国际商法复习.doc

I. Words II. Sentences III. RulesI. Words 反义词(1) Unilateral v. Bilateral; (p.1)(2) Offer v. Invitation for offer (p.5)(3) Offer v. Counter offer (p7.)(4) Liquidated v. Unliquidated debts (p.50, 51)(5) Option v. Firm offer (p.6) (6) Original v. collateral contract (p. 88)近义词(1) void, voidable, unenforceable (2) disaffirm, repudiate, avoid, rescind, novate, waive, relinquishFor example:Word Definition ExamplePageDisaffirm (disaffirmance, n.affirm, antonym) 1. To repudiate; to revoke consent; to disclaim the intent to be bound by an earlier transaction. 撤销，拒绝履行合同2. To declare (a voidable contract) to be void. 宣告（可撤销的合同）无效Courts granted minors the right to avoid contracts as a means of protecting against their own improvidence and against overreaching by adults. The exercise of this right to avoid a contract is called disaffirmance. 70Repudiate (repudiation, n.) 1. To reject or renounce (a duty or obligation); esp., to indicate an intention not to perform (a contract). 拒绝或背离义务，拒绝履行（合同）2. Hist. To divorce or disown (ones wife).与妻子离婚或否认已婚Before the final draft is signed , A repudiates the contract.90Avoid (=void, v. )To render void. 撤销Void contracts are agreements that create no legal obligations because they fail to contain one or more of the basic elements requires for enforceability or the contracts are prohibited by laws or against public policy.1Rescind(rescission, n.）To abrogate or cancel (a contract) unilaterally or by agreement.撤销To make void; to repeal or annul .使无效，撤销Parliamentary law. To void, repeal, or nullify a main motion adopted earlier. 撤销，使之前被接受的主要行为无效If an oral contract has been completely performed by both paties, the fact that it did not comply with the statute of frauds would not be a ground for rescission of the contract.90Novate(novation, n.)Replace with something new, especially an old obligation by a new one.更新，代替When a creditor agrees to accept a contract with a new debtor in satisfaction of a debt previously owed by another debtor .Such transactions are called novations.88Waive(waiver, n.)1. To abandon, renounce, or surrender (a claim, privilege, right, etc.); to give up (a right or claim) vo-luntarily. 废除，抛弃，放弃2.To refrain from insisting on (a strict rule, formality, etc.); to forgo. 停止3.Hist.To declare someone a waif. 宣告无主Relinquishment(Relinquish, v.)The abandonment of a right or thing.放弃权利或物Accord and satisfaction “ Accord and satisfaction means an agreement between the parties that something shall begiven to, or done for, the person who has the right of action, in satisfaction of the cause of action.There must be not only agreement (accord) but also consideration (satisfaction). Such an arrangement is really one of substituted performance.” 1 E.W. Chance, Principles of Mercantile Law 101 (P.W. French ed., 13th ed. 1950).和解和清偿This promise would be enforceable against the seller if it seeks to collect the remaining 1,000,because by agreeing to settle a disputed claim the seller has entered a binding accord and satisfaction.51Composition (agreement)An agreement between a debtor and two or more creditors for the adjustment or discharge of an obligation for some lesser amount; an agreement among the debtor and two or more creditors that the debtor will pay the creditors less than their full claims in full satisfaction of their claims. 共同和解协议The compensation paid as part of such an agreement. 补偿Hist. A payment of money or chattels as satisfaction for an injury. 赔偿Composition agreements are agreements between a debtor and two or more creditors who agree to accept as full payment a stated percentage of their liquidated claims against the debtor at or after the date on which those claims are payable.51void, 1. Of no legal effect.无效2.Voidable.可撤销的Void contracts are agreements that create no legal obligations because they fail to contain one or more of the basic elements requires for enforceability or the contracts are prohibited by laws or against public policy.1voidable,Valid until annulled可撤销的Voidable contracts are those in which one or more of the parties have the legal right to cancel their obligations under the contract.1unenforceable(Of a contract) valid but incapable of being enforced.有效但没有强制执行的效力If the original agreement requires any modification to be in writing ,an oral modification unenforceable.50Unilateral A contract in which only one party makes a promise or undertakes a performance; a contract in which no promisor receives a promise as consideration for the promise.单方合同Contracts have traditionally been classified as bilateral or unilateral ,depending on whether one or both of the parties have made a promise.1BilateralA contract in which each party promises a performance, so that each party is an obligor on that partys own promise and an obligee on the others promise; a contract in which the parties obligate themselves reciprocally, so that the obligation of one party is correlative to the obligation of the other. 双方合同Contracts have traditionally been classified as bilateral or unilateral ,depending on whether one or both of the parties have made a promise.1Offer n.1. The act or an instance of presenting something for acceptance .要约2. A promise to do or refrain from doing some specified thing in the future,conditioned on an act, forbearance, or return promise being given in exchange for the promise or its performance; a display of willingness to enter into a contract on specified terms, made in a way that would lead a reasonable person to understand that an acceptance, having been sought, will result in a binding contract 要约3. A price at which one is ready to buy or sell.发盘An offer is a definite promise to be bound on specific terms.4Invitation to offer Torts. In the law of negligence, the enticement of others to enter, remain on, or use property or its structures; conduct that justifies others in believing that the possessor wants them to enter.要约邀请The courts have generally held that advertisements for the sale of goods at specified prices are not offers;instead, they are treated as invitations to offer.5Counter offerContracts. An offerees new offer that varies the terms of the original offer and that ordinarily rejects and terminates the original offer.反要约He may also implied reject it by making a counteroffer , an offer to contract on terms materially different from the terms of the offer.7Liquidated debtsA debt whose amount has been determined by agreement of the parties or by operation of law.确定债务A promise to discharge a liquidated debt for part payment of the debt at or after its due date is unenforceable for lack of consideration.50Unliquidated debtsA debt that has not been reduced to a specific amount, and about which there may be a dispute.不确定债务A promise to discharge a liquidated debt for part payment of the debt at or after its due date is unenforceable for lack of consideration.51Option1. The right or power to choose; something that may be chosen .选择权2. An offer that is included in a formal or informal contract;esp., a contractual obligation to keep an offer open for a specified period, so that the offeror cannot revoke the offer during that period.选择权The right conveyed by such a contract .选择权4. The right (but not the obligation) to buy or sell a given quantity of securities, commodities, or other assets at a fixed price within a specified time.期权5.Hist. Eccles. law. The requirement that a newly elected bishop convey to the archbishop theright to fill the next vacant ecclesiastical benefice in the new bishops see.继任者A option is a separate contract in which an offeror agrees not to revoke his offer for a stated time in exchange for some valuable consideration.6Firm offer A firm offer means an irrevocable offer made by a merchant. As a general rule, all offers are revocable at any time prior to acceptance, even those offers that purport to be irrevocable on their face.实盘A firm offer is irrevocable for the time stated in the offer.6Original contract原合同This is a type of original contract, because A has been released from liability for the debt and C is now the only debtor.88Collateral contractA side agreement that relates to a contract, which, if unintegrated, can be supplemented by evidence of the side agreement; an agreement made before or at the same time as,but separately from, another contract. 附属合同This is a type of original contract, because A has been released from liability for the debt and C is now the only debtor.88Sentences Article Theme Page UCC 2-207 Additional terms in acceptance or confirmation29UCC 2-206 (1) (b) Offer and acceptance in formation of contract: prompt or current shipment29UCC 2-306 Consideration: Output, requirement and exclusive dealing49UCC2-205Firm offer50UCC2-201Statute of Frauds: Formal requirements91UCC 2-201(3)(c) Statute of Frauds: Part performance91UCC 2-202 Parol Evidence91UCC 2-207承诺或确认中的补充条款1在合理时间内寄送的确定且及时的承诺表示或确认书，即使与原要约或原同意的条款有所不同或补充的条款，仍具有承诺的效力，除非承诺中明确规定，承诺的成立以同意这些不同的或补充的条款为条件。 2补充条款应被解释为是对合同的补充建议。在商人之间，除下列情况外，这些条款构成合同的组成部分： a要约明确把承诺限制在要约条款范围内； b补充条款对合同作了实质性改变；或 c在收到此种补充条款后的合理时间内，要约人作出或已作出对此表示拒绝的通知。 3如果当事人的行为构成对合同存在的承认，尽管当事方的书面材料不足以使买卖合同成立，合同有效成立。在这种情况下，该特殊合同的条款由当事方在书面材料中达成合意的条款和本法其他条款包含的补充条款构成。UCC 2-206 (1) (b) b请求迅速或立刻装船有关买进货物的订单或其它的要约，应被解释为邀请以迅速作出装船许诺或实际上将符合或不符合要约的货物迅速或立刻装船来做出的承诺；但如果卖方及时通知买方该货物仅供选购，则不符合要约货物的装船不构成承诺。UCC 2-306产量、需求和独占经营合同1以产出量或需求量作为数量标准的条款指实际的产出和需求均出于善意；但卖方所提供的产出或买方所提出的需求，与已作出的估计相比，或无此种估计、与正常的或与以前的可比产出量或需求量相比，有不合理差距的除外。2卖方或买方订立了有关某种货物的独占经营的有法律效力的协议，除另有协议外，卖方有尽最大努力供应该种货物的义务，买方有尽最大努力推销该种货物的义务。UCC2-205不可撤销的要约如果商人在签署的书面文件中发出进行货物买卖的要约，且文件保证该要约将保持有效，则即使无对价，在要约规定的有效时间内 ，或如果未规定时间，在合理时间内，要约不可撤销。在任何情况下，此种要约不可撤销的时间都不超过3个月且要约人以某种形式提供此种保证条款必须由要约人另加签名。UCC2-201.形式要求反欺诈条款 1.除本条另有规定外，价款达到或超过500美元的货物买卖合同，如果缺乏充足的书面材料表明当事方已达成买卖合同，且合同已由被要求强制执行的当事方或其授权代理人或经纪人签署，合同不得通过诉讼或抗辩强制执行。书面材料不因疏漏或错误陈述一项达成合意的条款失去证明效力，但合同只能在该书面材料所载明货物数量的范围内强制执行 。 2在商人之间，如果在合理的时间内收到对方对合同进行确认的书面文件，该文件被收到时即对发出者生效。若收到方有理由知道其内容，在该文件被收到时即满足本条第1款的要求，除非收到方未在收到后10天之内以书面形式对此进行拒绝。 3不符合本条第1款要求但在其它方面有效的合同，在下列情况下可以强制执行： a如果货物是为买方专门制造的，且不适合卖方在正常业务中向他人出售，卖方在得知对方毁约之前，根据情况可以合理表明货物是为买方而准备的，并且为履行此合同已经实质上开始制造或承担了义务；或 b被要求强制执行的一方在法庭上以答辩、作证或其它形式承认已订立买卖合同；此时超过该方所承认的货物数量的部分是不得强制执行的；或 c在货款已支付且被接受，或货物已收到且被接受（第2606条）时，就有关货物进行强制执行。UCC 2-202最终的书面表示：口头证据或外来.证据当事方在确认性备忘录中所同意的条款或当事方以其它方式在书面文件中规定的表示当事方所商定的最终协议的条款，不得以任何前存协议或同时达成的口头协议加以反驳，但可以用下列材料加以解释或补充：a交易过程或行业惯例（第1205条），或履约过程（第2208条）；以及b与书面条款含义一致的补充条款，除非法院认为上述书面文件已被当事方作为完整的协议而排除任何其它条款。Rules Elements (要件)Concept/Rule Elements Offer DefinitenessCommunicationAcceptance Term:Mirror Image RuleForm:Oral ;Written,PerformanceMeans:EffectivenessConsideration Legal sufficiency v. Economic adequacy Definite v. illusory promisesPromissory EstoppelPromiseRelianceGeneral rules v. ExceptionsRule General RuleException(s) Revocation of an offerany time prior to acceptanceIrrevocable: Option Firm Offer Offer for unilateral contractConsideration No consideration, no contract.Output or requirements contracrsExclusive dealingsPay early to less the debtAccord and satisfactionComposition agreementsForbe