国际商法复习资料.doc

国际商法题型：一、翻译题：中翻英；英翻中；（短句） 15分二、判断题 20分三、简答题 30分四、案例题 35分Lecture 2 Formation of the Contract1公司成立的条件-双方约定、承诺（acceptance） 外部条件的符合 公司生效2. 什么是offer, 什么是有效的offer? 什么是invitation of offer?（1）An offer is aproposal addressed to specific persons indicating an intention by the offeror to be bound to the sale or purfchase of particular goods for a price.（2）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. （3）Effectiveness of an Offer： An offer becomes effective only after it reaches the offeree.3. 区分offer（要约）与invitation of offer（要约邀请）要约邀请与要约的区别：a.要约邀请是指一方邀请对方向自己发出要约，而要约是一方向他方发出订立合同的意思表示； b.要约邀请不是一种意思表示，而是一种事实行为。要约是希望他人和自己订立合同的意思表示，是法律行为； c.要约邀请只是引诱他人向自己发出要约，在发出邀请要约邀请人撤回其中邀请，只要未给善意相对人造成信赖利益的损失，邀请人并不承担法律责任，以下四个法律文件为要约邀请：寄送的价目表、拍卖公告、招标公告、招股说明书。4. Offer特殊情况：广告；超市。（要约邀请or要约？）（1）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. （2） 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 indicted by the person making the proposal. （3） Case study: Carlill v. Carbolic Smoke Ball The defendants, who were the manufacturers of the carbolic smoke ball, issued an advertisement in which they offered to pay 100 pound to any person who caught flu after having used one of their smoke balls in the specified manner, and they deposited 1,000 pound in the bank to show their good faith. The claimant caught flu after using the smoke ball in the specified manner. She sued for the 100 pound. The judge held that the advertisement is an offer to the whole world and that a contract was made with those persons who performed the condition on the faith of the advertisement. 发出生效？到达生效？5. 区分offer什么时候被撤销（revocation）与撤回（withdrawal）（1）RevocationOffers that do not state that they are irrevocable can be revoked any time before the offeree dispatches an acceptance.（2） Withdrawal（3） Termination of offerA: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B: 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. （4） 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. 6. 合同的发出、撤回、有效、生效7. 承诺Acceptance：到达生效？（大陆） 要约生效？（英美） 承诺能被撤销？（X） 撤回？（大陆V） 要约：到达生效 承诺生效的时间=合同生效的时间？（1） 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. （2）Time of Acceptance Acceptance must be received by the offeror within the time period specified in the offer. If no time period is given, acceptance must be received within a reasonable time. If the offer is oral, the acceptance must be made immediately, unless the circumstances indicate otherwise. Civil law countries receipt theoryThe acceptance takes effect only after it reaches the offeor. Common law countries mailbox ruleThe acceptance takes effect when it is sent no matter whether the mail is lost in transit. Withdrawal Because an acceptance is normally not effective until the offeror receives it, an offeree may withdraw his acceptance any time before or simultaneous with its receipt. （3） Acceptance with Modifications 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) Case: Hyde v. Wrench The defendant offered to sell some land to the claimant for 1000, and the claimant replied by offering to purchase the land for 950. The defendant refused. So the claimant agreed to pay 1000. But the defendant still refused to sell. Did a contract conclude between the parties? （4）Form of Acceptance： By word By written form By Performance of an Act Silence8. “镜像规则”(mirror image rule) 是普通法上的传统制度，1887年的Langellierv。Shaefer一案中曾对这一规则做出经典的归纳：“一方对另一方所发出的交易要约施加责任于前者，除非后者根据要约的条款对其予以承诺。任何对这些条款的修改和背离都将使要约无效，除非要约方同意这种修改和背离。”“镜像规则”，要求承诺严格地与要约相符，否则将被视为反要约。Exception of mirror image rule/Battle of Forms 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 delay, objects orally to the discrepancy or dispatches 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. Lecture 3 Enforceability of the Contract1. Elements Affect the Enforceability 1)Capacity of Parties 2)Intention of Parties Misrepresentation Duress Undue influence Mistake 3) Illegality 4) Consideration2. Capacity of Parties Capacity means the ability to incur legal obligations and acquire legal rights. Today, the primary classes of people who are considered to lack capacity are minors, persons suffering from mental illnesses or defects, and intoxicated persons.3. Capacity of Minors A minor is a person under the age of 18. The law usually adopts a particularly protective attitude towards minors. The exercise of this right to avoid a contract is called disaffirmance. The right to disaffirm is personal to the minor. That is , only the minor or a legal representative such as a guardian may disaffirm the contract. 18岁以下：未成年人-不是有效合同Eg: In UK The general rule is that a minor is not bound by a contract which he enters into during his minority. But the rule is subject to some exceptions. a. A contract to supply a minor with necessaries is binding upon the minor where the contract as a whole is for the benefit of the minor. b. A minor is bound by a contract of employment if that contract is generally for his benefit. c. Certain contracts with minors are not void but only avoidable, that is, the contract is valid and binding upon the minor unless he repudiates liability before majority or within a reasonable time thereafter. 4. Capacity of Mentally Impaired Persons The contracts of people who are suffering from a mental defect at the time of contracting are usually considered to be avoidable. But the mental impaired person needs to prove his mental capacity was inferior when he made the decision. 5. Contracts of Intoxicated Persons Intoxication and Capacity Intoxication can deprive a person of capacity to contract. The mere fact that a party to a contract had been drinking when the contract was formed would not normally affect his capacity to contract. Intoxication is a ground for lack of capacity only when it is so extreme that the person is unable to understand the nature of the business at hand.Civil Capacity in China民事行为能力是指民事法律关系主体通过自己的行为取得民事权利、承担民事义务的能力。(1) full capacity: A citizen aged 18 or over shall be an adult. He shall have full capacity for civil conduct, may independently engage in civil activities and shall be called a person with full capacity for civil conduct.A citizen who has reached the age of 16 but not the age of 18 and whose main source of income is his own labour shall be regarded as a person with full capacity for civil conduct.(l)完全民事行为能力的人。十八周岁以上的公民是成年人，具有完全民事行为能力。对于十六周岁以上不满十八周岁的公民，如果是以自己的劳动收人为主要生活来源的，亦视为有完全民事行为能力的人。他们都可以独立进行民事活动，包括订立各种合同。(2)Limited capacity A minor aged 10 or over shall be a person with limited capacity for civil conduct and may engage in civil activities appropriate to his age and intellect; in other civil activities, he shall be represented by his agent ad litem (guardian) or participate with the consent of guardian. A minor under the age of 10 shall be a person having no capacity for civil conduct and shall be represented in civil activities by guardian.(2)限制民事行为能力的人。十周岁以上的未成年人是限制民事行为能力人，他们可以进行与其年龄、智力相适应的民事活动；至于其他民事活动应由其法定代理人代理，或者征得其法定代理人的同意。不能完全辨认自己行为的精神病人是限制民事行为能力人，他们可以进行与他的精神健康状况相适应的民事活动；其他民事活动由其法定代理人代理，或者征得其法定代理人的同意。(3)No capacity A mentally ill person who is unable to account for his own conduct shall be a person having no capacity for civil conduct and shall be represented in civil activities by his guardian.A mentally ill person who is unable to fully account for his own conduct shall be a person with limited capacity for civil conduct and may engage in civil activities appropriate to his mental health; in other civil activities, he shall be represented by his agent ad litem or participate with the consent of his guardian.(3)无民事行为能力的人。无民事行为能力人包括：不满十周岁的未成年人；不能辨认自己行为的精神病人。无民事行为能力人不能实施有效的法律行为，他们签订的合同是无效的。6. Misrepresentation and Fraud A misrepresentation is an assertion that is not in accord with the truth. When a person enters a contract because of his justifiable reliance on a misrepresentation about some important fact, the contract is avoidable. It is not necessary that the misrepresentation be intentionally deceptive. Misrepresentations can be either “innocent(not intentionally deceptive ) or “fraudulent ( made with knowledge of falsity and intent to deceive ). Fraud is the type of misrepresentation that is committed knowingly, with the intent to deceive. A person seeking to rescind a contract on the ground of innocent or fraudulent misrepresentation must be able to establish each of the following elements:1 )an untrue assertion of fact was made2 )The fact asserted was material or the assertion was fraudulent.3 )The complaining party entered the contract because of his reliance on the assertion.4 )The reliance of the complaining party was reasonable7. Mistake (mutual mistake 双方错误) In contract law, a mistake is a belief about a fact that is not in accord with the truth. The mistake must relate to facts as they exist at the time the contract is created. Requirements for Mutual Mistake A mutual mistake exists when both parties to the contract have erroneous assumptions about the same fact. When both parties are mistaken, the resulting contract can be avoided if the three following elements are present:1 The mistake relates to a basic assumption on which the contract was made.2 The mistake has a material effect on the agreed-upon exchange.3 The party adversely affected by the mistake does not bear the risk of the mistake.8. Duress 强迫 Duress is wrongful coercion that induces a person to enter or modify a contract. One kind of duress is physical compulsion to enter a contract. A far more common type of duress occurs when a person is induced to enter a contract by a threat of physical, emotional, or economic harm. In these cases, the contract is considered avoidable at the option of the victimized person. A. duress to personB. duress to goodsC. economic duress Requirements for DuressTo rescind a contract because of duress, one must be able to establish both of the following elements:1. The contract was induced by an improper threat or coercion of the will.2. The victim had no reasonable alternative but to enter the contract. Economic Duress： The doctrine of duress is often applied in a business context. Economic duress, or business compulsion, are terms commonly used to describe situations in which one person induces the formation or modification of a contract by threatening another persons economic interests.9. Undue Influence Undue influence is unfair persuasion. Like duress, undue influence involves wrongful pressure exerted on a person during the bargaining process. In undue influence, however, the pressure is exerted through persuasion rather than through coercion. The doctrine of undue influence was developed to give relief to persons who are unfairly persuaded to enter a contract while in a position of weakness that makes them particularly vulnerable to being preyed upon by those they trust or fear.Undue influence cases normally involve both of the following elements:1 )The relationship between the parties is either one of trust and confidence or one in which the person exercising the persuasion dominates the person being persuaded.2 )The persuasion is unfair.10. Illegality Illegal agreements will be classified into three main categories: (1) agreements that violate statutes;(2) agreements that violate public policy developed by courts;(3) unconscionable agreements and contracts of adhesion.11. Consideration对价 对价与代价？ 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。 Consideration is a complex term in common law, While in civil law system or CISG and PICC, there is no requirement of consideration to constitute a contract. In common law, consideration is necessary for the validity of every contract not under seal. A promise without consideration is a gift; one made for consideration is a bargain. And the promisee can not enforce a gift in the court. （1） A valuable consideration, in the sense of he law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.（2）Adequacy of Consideration General Rule: The first rule of the doctrine of consideration is that consideration must be sufficient but it need not be adequate. It means that as long as the promisees act or promise satisfies the legal value test, the courts do not ask whether that act or promise was worth what the promisor gave, or promised to give, in return for it.Case: Hong Kong International Arbitration Center（3） Past Consideration 过去的对价（代价）不是有效的对价 General Rule: The second rule is that past consideration is not good consideration Past consideration is an act or other benefit given in the past that was not given in exchange for the promise in question. Because the past act was not given in exchange for the present promise, it cannot be consideration. Eastwood v. Kenyon (1849) : The guardian of a young girl raised a loan to educate the girl and to improve her marriage prospects. After her marriage, her husband promised to pay off the loan. It was held that the guardian was unable to enforce this promise because the consideration which he had provided, which was bringing up and financing the girl, was past. 12. Moral obligationCase: White v. Bluett A son promised not to bore his father with complaints about the fathers distribution of his property among his children was held not to be good consideration for the fathers promise not to sue the son.The opposite case: Hamer v. Sidway: an uncle promised to pay his nephew 5000 if the nephew refrained from drinking liquor, using tobacco, swearing and playing cards untl he was 21. This promise was held to be enforceable because the nephew had a legal right to engage in such activities, and in giving up his rights he had provided consideration for the promise. 13. Preexisting Legal Duties1) The question whether performance of a duty which one is already under an obligation to perform can constitute consideration for a promise given in return is currently a very controversial one in English co