法律英语-课件内容重点摘录整理.doc

法律英语L1 Introduction法律英语-期末评分细则Assessment Percentages: 10% Attendance & Participation 15% Law Forum 15% Writing: Weekly Case Reports 10% Monthly Quizzes 50% Final Exam法律英语学习内容Content(substantive legal knowledge):Contracts under the common lawInternational commercial contracts under the CISGDefinition and types of contractAn introduction to the history and development of the CISGApplicability of the CISG Formation of contracts Validity of contractsValidity and formation of international sales contracts Warranty provisionsBreach and remediesRemedies for breach of contractDischargeExcuses for nonperformanceA case report consists of: Title of the case Facts Legal issue (more than one ; legal issues disputes of parties) -Legal issue is the point or points of law addressed by the case. - Through Comparing the claims of opposite parties and the key argument is usually the legal issue of the case, which is presented to judge to make decision. Reasoning = relevant rules - the application of those rules - the conclusion the court reached HoldingL2 Conflict of laws1In the international business transaction, such as, in an international sales contract, the parties from different countries are involved, and the contracting place may be different from the place of performance. If there arises dispute, what matters must the parties concern with?-Which countrys law will apply to the contract?-Where will the case be heard?2To know what law applies to a contract, court will resort to conflict of law rules.( conflict of law is the area of law of each legal system which regulates how to deal with cases involving a foreign factor.)But application of conflict of law rules may bring about uncertainty and lack of predictability over how the case will be resolved, thus increase the risk of an international sale.3To avoid uncertainty and unpredictability of conflict of law, many international contracts designate the parties choice of law which is to apply in case of dispute. That is, according to the rule of autonomy of the (partys) will, the parties agree upon which law will govern a contract and make a choice of law clause in their contract.4the CISGL3 - History and Development of the CISGHow to deal with contract disputes in international transactions? -Where should the case be heard? -Which law should be the applicable law of the case?1. Autonomy of parties will When contract parties specify the choice of law and choice of forum, courts in most countries will require the parties to honor their contractual commitment.2. Conflicts of law3. The CISG About the CISG (p110 chapter4)1. Which organization drafted the CISG, UNIDROIT or UNCITRAL?2. Whats the main difference between the CISG and the other codes made by the UN?3. How did the CISG become the U.S. law?. T or F statements1. T -Treaties prevail over state statutes in the U.S.2. T - The CISG prevails over the UCC.CISG (federal law)UCC (state statutes)PART ISPHERE OF APPLICATION AND GENERAL PROVISIONS(适用范围和准则)Chapter ISPHERE OF APPLICATIONArticle 1(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States: (a) when the States are Contracting States; or (b) when the rules of private international law lead to the application of the law of a Contracting State. (2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract. (3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention. There are three conditions if The CISG is applicable:a -the commercial sale of goods; b- between two parties whose places of business are in different countriesc- the places of business are located in countries that have ratified the convention.（How to decide “place of business”?）Article 2This Convention does not apply to sales: (a) of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use; (b) by auction; (c) on execution or otherwise by authority of law; (d) of stocks, shares, investment securities, negotiable instruments or money; (e) of ships, vessels, hovercraft or aircraft; (f) of electricity. What sales are excluded from the CISG? And why?L4 ContractPart1. A General Introduction to Contractn definition of a contractA contract is an agreement between competent parties based on the genuine assent of the parties, which is supported by consideration and made for a lawful objective and in the form required by law, if any.n The basic requirements of a valid contract1. Agreement/genuine assent (a meeting of minds)2. Valid consideration-mutual promise3. Formation (offer + acceptance = contract)4. Capacity of parties to make a contract5. The legality of purpose or object of contract6. The form of contract must conform to the legal requirements A valid contract should include all these essential elements and meet all these requirements. n Classification of contractWritten or oral contractsBilateral or unilateral contractsExpress or implied contractsExecuted or executory contractsValid, void, voidable contracts (P98P104 Fundamentals of Business Law) According to their enforceability and validity, contracts can be classified into the following ones:1 _ Valid contracts _ has the necessary contractual elements, which is enforceable and has legal binding force.2 _ void contracts _ is not a contract at all. It has no legal effect. No parties should be bound by it.3 _ voidable contracts _ is a valid contract except that one party is entitled to rescind it. n Typical contract provisionsDuties and obligationsRepresentations and warrantiesTermination clausesRemedy clausesArbitration clausesPart2. Validity and Formation of International Sales Contracts (I)I. What does the CISG governII. Enforcement of illegal contract III. The writing requirementIV. Problems of interpretationThe substantive study of the CISG( uniform code for the international contract of sale of goods)the CISGbalance : common law & civil law I. What does the CISG govern? What is the CISG not concerned with? (Art. 4 ,5 & 11)n Only govern(1) Formation(2) Rights and obligations of the buyer and seller(3)The form of contractn Not govern(1) Validity(2) The property of the goods sold(3) Liability for death or personal injury caused by goods (4) Legal capacity of partiesII. Enforcement of illegal contracts Contracts with illegal purposes have no legal effects. Such contracts are void and unenforceable. ( Tarbert Trading, LTD. v. Cometals, Inc) III. The writing requirement (the form of the contract) 1.The UCC (the 2003 proposed amendaments) 2.The CISG 3.Foreign Economic Contract Law of China (1985) 4. New contract law of China (1999)Iv. Problems of Interpretationn Some general guiding principles of interpretation of contract:1. Plain English principle (the literal rule)2. The principle of four corners3. Types of writing -Handwritten wordsTyped wordsPrinted words4. Standard form contract Such contract is construed against the party who drafts it, otherwise exclusion clauses are construed against the party inserted them into the contract.5. Contracts affecting public interests Such contracts shall be construed in favor of the public.6. When one interpreter renders the contract valid and the other renders it invalid, the court usually adopt the one which renders the contract valid.7. Parol evidence rule(1) A. Where the parties have entered into a written sales contract that is intended to the final expression of the parties agreement, the written agreement may not be contradicted by any prior agreement or contemporaneous oral agreement.( Where the sum payable is expressed in words and also in figures, and there is a discrepancy between the two, the sum denoted by the words is the amount payable.)B. Function of parol evidence: A. To clarify an ambiguity B. To prove additional terms of the agreement(2) Whether the CISG adopts the parol evidence rule? -No. Under the CISG in deciding the intend of the parties, all related circumstances may be considered. (Art. 8 CISG) Whether the CISG allows to use parol evidence? -Yes. Under the CISG courts have wide leeway in using parol evidence in deciding the intend of the parties to a contract.8. In common law countries the courts often look to the past dealings of the parties and to trade usages for guidance in interpreting contracts or filling the gaps. The CISG closely resembles the way trade usages are handled under American law. (Art.9 CISG)n 课堂Case analysis: Snow v. WinnFacts: A landlord sued his tenant in order to terminate the tenants lease. The landlord claimed the tenant had breached the lease agreement by using the premises for a convenience grocery store in violation of the “purpose clause” of the agreement. This clause stated that the tenant would use the premises for a gasoline service station, car wash, and “associated activities”. The landlord alleged he had an oral understanding with the tenant that the premises would not be used as a convenience store.Legal issue: Whether this oral testimony is admissible under the parol evidence?Reasoning:(1) The parol evidence rule states that.(2) A.In this case, the parol evidence rule prohibits oral testimony about an integrated, written instrument. B. Furthermore, even if the phrase “associated activities” may be viewed as an ambiguity. Here the oral testimony would be admissible to explain the meaning of such words. C. There was sufficient support for the courts conclusion that retail gasoline operations are commonly associated with convenience store facilities and that parties intended to have good items sold on the premises.Decision: The court held this testimony was inadmissible.L5-8 Formation of Contract Offer + Acceptance = ContractPart1. OfferI.DefinitionsII. Basic elementsIII. Some problems about offerI.DefinitionsThe Common Law definition： An offer is a promise or commitment to perform or refrain from（制止）performing some specified act in the future. An offer must involve a definite promise by the offeror that he will bind himself if the exact terms specified by him are accepted. An offer may be made either to a particular person or to the public at large.The Chinese Law definition： An offer is a proposal with a view to entering into a contract with other parties. The proposal shall comply with the following stipulations: (1) Its contents shall be detailed and definite; (2)It indicates the intention of the offeror to be bound in case of acceptanceII. Basic elements = What are the basic elements to make an effective offer? P1161. Indicates or describes the goods;2. Expressly or implicitly specifies the quantity;3. Expressly or implicitly specifies the price for the goods.III. Some problems p1171. Public offer Can an offer addressed to the public (ads)?Different countries treat “public offer” differently:Germany advertisements addressed to the public in general are mere invitations to deal.要约邀请the United States & China do recognize specific advertisement that describe the goods、quantity、price my be considered an offer CISG an advertisement or circular is not an offer unless the contrary is clearly indicated by the person making the proposal.2. Open price term If the proposal is not definite enough, such as, no definite price terms, can it be taken as an offer? Yes, it can.(How to deal with “open price terms” in different legal systems?) CISGlook to the trade or to the market price of comparable goods to make its own determination of price, and all its other provisions will remain in effect. Art.553. Firm offers How does the UCC define firm offer? not be revoked if it is made in a signed writing or record that gives assurance that it will remain open for a stated period of time , not to exceed three months. How does the CISG define firm offer - firm offer are valid even if they are not in writing. Moreover, an offer may not be revoked if the offeree reasonably relies on the offer as being irrevocable and the offeree has acted in reliance on the offer.4. To withdraw an offer (1)How to withdraw the offer legally? (2)Whether an irrevocable offer can be withdrawn? Yes. Though irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. ( Art.15)5. To revoke an offer(1) Suppose an offer has reached the offeree, but the offeror still wants to cancel it. How should he do? The revocation reaches the offeree before he has dispatched an acceptance. (Art.16)(2) Under what circumstances can an offer not be revoked?a. if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; orb. 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.6. To terminate an offer An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror. - Article 17True or False statements1An offer becomes effective when the offeror dispatches it towards offeree. F- an offer become effective when reaches the offeree2Before the offer reaches the offeree, it can be revoked by the offeror at will. F- two kind of exceptions (Art.16)a b.3An irrevocable offer cannot be withdrawn. F - Though irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. (Art.15)4. Even if an offer is irrevocable, it may be withdrawn. T5. After an offer reaches the offeree, its unlikely to make it invalid. FPart2. Acceptancen DefinitionAcceptance is a voluntary act (either words or conduct) by the offeree that shows assent (agreement) to the terms of an offer. The acceptance must be unequivocal(不含糊) and must be communicated to the offeror. n How to make a valid acceptance?Article 18(1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance.(2) An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise.(3) However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph.True or FalseA makes an offer to B. 1. B is not interested, but Bs friend, C, accepts the offer. Then a contract is concluded.F -Who can accept? -I. the person to whom the offer is made. II. His agents2. Offeree says, “I accept the offer, but I wish I could have gotten a better price.” So there is an effective acceptance. F 虚拟语气表过去希望，但已不可能实现3. The offeree says, “I accept the offer, but only if I can pay on ninety days credit. Then this is a valid acceptance. F It is a counter offer 4. The offeree replies, “I accept; please send written contract.” This should be taken as an acceptance. ?5. The offeree replies, “I accept if you send a written contract.” This should be taken as an acceptance. ？6It is reasonable for the offeror to state, “By your silence and inaction you will be deemed to have accepted this offer.”- Silence can never be an acceptance.(Silence can be an acceptance (1) when the parties have made such agreements (2) or (2) when the offeree has had prior dealings with the offeror.)CISGn Definition Article 18A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. n Three basic elements to make a valid acceptance (1) Offeree (2) through a statement or other conduct (3) indication of assent to the offern When the acceptance becomes effective?1. Under the common law, the acceptance becomes effective as soon as it is dispatched by the offeree, and then a contract is formed. -the mailbox rule2. Under the civil law, the acceptance becomes effective when it reaches the offeror, and then a contract is concluded. -the rule of receipt of the letter of acceptance3. As to this point, CISG follows an approach somewhat different from the common law but similar to the civil law. -Article 18n CISG tries to compromise on two legal systems