国际商法unit 7

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Case: Frank offers to sell his television to Peter for €200. It is worth about €250. Peter accepts the offer and tries to pay Frank €200. Frank refuses by saying that he wasn’t really serious. Issue: Can Peter obtain the television by giving Frank €200?
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serious and objective:
– Example
Gibson v Manchester City Council 1979
• The case concerned Mr Gibson who completed an application form to buy his council house from the council. However, when the council changed hands from Conservative to Labour the council said that no more council houses were for sale and that he had not actually entered into a contract to buy his council house. the letter from the council which Mr Gibson contended was the offer for sale. It stated, ‗I refer to your request for details of the cost of buying your council house. The Corporation may be prepared to sell the house to you at a purchase price of £2,725 ….etc If you would like to make formal application …etc‘
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Juristic persons法人
Entrusted agent 委托代理人
Elements
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(1) offer(要约) (2) acceptance（承诺） (3) capacity (订立合同的能力） (4) intention to create legal relations(创立合同 关系的意图） (5) mutual assent (合意) (6) consideration (对价)
Contract procedure订立合同的过程
offer — counteroffer — offer — acceptance
offer 要约
• • • An offer is a promise, which is capable of acceptance, to be bound on particular terms. The most important feature of a contract This can be called a concurrence of wills or consensus ad idem of two or more parties.
Intention
• Offers made in obvious anger, jest, or undue excitement do not meet the serious-and-objectiveintent test.
Definiteness
• Definite terms: (CISG, article 14) – indicates or describes the goods or services – expressly or implicitly specifies the quantity – expressly or implicitly specifies the price for the goods Case: – Abrams v. Illinois College of Podiatric Medicine – Bushwall Properties Ltd v Vortex Properties Ltd 1976 – Sudbrook Trading Estate Ltd v Eggleton 1983
• • • Intention Definiteness Communication
Intention
• The offer‘s words must give the offeree assurance that a binding agreement is intended.
– – – Invitation to treat Quotation, price list, catalogue Case: Gibson v Manchester City Council 1979 Storer v Manchester City Council 1974
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A party must have capacity to contract; 当事人必须具有订约能力 Parties: Natural persons自然人：
person with full capacity完全行为能力人； person with limited capacity限制行为能力人； person with no capacity无行为能力人.
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consensus ad idem: meeting of the mind – subjective agreement to the [same] thing – objective perspective
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An objective perspective means that it is only necessary that somebody gives the impression of offering or accepting contractual terms in the eyes of a reasonable person, not that they actually did want to form a contract.
Chapter7 Contract Law
Sophie Sept. 26,2013
Contract合同
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Definition:
A contract is a legally enforceable agreement between two or more parties with mutual obligations.
A contract will be formed when the parties have met such a requirement.
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offer
构成条件：
有明确的依要约订立合同的意思表示 原则上须向特定的人发出 内容必须明确具体源自文库送达要约人时生效
Requirements of an offer
For Reference
• United States: – Contract is a promise or set of promises for which the law will provide a remedy in the event of a breach. French Civil Code: – Contract is a mutual assent with which one person or more is obligated to give a thing, to do or not to do a thing to one person or more persons. China: – A contract shall be an agreement whereby the parties establish, change or terminate their civil relationship
Bushwall Properties Ltd v Vortex Properties Ltd 1976
• The agreement provided for the sale of land in three instalments. Following each instalment, quote, ‘a proportion of the land would be given over’ to the purchaser. However, there was no mechanism for saying which bit of land would be given over and so the offer was regarded as too vague to be accepted.
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Storer v Manchester City Council 1974
• the Council wrote to Mr Storer saying, ‘I enclose the agreement for sale. If you will sign the agreement and return it to me, I will send you the agreement signed on behalf of the corporation in exchange.’
Case: serious intention
• Facts: Frank became angry because his brand-new €25,000 car broke down on the highway, leaving him stranded. Without thinking, Frank said out loudly: ― I‘d sell this car to the first person who offered me €1.00 for it.‖ Issue: Is this an offer made by Frank? Can a bystander obtain the car by giving Frank €1.00?
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Abrams v. Illinois College of Podiatric Medicine
• 原告在1973年成为被告学院的学生。入学后的第一个学 期，原告未能通过哲学课的考试，也未能通过补考。在 第二个学期原告又有两门课考试不及格。1974年6月14 日，学校通知他，由于他的学习成绩太差，他已被学院 除名。原告后来对该学院提起这一诉讼，称该学院违反 了合同。他要求继续在该学院学习，并由学院在学习上 对他提供帮助。原告的理由是：学院曾告诉他，他不用 为他的学习成绩担忧，学院将尽一切努力帮助他，包括 为他提供一些变通的办法；由于学院作出了这些许诺， 他与学院之间发生了有约束力的和有强制执行效力的口 头合同关系。
有明确的依要约订立合同的意思表示原则上须向特定的人发出内容必须明确具体内容必须明确具体送达要约人时生效offerrequirementsofanoffer?intention?definiteness?communicationintention?theofferswordsmustgivetheoffereeassurancethatabindingagreementisintendedinvitationtotreatquotationpricelistcataloguecase
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Contract law合同法
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Origin: Latin :pacta sunt servanda Literally: ―pacts must be kept‖ Translation: ―Agreements to be kept‖
Common law: such jurisdictions usually retain a high degree of freedom of contract, with parties largely at liberty to set their own terms. Civil law: typically applies certain overarching principles(总体原则) to disputes arising out of contract, as in the French Civil Code.