遭受某项损失或承担某项义务。,25,2) Rules of consideration, Consideration must be given. Consideration must be referable to the promise. Consideration must be sufficient, but need not be adequate. Consideration must move from the promisee. Consideration must not be from the past.,26, Performance of an existing contractual duty to the promisor is not consideration. Part payment of a debt is not good consideration. Performance of a public law duty is not good consideration.,27,.,例如， 甲对朋友之子乙说， “如果你将来考上北京大学， 我就承担你在校四年的全部费用。 ” 若乙将来果真考上北京大学， 则甲为乙支付学费的行为在一般意义上无疑可以视为对乙的赠予， 但依对价理论， 此种赠予并非纯粹的赠予。 因为， 乙为考上北大已应甲的要求付出了艰苦的脑力劳动， 并在此基础上成就了甲预先提出的条件， 即应视为支付了相应的对价，而纯粹的赠予合同是不应当附有对待条件的。,28,（二） 对价的基本规则,1.对价必须合法 故贩卖妇女、 儿童的合同是无效的， 因为妇女、 儿童均不能构成买卖合同的标的。 按照我国有关司法解释， 出卖自已的未成年孩子依法构成拐卖儿童罪,29,2.过去的对价无效,过去的对价即是指一方已经履行完毕的对价； 对此， 对方不能以之作为该当事人后来所作允诺的对价。 英美法上有这样一个经典的案例： 甲售给乙一匹马。合同履行完毕后， 甲允诺说， 此马身体健壮，性情温和。但乙后来却发现此马性情暴烈， 遂诉诸法院， 请求追究甲的违约责任。但法官认为， 甲在作出此马性情温和的允诺时， 原买卖合同中甲的义务 （对价） 已经履行完毕， 且乙又没有针对甲关于此马性情温和的允诺另行提供对价， 故过去的对价对本案无拘束力。,30,已履行对价和过去的对价之间的区别,比如，甲承诺将卖给乙一台彩电，乙在甲交付彩电之前支付给了一笔甲提出的价款，这时，乙的行为就构成了一项已履行的对价，甲有义务将彩电交于乙。,31,.,过去的对价 过去的对价只是一个单方行为，没有对象。比如几年前甲送给了乙一件紧俏商品，多年过去后，乙为了感谢甲，允诺将送给甲一台最新式的冰箱。但这项允诺是缺乏对价支持的，这是一个已经过去了的对价，所以没有拘束力，甲不能就乙没有履行其承诺而诉求法律的保护。,32,3. 对价并不苛求等价,英美法上仅要求对价必须具备一定的价值， 但不苛求等价。交易是平等主体之间的民事活动， 只要双方当事人达成合意， 且不违背公共利益， 法律无权干涉。 在Mountfort v. Scott(1975)一案中， 一方当事人曾用一英镑购买了对方价值10000 元的房屋。 法官说， 这是一个充分的对价， 无可非议。,33,4. 已经存在于合同中的义务， 不能另行构成对价,在Stilk v.Myrick （1809） 一案中， 被告系某船船长， 在伦敦雇了几个海员。在某次航行过程中， 因两个海员开小差， 被告许诺其他船员如果把船开回目的港， 就将开小差船员的工资分给他们。 船到达目的地后， 船长反悔， 辩称这些船员没有向他的许诺提供对价。原告遂起诉。 法官认为， 两个海员开小差并没有给原告增加新的义务， 因此， 被告的许诺没有对价， 而原告本就负有尽力把船安全开回目的港的合同义务， 故驳回原告的诉求。,34,5. 法定的义务不能构成对价,设若前述甲允诺赠予四年学费的对象不是其友之子乙， 而是对自己的非婚生子丙说， “如果你考上北京大学附中， 我一定负担你的学费。 ” 则甲为丙支付中学学费的行为不能构成丙辛苦劳动的对价，因为丙作为未成年人享有受教育权， 其父甲负有保障其非婚生子受教育权得以实现的法定义务。 故若丙果真考上北京大学附中， 甲为其支付学费的行为仅是其履行法定义务的表现， 不能构成对价。,35,Tom agreed to sell his computer to John for $10, but later he regretted to do so. He claimed that $10 wasnt an adequate consideration. The court held that consideration could not be adequate, and an enforceable contract depended on whether there was consideration or not. Thus Tom couldnt withdraw his computer.,36,英美合同法把合同分为两种类型：一种类型是签字蜡封合同（signed and sealed contract),这种合同是由当事人签字与加盖印签，其有效性完全是由于它采用的形式，不要求任何对价；另一种类型是简式合同（simple contract), 包括口头合同及并非以签字蜡封形式做成的一般书面合同，这类合同必须有对价，否则就没有约束力。,37,3) Exceptions to requirement of consideration, Sealed and written instruments. Uniform Commercial Code. Under the code, consideration is not required for (a) a merchants written, firm offer for goods stated to be irrevocable; (b) a written discharge of a claim for an alleged breach of a commercial contract; or (c) an agreement to modify a contract for the sale of goods.,38, Promissory estoppel. P113 为了防止某些情况下由于缺少对价而产生不公平，作为“对价”原则的限制在法律上形成了“不得自食其言”原则。,39,美国第二次合同法重述第90条规定：“如果允诺人有理由预计其诺言会诱使受诺人实施某些行为或限制行为，同时该诺言在事实上诱发了此种行为，那么，如果只有通过强制执行该诺言，才能使不公正得以避免，该诺言就是有约束力的。就违背诺言而准许的补救仅限于 维护正义而要求的范围。,40,(2) Cause,Cause is the reason why a party enters a contract and undertakes to perform contractual obligations. Cause is different from consideration as the reason why a party binds himself need not be to obtain something in return.,41,约因是指引诱合同当事人订立合同的原因、动机、代价和推动力或对另一方的许诺或行为所作出的承诺。 约因的实质直接体现立约人与受要约人的互相允诺，即各自允诺为对方负担一定的行为或不行为的义务。,42,约因的实质直接体现立约人与受要约人的互相允诺，即各自允诺为对方负担一定的行为或不行为的义务。 不过，也有人认为，约因是法国等某些大陆法国家从罗马法中继受而来的合同成立要件。,43,按照法国法理解释，债的约因是指订约当事人产生该项债务所追求的最接近和最直接的目的。 例如，在贸易合同中，卖方交货的最接近和最直接的目的是为了换取金钱；同样，买方的付款是为了取得货物。因此，在这样的双方合同中，存在着两个约因，即买方付款是卖方交货的约因，而卖方交货又是买方付款的约因。双方当事人之间也是相对给付的关系。,44,对价与约因的差异及现实法律地位,作为合同法上相对应的两个概念，对价与约因具有某些相同的作用，即都是给予合同效力的确定以一个统一的标准，都能约束简单契约，使契约当事人的权利有所保障，并具有促使双方事先慎重考虑的效能 但是，二者发展道路毕竟有所不同。因而，对价与约因这对概念尽管相似，差异也是客观存在的。总的说来，对价的适用范围较狭窄，但内容较具体；而约因的适用范围较宽，且具弹性。,45,3. Contractual Capacity,(1) Natural Persons Contractual Capacity In common law, there are three classes of persons who are generally not considered to have sufficient capacity to be bound by their contracts: 1) Minors. 2) Mentally Impaired or Incompetent Persons. 3) Drunk Persons.,46,In civil law systems, for example, under French Civil Code, Articles 1124 and 488 provide persons who are incapable of entering into a contract: 1) non-emancipated minors; 2) adults whom an impairing of his personal faculties places in the impossibility of providing alone for his interests is protected by the law, either on the occasion of a specific transaction, or in a continuous manner; 3) adults who because of his prodigality, insobriety or idleness, are in danger to fall into need or compromises the fulfillment of his family obligations.,47,法国法 没有无行为能力与限制行为能力之区分。法国民法典第1124条规定无 订立合同能力的人包括 ：1，未解除亲权的未成年人；2，受法律保护的成年人，包括功能衰退者和因挥霍浪费，游手好闲导致贫困者。,48,In China, Under General Principles of the Civil Law of the Peoples Republic of China Article 55, a civil juristic act shall meet the requirement that the actor has relevant capacity for civil conduct: 1) Full capacity. 2) Limited capacity. 3) No capacity.,49,(2) Artificial Persons Contractual Capacity,The extent of an artificial persons capacity depends on the law of the place of incorporation and the enabling provisions included in the constitutive documents of incorporation.,50,III. Validity of Contract,1. Mistake (1) Common Law 1) Common mistake A common mistake is that where the mistake is common to both parties, the parties have reached agreement, but the agreement is based upon a fundamental mistaken assumption.,51,2) Unilateral mistakes A unilateral mistake is that only one party to a contract is mistaken when the mistake is known to the other contracting party. 3) Mutual mistake A mutual mistake occurs when the parties to a contract are both mistaken but about the same material fact within their contract.,52,(2) Civil Law Under French law, a mistake in contract affects the existence of the contract. A mistake in contract does not destroy consent: it merely negatives consent, or to simplify, the mistake concerns the validity of the contract.,53,Under German law, a mistake did not affect consent in that a party had actually consented to the contract but an analysis had to be made at the distinction between the will and what preceded the outward declaration of the will.,54,(3) China China Contract Law Article 54 states that a party may petition the Peoples Court or an arbitration institution for amendment or cancellation of a contract if the contract was concluded due to a material mistake.,55,2. Misrepresentation（虚伪的陈述）,(1) Fraudulent Misrepresentation（欺骗性的不正确说明） The elements of fraudulent misrepresentation are as follows: 1) a false representation is made; 2) which is material to the transaction; 3) which is made with knowledge of its falsity or reckless disregard as to whether it was true or false;,56,(2) Negligent Misrepresentation 过失误述,The following are required elements for a successful action for negligent misrepresentation: 1) There must be a duty of care based on a “special relationship” between the representor and the representee. 2) The representation must be untrue, inaccurate or misleading.,57,3) The representor must have acted negligently in making the representation. 4) The representee must have relied, in a reasonable manner, on the negligent misrepresentation. 5) The reliance must have been detrimental to the representee in the sense that damages resulted.,58,(3) Innocent Misrepresentation,Innocent misrepresentation involves a mistake that is not intentionally misleading, but results in another party entering into a contract.,59,3. Duress（胁迫）,Duress means a threat of harm made to compel a person to do something against his or her will or judgement; especially a wrongful threat made by one to compel a manifestation of seeming assent by another person to a transaction without real volition.,60,(1) Common Law,If a person is induced to enter into a contract as a result of duress by the other party, the contract is voidable. Duress in contract law falls into two broad categories. 1) Physical duress(物质胁迫). If there is violence or threat of violence, or damage of their goods that the person is deprived and the offeree will and makes the contract to avoid harm, the person is under physical duress. 2) Economic duress（经济胁迫）.,61,(2) Civil Law,Under French Civil Code, there is duress where it is of a nature to make an impression upon a reasonable person and where it can inspire him with a fear of exposing his person or his wealth to considerable and present harm. Under German Civil Code, whoever has been induced to make a declaration of intention by fraud or unlawfully threats may rescind the declaration.,62,(3) China,If a party induced the other party to enter into a contract against its true intention by duress, the aggrieved party is entitled to petition the Peoples Court or an arbitration institution for amendment or cancellation of the contract.,63,4. Fraud（欺诈）,(1) Common Law Fraud is a false representation of a past or existing fact-whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed-that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.,64,Generally speaking, fraud should be proved by showing that the defendants actions involved five separate elements: 1) A false statement of a material fact. 2) The defendant must know that the statement is untrue. 3) Intent on the part of the defendant（被告） to deceive the alleged victim. 4) The victims reliance on the false statement must by reasonable. 5) The false statement must cause the victim some injury that leaves her or him in a worse position than she or he was in before the fraud.,65,(2) Civil Law,French Civil Code Article 1116 provides that fraud is a ground for annulment (撤销）of a contract where the schemes used by one of the parties are such that it is obvious that, without them, the other party would not have entered into the contract. German Civil Code Section 123 provides that whoever has been induced to make a declaration of intention by fraud may rescind the declaration.,66,(3) China,If a party induced the other party to enter into a contract against its true intention by fraud, the aggrieved party is entitled to petition the Peoples Court or an arbitration institution for amendment or cancellation of the contract.,67,5. Undue Influence（不当影响）,Undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. Four elements should be shown to establish undue influence: 1) It must be demonstrated that the victim was susceptible to overreaching.,68,2) There must be an opportunity for exercising undue influence. 3) There must be evidence that the defendant was inclined to exercise undue influence over the victim. 4) There must be an unnatural or suspicious transaction.,69,6. Legality（合法性）,(1) The Common Law Under the common law, a contract is illegal if it involves: 1) Contract illegal by statute: those objects are illegal by statute, including provision of goods/service without necessary licensing or registration;,70,2) Contract illegal by common law: those contemplating the commission of a tort, or those containing an undertaking to indemnify against damages for tort committed during performance; 3) Contracts illegal by public policy: those prejudicial to（be harmful) interests to the State or justice.,71,(2) The Civil Law,Germ