国际商法 Part 3 Contract Law 合同法

1、Section III Contract law for the International Sale of GoodsMajor Issues to Be CoveredMajor Issues to Be Covered Definition and Form of Contract Validity and Formation of Contract Contents of a Contract Breach of Contract and RemediesPart IFormation and Validity of ContractsI Definition and Form of

2、ContractI Definition and Form of Contract1. Definition of Contract1. Definition of Contract合同合同/ /协议协议A) American Law : “A promise or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”B) Chinas Contract Law: “A contra

3、ct is an agreement establishing, modifying and terminating the civil rights and obligations between natural persons, legal persons or other organizations.”本法所称合同是平等主体的自然人、法人、其他组织之间设立、变更、终止民事权利义务关系的协议。2. Form of 2. Form of ContractContract合同形式合同形式A) UK Law: In the early period, it was required that c

4、ontract be in writing. 1906 revised Sales of Goods Act repealed the in-writing requirement.B) CISG: “A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirements as to form. It may be proved by any means, including witnesses.”C) UNIDROID PICC: almo

5、st the same with CISGD) Chinas Contract Law (Article 10): “The parties may, when making a contract, use written form, verbal form or any other form.”当事人订立合同，有书面形式、口头形式和其他形式。“The written form shall be adopted if laws or administrative regulations so require. The written form shall be adopted if the p

6、arties so agree.”法律、行政法规规定采用书面形式的，应当采用书面形式。当事人约定采用书面形式的，应当采用书面形式。II. Validity and Formation of Contract1. Essential elements of a valid contract1. Essential elements of a valid contracta) an agreement between parties (offer and acceptance).协议=要约+承诺b) legally sufficient consideration （对价）c) legal cap

7、acity缔约能力d) not for illegal purpose/contrary to public policy.e) intention to create legal relations2. Offer 2. Offer 要约要约1) the concept of offerAn offer is a proposal by one person to another indicating an intention to enter into a contract under specified terms.The Second Restatement of Contracts:

8、 “ An offer is a manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”2) Requirements of Offera) An offer must be addressed to one or more specific persons.b) an offer must be suff

9、iciently definite and indicates the intention of the offeror to be bound. (Definiteness: description of goods, expressly or implicitly specifies the quantity and price etc.)3) Lapse of Offer要约的失效要约的失效a) On the death either of the offeror or the offeree before acceptance.b) By non-acceptance within t

10、he time prescribed for acceptance.c) When no time for acceptance is prescribed, by non-acceptance within a reasonable time. (How to decide reasonable time?)d) Express rejection.明确拒绝e) Counter offer.反要约f) Revocation by the offeror.撤销/撤回要约4) Revocation of offer要约的撤销要约的撤销a) Definition: The offeror noti

11、fies the offeree of the invalidity of the offer so as to be free from it before acceptance of the offeree.b) English law: An offer may be revoked at any time before acceptance.c) CISG: An offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance; An offer cant

12、 be revoked (a) if it indicates 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.3. Acceptance承诺Article 25 A contract is established when the acceptance becomes effective. 承诺生效时合同成立。Article

13、26 An acceptance becomes effective when its notice reaches the offeror. If notice of acceptance is not required, the acceptance shall become effective when an act of acceptance is performed in accordance with transaction practices or as required in the offer.承诺通知到达要约人时生效。承诺不需要通知的，根据交易习惯或者要约的要求作出承诺的行

14、为时生效。1) Definition1) DefinitionOfferees manifestation of the intention to be bound to the terms of the offer. A contract isnt formed until the offer is accepted by the offeree. The offeree may accept at any time before the offer is invalid.An acceptance may take the form of a statement or any other

15、conduct that indicates the offerees intention to be bound to the contract.2) Requirements of Acceptance2) Requirements of Acceptancea) must be made by the offeree.b) Must be made within the period of validity. c) Must match the terms of the offer exactly and unequivocally.与要约内容一致Question: What is th

16、e nature of an “acceptance” that does not match the terms of the offer exactly?Receipt Theory: Under most civil law, a contract is formed when the acceptance is received by the offeror. CISG, UNIDROIT PICC and China Contract Law all adopt the receipt theory.3) 3) Valid Time of AcceptanceValid Time o

17、f AcceptancePinnels case 1602Pinnels case 1602 Cole owed Pinnel a sum of money (8 10s) but at Pinnels request paid a part of this amount (5 2s 6d). Pinnel decided to accept this amount and said he would not claim the rest. But later, Pinnel regretted, demanding the payment of the rest. Cole claimed

18、that there was an agreement by Pinnel that the part-payment would discharge the full debt.Question: Which party do you stand by?Question: Which party do you stand by?6 6. . Consideration in Common Consideration in Common LawLaw对价对价1) DefinitionConsideration is some benefit received by a party who gi

19、ves a promise or performs an act, or some detriment suffered by a party who receives a promise. (the price you pay to buy another persons promise) Under common law, it is one of the three elements of contract formation.2) General Rules on Considerationa) must have sufficient value but need not be ad

20、equate.b) must be present or future and cannot be past.c) must be possible to perform.d) must be legale) must move from the promiseef) must not be too vagueArticle 54 A party shall have the right to request the peoples court or an arbitration institution to modify or revoke the following contracts:下

21、列合同，当事人一方有权请求人民法院或者仲裁机构变更或者撤销(1) those concluded as a result of significant misconception;因重大误解订立的(2) those that are obviously unfair at the time when concluding the contract.在订立合同时显失公平的。If a contract is concluded by one party against the other partys true intentions through the use of fraud, coerci

22、on, or exploitation of the other partys unfavorable position, the injured party shall have the right to request the peoples court or an arbitration institution to modify or revoke it.一方以欺诈、胁迫的手段或者乘人之危，使对方在违背真实意思的情况下订立的合同，受损害方有权请求人民法院或者仲裁机构变更或者撤销。Where a party requests for modification, the peoples c

23、ourt or the arbitration institution may not revoke the contract.当事人请求变更的，人民法院或者仲裁机构不得撤销。最高人民法院关于贯彻执行若干问题的意见(试行)第七十一条规定：“行为人因对行为的性质、对方当事人、标的物的品种、质量、规格和数量等的错误认识，使行为的后果与自己的意思相悖，并造成较大损失的，可以认定为重大误解。”PartIIContents of Contracts: Sales Contract as an Example1. Express 1. Express and Implied termsand Implie

24、d terms明示明示/ /默示默示 (1) An express term is one agreed by parties between them during formation of a contract(2) Implied terms are terms not agreed upon by parties, but are incorporated into the contract in one of the following ways (equally binding):Implied by statuteImplied by customImplied by the c

25、ourts2.Conditions2.Conditions, Warranties and Innominate Terms , Warranties and Innominate Terms (1) Condition核心条款: A major term. If one party breaches a condition, injured party may: terminate the contract and refuse to carry out his obligations under the contract, or continue with the agreement an

26、d sue for breach of contract (for damages).(2) Warranty从属条款: A minor term of a contract. If one party is in breach of a warranty, injured party does NOT have right to terminate agreement. He must complete his part of the agreement and sue the other party for damages for breach. （仅一个选择）(3) Innominate

27、 terms无名条款: With an innominate term, the rights of the injured party in the event of a breach depend on the actual circumstances or consequences of the breach. 3.Obligations 3.Obligations of the of the SellerSeller (1) delivery of the goods (2) turning over of documents(3) Sellers assurance of the q

28、uality of goodsSale of Goods Act Sale by description: Satisfactory quality + fitness for a particular purpose Sale by sample:UCC: Express warranty Implied warranty: merchantability and fitness for a particular purposeChinese LawArticle 153 The seller shall deliver the subject matter in compliance wi

29、th the agreed quality requirements. Where the seller gives the quality specifications for the subject matter, the subject matter delivered shall comply with the quality requirements set forth therein.出卖人应当按照约定的质量要求交付标的物。出卖人提供有关标的物质量说明的，交付的标的物应当符合该说明的质量要求。Article 168 In a sale by sample, the parties

30、shall place the sample under seal, and may specify the quality of the sample. The subject matter delivered by the seller shall comply with the sample as well as the quality specifications.凭样品买卖的当事人应当封存样品，并可以对样品质量予以说明。出卖人交付的标的物应当与样品及其说明的质量相同。(Chinas Contract Law)经营者应当保证在正常使用商品或者接受服务的情况下其提供的商品或者服务应当具有

31、的质量、性能、用途和有效期限；但消费者在购买该商品或者接受该服务前已经知道其存在瑕疵，且存在该瑕疵不违反法律强制性规定的除外。经营者以广告、产品说明、实物样品或者其他方式表明商品或者服务的质量状况的，应当保证其提供的商品或者服务的实际质量与表明的质量状况相符。第33条,消费者权益保护法 (4) assurance of ownership of the goods (CISG)Seller must deliver the goods which are free from any right or claim of a third party, unless the buyer agreed

32、 to take delivery subject to that right or claim.4) Buyers Obligations4) Buyers Obligations(1) payment of the price(2) taking delivery (CISG) doing all the acts which could reasonably be expected him in order to enable the seller to make delivery; taking over the goods.11. Passing of Risk11.1 Common

33、 Law11.1 Common Law1) English law: the party who bears the risk of loss is the party who owns them at that moment.2) China Contract law Contracted time of passing of risk; By seller before delivery, by buyer after delivery; Where goods needs carriage, by buyer after the seller has delivered the good

34、s to the first carrier. For goods on route of carriage, by buyer as of the time of the conclusion of the contract. If goods not satisfied the quality, buyer may refuse to accept or rescind the contract, the seller shall bear the risk; Non-delivery due to causes of the buyer, the buyer shall bear the

35、 risk; If seller put goods at the place of delivery, but the buyer fails to take delivery ,the risk shall be borne by the buyer as of the date of breach;13. Excuses for Non-Performance13. Excuses for Non-Performance13.1 Common 13.1 Common lawlaw1) impossibility of performance 履行不能 death of one party

36、; destruction of the specific subject matter; performance of the contract has been render illegal or made impossible due to the fault of the other party.2) supervening （随后产生/意外产生）illegalityExcusable when performance become illegal after the conclusion of the contract.3) frustration of purpose (rare)

37、 情势变更A partys performance could be excused if some unforeseen event occurred that frustrated the purpose of the contract. The event must have the effect to destroy totally the value of the contract to the party rely on the excuse. 4) commercial impracticability 商业上不能实现A party to a contract who is pr

38、evented from performing may attempt to be excused under the doctrine of commercial impracticability. A thing is impracticable when it can be done only at an excessive and unreasonable cost.13.2 Force Majeure Clauses13.2 Force Majeure ClausesForce majeure clauses generally do not excuse a partys nonp

39、erformance entirely, but only suspend it for the duration of the force majeure. Notice and certificate attesting force majeure events must be given at a fixed time or reasonable time.Neither party shall be held responsible for failure or delay to perform all or any part of this Contract due to flood

40、, fire, earthquake, snowstorm, hailstorm, hurricane, war, government prohibition or any other events that are unforeseeable at the time of the execution of this Contract and could not be controlled, avoided or overcome by such party.任何一方如果由于洪水、火灾、地震、雪暴、雹暴、飓风、战争、政策禁令或其他在合同执行时无法预见并不能控制、不可避免或无法克服的事件致使不

41、能或迟延履行合同的全部或一部分时，该方不承担责任。Part IIIBreach and Remedies1. Discharge of contract1. Discharge of contractDischargeDischarge is the way that a contract comes to an end. Ways of discharge: Mutual agreement Frustration (by factors such as a war or natural disaster) Performance (Most contracts discharged thi

42、s way) BreachWhen a contract is not discharged by performance or agreement between the parties (or ended by factors outside the control of the parties), there is a breach of contract.2. Remedies for Breach of Contract2. Remedies for Breach of Contract2.1 Concept of breach of contractA party without

43、lawful excuse fails or refuses to perform what is due from him under the contract, or performs defectively or incapacitates himself from performing.The objective of remedies: to put the injured person in the same position as if the contract has been performed.2.2 General principles of Remediesa) The

44、 doctrine of compensation 补偿原则Doctrine of expectation interest（期待利益）: the injured party is entitled to his expectation interest lost by the party in breach. (to be in as good position as that party would have been in had the contract been performed)Doctrine of reliance interest （信赖利益）：A claimant may

45、 ALTERNATIVELY seek to have his reliance interest protected. This refers to the position he would have been in had he NOT relied on the contract. This compensates for wasted expenditure.Doctrine of restitution interest 归还利益: A claimant claiming the protection of his restitution interest does not wis

46、h to be compensated for the loss which he has suffered; he wishes to deprive the defendant of a gain which he has made at the claimants expanse. Restitution arises most directly in partially performed contracts.b) The Doctrine of Limitations on Damages Non-breaching party has the duty to mitigated d

47、amages; (Enlarged damages are not compensated) Damages must be established with a reasonable degree of certainty; (Not awarded on a purely speculative basis) Damages must be either foreseeable to the breaching party or would naturally flow from the breach. Article 113 Where a party fails to perform

48、its obligations under the contract or its performance fails to conform to the agreement and cause losses to the other party, the amount of compensation for losses shall be equal to the losses caused by the breach of contract, including the interests receivable after the performance of the contract,

49、provided not exceeding the probable losses caused by the breach of contract which has been foreseen or ought to be foreseen when the party in breach concludes the contract.3. Buyers Remedies3.1 Specific Performance 3.1 Specific Performance 实际履行实际履行1) common law and civil lawCivil law: Specific perfo

50、rmance as usual remedyCommon law: The usual remedy is damages. Specific performance is used only where money damages cannot be calculated or are inadequate, eg: the subject matter of the contract is unique. (artist work, real estate etc.)2) UNIDROIT PICCPermitting specific performance, but with exce

51、ptions: performance is impossible in law or in fact; performance or enforcement is unreasonably burdensome or expensive; the party entitled to performance may reasonably obtain performance from other source; performance is of an exclusively personal character; the party entitled to performance does

52、not require performance within a reasonable time after it has become aware of the non-performance.3) China Contract LawArticle 110: if one party to a contract fails to perform the non-monetary debt or its performance of non-monetary debt fails to satisfy the terms of the contract, the other party ma

53、y request it to perform except under any of the following circumstances: (1) it is unable to be performed in law or in fact; (2) the object of the debt is unfit for compulsory performance or the performance expenses are excessively high; or(3) the creditor fails to request for performance within a r

54、easonable time period.3.2 Avoidance 3.2 Avoidance 撤销合同撤销合同1)common law and civil lawIf the breach is material or fundamental, the buyer may simply cancel the contract by notifying the seller of avoidance of the contract.2) UNIDROIT PICCA party may terminate the contract where the failure of the othe

55、r party to perform an obligation amounts to fundamental non-performance. 3.3 Price Reduction3.3 Price ReductionPrice reduction is applied when:(1) the seller makes only a partial shipment, or(2) the goods are nonconforming. The amount of reduction is often within the discretion of the buyer. If the

56、seller disputes the buyers calculation, he can resort to legal action.3.4 Refuse Early Delivery and Excess Quantity3.4 Refuse Early Delivery and Excess QuantityIf seller delivers goods before the date fixed, the buyer may take delivery or refuse to take delivery.If seller delivers a quantity of good

57、s greater than that agreed in the contract, buyer may take delivery or refuse to take delivery of excess quantity. If the buyer takes delivery of the excess quantity, he must pay for it at the contract price.4. Sellers 4. Sellers RemediesRemedies1) specific performance2) avoidance of the contract (

58、for fundamental breach or failure to cure a defect)3) obtain missing specifications5. Remedies 5. Remedies Available to Both Buyers and SellersAvailable to Both Buyers and Sellers1) suspension of performance2) avoidance in anticipation of a fundamental breach 3) damages6. Damages6. DamagesCISG: Dama

59、ges for breach of contract by one party consist of a sum equal to the loss, including loss of profit suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contr

60、act.7. Anticipatory 7. Anticipatory Breach of Breach of ContractContract7.1 Definition7.1 DefinitionOne contracting party may inform the other party, before the time fixed for performance under the contract, that he will not perform his obligations under contract.7.2 Remedy7.2 RemedyThe other party