英美商法(双语)课程Chapter 4 contracts part2

合集下载

2024年国际商法第四章:协议法实务分析版

2024年国际商法第四章:协议法实务分析版

20XX 专业合同封面COUNTRACT COVER甲方:XXX乙方:XXX2024年国际商法第四章:协议法实务分析版本合同目录一览1. 协议定义与分类1.1 协议的定义1.2 协议的分类2. 协议的当事人2.1 当事人的资格2.2 当事人的能力3. 协议的订立3.1 订立的方式3.2 订立的程序4. 协议的内容4.1 协议条款的构成4.2 协议条款的要求5. 协议的效力5.1 协议的生效5.2 协议的无效6. 协议的履行6.1 履行的原则6.2 履行的方式7. 协议的变更与解除7.1 变更的条件7.2 解除的条件8. 协议的终止8.1 终止的原因8.2 终止的效力9. 违约责任9.1 违约的认定9.2 违约的责任10. 协议的争议解决10.1 协商解决10.2 调解解决10.3 仲裁解决10.4 诉讼解决11. 国际商事协议的特殊规定11.1 国际商事协议的定义与特点11.2 国际商事协议的适用法律12. 国际商事协议的争端解决12.1 国际商事协议争端解决的方式12.2 国际商事协议争端解决的适用法律13. 国际商事协议的效力与履行13.1 国际商事协议的效力13.2 国际商事协议的履行14. 国际商事协议的终止与违约责任14.1 国际商事协议的终止14.2 国际商事协议的违约责任第一部分:合同如下:第一条协议定义与分类1.1 协议的定义本协议是指双方当事人在平等、自愿、公平、诚实信用的原则基础上,通过协商一致所达成的具有法律约束力的协议。

1.2 协议的分类本协议分为书面协议和口头协议。

书面协议是指双方当事人以书面形式订立的协议;口头协议是指双方当事人以口头形式订立的协议。

第二条协议的当事人2.1 当事人的资格本协议的当事人应当具有完全民事行为能力和民事权利能力,且无民事行为限制。

2.2 当事人的能力本协议的当事人应当具备独立承担民事责任的能力,包括但不限于财产责任、违约责任等。

第三条协议的订立3.1 订立的方式本协议的订立方式包括要约和承诺。

国际商法合同法英文版

国际商法合同法英文版

The applicability of the CISG
Three conditions for CISG to apply: a. The contract is for the commercial sale of goods. (so sale of service contract excluded.) b. It is between parties whose places of business are in different countries. ( not nationality or citizenship) c. The place of business are located in countries that have ratified the convention.
Sales excluded from CISG
1. Consumer goods sold for personal, family or household use. 2. Goods bought at auction. 3. Stocks, securities, negotiable instruments or money. 4. Ships, vessels, or aircraft. 5. Electricity. 6. Assembly contracts for the supply of goods to be manufactured or
c. case law v. statuary law (ases and Criminal cases (民事案件
与刑事案件)
Civil cases may include suits for breach of contract (违约)or tort (侵权) cases, such as suits for personal injuries. Typically, they involve a request for damages of the wrongdoer. Criminal cases involve a representative of government attempting to prove the wrong committed against society and seeking to have the wrongdoer punished by the court system.

国际商法课件:合同法之四

国际商法课件:合同法之四

违约责任
❖ 3)《国际商事合同通则》和《联合国国际货 物销售合同公约》:采取无过错责任原则
❖ 4)中国法以严格责任为一般归责原则,同时 肯定过错责任原则调整的范围
❖ 违约的时间界限:英美法和中国法只要期满 未履行则构成违约;大陆法在合同没有规定 履行期限时要向债务人催告之后,才使其承 担违约责任。
违约责任
❖ 3)损害赔偿的范围及限制 ❖ 大陆法:赔偿范围包括实际损失、可得利益损失,
损失赔偿限制在债务人在订立契约时所预见的损害, 赔偿应扣除因免除义务所节省的支出或劳力移作他 用取得的利益。 ❖ 英美法:受损一方在经济上能处于合同得到履行时 同等的地位,赔偿的损失是违约自然引发的、订立 合同时当事人对违约可能产生后果能合理地预见到 的、一方违约时受损一方有义务采取一切合理措施 以减轻由违约造成的损失。
❖ 我国现行立法关于约定违约金与法定损害赔偿的规定,实际 上承认了优先适用违约金条款的原则。因此,本案中原告只 能根据购销合同中的有关违约金条款的规定,要求被告支付 违约金10万元,而不能再另行要求被告承担4万元的赔偿损 失,除非原告的实际损失额高于约定的违约金才能要求司法 机关予以增加差额部分。另一方面,我国合同法上确定的约 定违约金是补偿性违约金而非惩罚性违约金。
❖ 分析:待定变成已定货款,T电告对方后,变 成货物价格已定;当T收到80万元货款时,说 明合同已按T所定价格成立,并得到履行,大 米所有权已转移给买方H。此时合同不能变 更。T应执行该合同不得变更价款。对于迟延 提货,应由提货方支付相应仓储费。
❖ 某年1月15日,M省粮油食品公司与N市粮油贸易中 心签订一份总量为2000吨的大米购销合同。合同规 定,3月中旬交货。M省粮油食品公司于3月1日将 2000吨大米运至N市。N市粮油贸易中心以供方提 前交货为由,不予验货,拒绝付款。M省粮油食品 公司只有等待时日。不巧,3月2日竟然下起绵绵春 雨,空气湿度最小为85%,最大达到了98%。2000 吨大米的质量受到严重威胁。M省粮油食品公司一 边采取应急措施,一边派人前去向N市粮油贸易中 心说明情况,要求提前交货,再次遭到对方拒绝。

F4 CORPORATE AND BUSINESS__LAW(ENGLISH)-19

F4 CORPORATE AND BUSINESS__LAW(ENGLISH)-19

Chapter 4 Formation of contract Case Summaries
1. Fisher v Bell 2. Pharmaceutical Society of Great Britain v Boots Cash Chemists 3. Partridge v Crittenden 4. Carlill v Carbolic Smoke Ball Co. 5. Hyde v Wrench 6. Stevenson v Mclean 7. Ramsgate Victoria Hotel v Montefiore 8. Routledge v Grant
Slide 115
Chapter 4 Formation of contract Case Summaries
27.Central London Property Trust v High Trees House 28.Dunlop v Selfridge 29.Beswick v Beswick 30.Balfour v Balfour 31.Merritt v Merritt 32.Simpkins v Pays 33.Edwards v Skyways 34.Jones v Vernons Pools
7
8
Slide 111
Chapter 4 Formation of contract Chapter summary
Section 9 Topic Doctrine of privity Summary As a general rule only parties to a contract may rely upon or enforce that contract. There are numerous common law and statutory exceptions. Intention to create legal relations is subject to the rules of presumption in the absence of expression. Any of the rules can be expressly rebutted.

《国际商法》第4章:合同法

《国际商法》第4章:合同法

June 2021
2、Our destiny offers not only the cup of despair, but the chalice of opportunity. (Richard Nixon, American President )命运给予我们的不是失望之酒,而是机会之杯。二〇二一年六月十七日2021年6月17日星期四
➢4.2.2当事人的订约能力
➢当事人的订约能力是指订立合同的当事人 应当具有相应的权利能力和行为能力。
➢1.自然人的订约能力
➢各国法中自然人的订约能力取决于他的民 事行为能力 。
➢ (1)大陆法
➢德国法将自然人分为无行为能力与限制行 为能力两种情况。
➢《德国民法典》第104条规定,凡有下列 情况之一者,即属于无行为能力的人:
➢撤销要约是指要约已经送达受要约人之 后,即要约已经生效之后,要约人消灭 要约效力的行为。
➢在大陆法中,允许撤回要约,即使是注 明“不可撤销”的要约也可以撤回,但一 般不允许撤销要约。撤回要约的通知必 须先于要约或与要约同时到达受要约人 。
➢在英美法中,不但允许撤回要约,而且 原则上允许撤销要约。
➢1)未成年人
➢英美法均规定,未成年人原则上没有订立 合同的能力。未成年人对其订立的合同, 在其成年后,可以予以追认,也可以要求 撤销,但有些合同例外。
➢2)精神病人 ➢精神病人在被宣告精神错乱以后订立的合
同,一律无效。
➢对于在被宣告精神错乱前所签订的合同, 可以要求予以撤销。
➢间歇性的精神病人,一旦精神恢复正常, 可以追认或否认其以前订立的合同。
3、Patience is bitter, but its fruit is sweet. (Jean Jacques Rousseau , French thinker)忍耐是痛苦的,但它的果实是甜蜜的。10:516.17.202110:516.17.202110:5110:51:196.17.202110:516.17.2021

《英美契约法》(双语)资料2022

《英美契约法》(双语)资料2022

I.Explain the following terms.1. contractA valid contract is an agreement, formed by the mutual consent of the two parties.A contract may be definfed as an agreement, which legally binds the parties. The underline theory is that a contract is the outcome of consenting minds. However,parties are judged by what they have said, written or done, rather than by what they are actually think.An agreement which the law will recognize and enforce which , apart from other important applications, forms the basis of most business relationships and transactions.2. condition termA condition is a core element of a contract. It is fundamental to the existence of the contract.Breach of a condition entitles the injured party to:(i) repudiate the contract (ie. treat contract as discharged); and(ii)claim rescission which would enable him to receive property transferred; and (iii)claim damages: Poussard v. Spiers.3.Exclusion clauseExclusion clause are clauses which purport to exclude liability altogether, or to restrict it by limiting damages or by imposing other onerous conditions.4.Consideration(a)It is the element of value in the agreement.(b)Both parties must bring something of value to the agreement.(c)E.g. A sells B a car for £1. A and B are both providing value.(d) ‘An act or forbearance of one party or the promise thereof is the price for which the promise of the other is bought and the promise thus given for value is enforceable’: Dunlop v Selfridge.5.Promissory estoppelIf the doctrine of promissory estoppel applies then the creditor may be estopped from suing for the balance of the original debt.The doctrine may apply if:(a) the creditor agrees to accept part payment in full and final settlement of a debt; and(b) the creditor intends that the debtor will rely on the agreement; and(c) the debtor does act in reliance on the agreement (it is not sufficient merely to pay the lower amount).6.Warranty termA warranty is "collateral to the main purpose of the contract". It is not essential. Breach of a warranty entitles the injured party to claim damages only: Bettini v. Gye.7. The standard form contractMass production and nationalization have led to the standard form contract.The standard form contract is a document prepared by many large organizations setting out the terms which they contract with their customers. The individual mustusually take it or leave it. For example, a customer has to accept his supply of electricity on the electricity board's terms - he is not likely to succeed in negotiating special terms, unless he represents a large consumer such as a factory.8. offerAn offer is a definite promise to be bound on specific terms. An offer may be defined as follows:An express or implied statement of the terms on which the maker is prepared to be contractually bound if it is accepted unconditionally. The offer may be made to one person, to a class of persons or to the world at large, and only the person or one of the persons to whom it is made may accept it.A definite offer does not have to be made to a particular person. It may be made to a class of persons or to the world at large.9.Past considerationPast consideration does not actually count as valid consideration, therefore no agreement resting on past consideration is legally enforceable. Normally consideration is provided either at the time of the creation of a contract or at a later date.10.express termAn express term is one which has been clearly stated orally or in writing, or may be by reference at the time of contract.11.executory considerationExecutory consideration is the promise to perform an action at some future time. One party to a contractual agreement may pay money to another on the understanding that the latter will perform some act for them in the future. Or alternatively they might provide an immediate benefit for the other party on the understanding that the latter will provide a reciprocal benefit in the future. Contracts may also be made solely on the basis of an exchange of promises as to future action, without the need for any present action. In such circumstances the mere promises provide mutual/reciprocal consideration and any such agreement entered into is legally binding and enforceable in a court of law. Such a contract is known as an executory contract.12.Liquidated damagesLiquidated damages are such a fixed or ascertainable sum agreed by the parties at the time of contracting, payable in the event of a breach. They must be a genuine pre-estimate of loss. Any such sum which is not a genuine pre-estimate, but is intended to be an onerous punishment, is termed a penalty clause.13. Acceptance(a) An unconditional assent to all the terms of the offer: Neale v Merrett(b) It is important to identify a clear offer, and unconditional acceptance. Negotiations may constitute a series of counter offers, each party trying to impose their standard terms on the contract: "the battle of the forms." Hence if faced with this type of question ensure that you identify what is happening at each stage of the negotiations until you have a clear offer and acceptance.(c) Acceptance may only be made by authorised person: (compare revocation).(d) Must be made whilst the offer is still open ie:(i) before revocation(ii) before any time limit specified has expired(iii) before the offeree's death14.Innominate termInnominate term is a term which cannot be categorised at the start of the contract. The court will look at the effect of the breach: Hong Kong Fir Shipping Company v Kawasaki Kisen Kaisha.15.offerAn offer is a definite promise to be bound on specific terms. An offer may be defined as follows:An express or implied statement of the terms on which the maker is prepared to be contractually bound if it is accepted unconditionally. The offer may be made to one person, to a class of persons or to the world at large, and only the person or one of the persons to whom it is made may accept it.A definite offer does not have to be made to a particular person. It may be made to a class of persons or to the world at large.III. Answer the following questions.1.State and explain the ways to terminate an Offer.(a) Rejection: of an offer or refusal to accept.(b) Counter offer: Hyde v Wrench.A counter offer is simply a new offer. (3 marks)(c) Conditional acceptance: Neale v Merrett. Contrast requests for information : Stevenson v McLean.A conditional acceptance is an attempt to introduce new terms into the offer and as such cannot be an acceptance.(d) Lapse of time: (an express or implied period) will terminate an offer: Ramsgate Hotel v Montefiore. (3 marks)(e) Revocation of an offer:(i) is effective any time before acceptance occurs Routledge v Grant;(ii) as long as it is actually communicated: Byrne v Van Tienhoven;(iii) can be communicated via a reliable third party: Dickinson v Dodds;(f)Death. (4 marks)2.Explain the implied term.An implied term is one which the court will allow because:(a) It has to as the term is statutory (e.g. Sale of Goods Act 1979 as amended); This states that it will be a condition of the contract that (inter alia); (3 marks)(i) the seller had title to the goods,(ii)the goods are of satisfactory quality and fit for purpose,(iii)the goods correspond with their description. (3 marks)(b) It is necessary for the efficacy of the particular contract: The Moorcock; or(c) It is customary through trade usage. Terms implied by custom cannot override the express terms of an agreement.Also where the parties have had previous dealing on the basis of an exclusion clause, that clause may be included in later contracts. (4 marks)3. Explain the essentials of a contract.The three essential elements of a contract. Are offer and acceptance, consideration and intention to enter inter into legal relations.The courts will usually look for evidence of three essential elements in any contract:(1)There must be an agreement usually made by offer and acceptance. (3 marks)(2) The parties must have an intention to create legal relations between themselves.(3 marks)(3)There must be a bargain by which the obligations assumed by one party are supported by consideration (value) given by the other.We will explore these three essential elements in the next two chapters. (4 marks)4. Exceptions to the communication rule(a) Where the need for communication is waived: Carlill v Carbolic Smoke Ball Co. (Be careful this does not negate the need for acceptance itself.) (3 marks)(b) Where the postal rule applies acceptance will occur at the moment of posting: Adams v Lindsell, Household Fire Insurance v Grant. (3 marks)Conditions:(i) Letter must be properly addressed and stamped;(ii) put into the post in the normal way; (2 marks)(iii) the postal rule will not have been excluded i.e. it must be in contemplation of both parties that acceptance will take place by post. (2 marks)5. Explain the rules about the formalities of contract.Certain contracts have to be made in a formal way:(1) Some contracts must be in writing:(a) consumer credit agreements(2 marks)(b) transfer of company shares(c) money lending contracts(2 marks)(d) contract for the sale or other disposition of land e.g. leases: LP(MP)A'89(2) Some contracts do not have to be in writing. But written evidence must be available to enable an action to be brought. eg. Contract of guarantee. (2 marks)(3) Certain contracts must be executed as a Deed (and are called speciality contracts):(a) Gratuitous promises: Deeds of Covenant(b) Transfers of a legal estate in land(2 marks)(4) Contracts of employment need not be in writing or evidenced in writing but the main details must be outlined. (2 marks)6. Explain the validity factors of a contract.Even if these essential elements can be shown, a contract may not necessarily be valid or may only be partially valid. The validity of a contract may also be affected by any of the following factors.(1)Capacity. Some persons have only restricted capacity to enter into contracts.(2) Form. Some contracts must be made in a particular form. (2 marks)Content. In general the parties may enter into a contract on whatever terms they choose. (2 marks)(3)Some terms which the parties do not express may be implied, and some terms which the parties do express are override by statutory rules. (2 marks)(4)Genuine consent. A mistake or misrepresentation made by one party may affect the validity of a contract. Parties may be induced to enter into a contract by undue influence or duress. (2 marks)(5) Legality. The courts will not enforce a contract which is deemed to be illegal or contrary to public policy. (2 marks)7.State and explain the rules about invitations to treat.Offers must be distinguished from invitations to treat.(a) This is inviting someone to make an offer or commence negotiations.(b) It cannot be accepted. (2 marks)(c) Examples of invitations to treat:(i) items displayed on shelves: Pharmaceutical Society of G.B. v Boots Cash Chemists. (3 marks)(ii) items in shop windows: Fisher v Bell.(iii) usually adverts in newspapers: Partridge v Crittenden.Note however offers made to the whole world: Carlill v Carbolic Smoke Ball Co. (iv) auction notices. (3 marks)(v) prospectuses.(vi)mail order catalogues.(2 marks)8. Explain the doctrine of consideration.(1)Need not be adequate, but must be sufficient: Chappell v Nestle. (2 marks)(2)The law defines what will be insufficient. (2 marks)(a)Performance of an existing legal or contractual obligation is insufficient consideration to support a promise of additional reward Stilk v Myrick unless:(i) More than existing duties are performed Hartley v Ponsonby; or(ii)Both parties derive a benefit, provided no duress or fraud Williams v Roffey Bros & Nicholls (Contractors) Ltd. (3 marks)(b)Partial performance of an estimating legal or contractual obligation is insufficient consideration to support a waive of contractual or legal rights. (3 marks)9. Explain the form of a contract.As a general rule, a contract may be made in any form. It may be written, or oral, or inferred from the conduct of the parties. For example, a customer in a self-service shop may take his selected goods to the cash desk, pay for them and walk out without saying a word. (3 marks)Writing is not usually necessary except in the following circumstances.(1)Some contracts must be by deed. (3 marks)(2) Some contracts must be in writing. (2marks)(3)Some contracts must be evidenced in writing. (2marks)。

商法 Chapter 4

商法 Chapter 4

ANSWERS TO PROBLEMS1.In May, Patricia Allen left her car on the shoulder of a road in the city of Erehwon after the car stopped running. A member ofthe Erewhon police dept. came upon the car later that day and placed on it a sticker which stated that unless the car were moved, it would be towed. After a week the car had not been removed, and the police department authorized Baldwin Auto Wrecking Co. to tow it away and store it on its property. Allen was told by a friend that her car was at Baldwin's. Allen asked Baldwin to allow her to take possession of her car, but Baldwin refused to relinquish the car until the $70 towing fee was paid.Allen could not afford to pay the fee, and the car remained at Baldwin's for six weeks. At that time, Baldwin requested the police department for a permit to dispose of the automobile. After the police department tried unsuccessfully to telephone Allen, the department issued the permit. In late July, Baldwin destroyed the automobile. Allen brings an action against the city and Baldwin for damages for loss of the vehicle, arguing that she was denied due process. Decision?Answer: Due Process. Judgment for Allen. These facts raise the question of due process under the Fourteenth Amendment. As the Appellate Court of Illinois stated in Valdez v. City of Ottawa, 434 N.E. 2d 1192 (1982) upon which this problem is based:Due process is not an inflexible standard and does not require a trial-type hearing in every conceivable case of government impairment of private interest. Nonetheless, due process requires that, at a minimum, . . .deprivation of life, liberty or property by adjudication be preceded by notice and an opportunity for hearing appropriate to the nature of the case. The notice must be reasonably calculated to convey the necessaryinformation and to afford the interested parties a reasonable time for a hearing. Those parties must be given notice and an opportunity before the deprivation takes place, unless there exists extraordinary circumstances requiring immediate action to protect a valid governmental interest. Furthermore, there is no question that ownership of an automobile and continued access to it is a property interest within the protection of theFourteenth Amendment, and whether the deprivation will be permanent or temporary is immaterial. Towing a car without prior notice [subject to exceptions noted later] is a violation of due process rights.On these facts it seems clear that the auto posed no substantial danger to traffic when it was parked on theshoulder. This conclusion is supported by the fact that the police saw no need to disturb the car for at least one week. In the absence of an emergency the city violated Allen's constitutional rights when it seized, towed and refused to relinquish the auto before payment of a towing fee. Moreover, the city failed to provide Allen with proper notice before towing; under these facts, notice by certified or registered mail would have beenappropriate. Even if pre-towing notice had not been required, due process demands prompt notice and an opportunity to a hearing before the government makes any disposition of the vehicle. Additionally, the owner must have an opportunity to contest the seizure and tow before she can be required to pay any charges or fees.See Stypmann v.City & County of San Francisco, 557 F. 2d 1338 (1977). Accordingly, the city and Baldwin violated Allen's right to due process when they destroyed her automobile without any notice.2.In 1967, large oil reserves were discovered in the Prudhoe Bay area of Alaska. As a result, State revenues increased from$124 million in 1969 to $3.7 billion in 1981. In 1980, the State legislature enacted a dividend program that would distribute annually a portion of these earnings to the State's adult residents. Under the plan, each citizen eighteen years of age or older receives one unit for each year of residency subsequent to 1959, the year Alaska became a State. Crawford, a resident since 1978, brings suit challenging the dividend distribution plan as violative of the equal protection guarantee. Did the dividend program violate equal protection? Explain.Answer: Equal Protection. Decision for Crawford. When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Generally, a law will survive the scrutiny if the distinction it makes rationally furthers a legitimate state purpose. The stateadvanced three purposes justifying the distinctions made by the dividend program; (a) creation of a financial incentive for individuals to establish and maintain residence in Alaska; (b) encouragement of prudent management of the earnings; and (c) apportionment of benefits in recognition of undefined "contributions of various kinds, both tangible and intangible, which residents have made during their years of residency."The U.S. Supreme Court held that none of these purposes rationally furthered a legitimate state purpose. Zobel v.Williams, 457 U.S. 55 (1982). The court determined that the first two purposes were not rationally related to the distinctions the statute makes between newer residents and those who have been in the state since 1959. The last objective–to reward citizens for past contributions–was not held a legitimate state purpose. As the court stated:If the states can make the amount of a cash dividend depend on length of residence, what would preclude varying universitytuition on a sliding scale based on years of residence–or even limiting access to finite public facilities, eligibility for studentloans, for civil service jobs, or for government contracts by length of domicile? Could States impose different taxes based onlength of residence? Alaska's reasoning could open the door to state apportionment of other rights, benefits and servicesaccording to length of residency. It would permit the states to divide citizens into expanding numbers of permanent classes.Such a result would be clearly impossible.3.Maryland enacted a statute prohibiting any producer or refiner of petroleum products from operating retail service stationswithin the State. The statute also required that any producer or refiner discontinue operating its company-owned retail service stations. Approximately 3,800 retail service stations in Maryland sell more than twenty different brands of gasoline. However, no petroleum products are produced or refined in Maryland; and only 5 percent of the total number of retailers are operated by a producer or refiner. Maryland enacted the statute because a survey conducted by the State comptroller indicated that gasoline stations operated by producers or refiners had received preferential treatment during periods of gasoline shortage.Seven major producers and refiners bring an action challenging the statute on the ground that it discriminated against interstate commerce in violation of the commerce clause of the United States Constitution. Are they correct?Explain. Answer: State Regulation of Commerce. The Maryland statute is constitutional. In Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978) the U.S. Supreme Court stated:Plainly, the Maryland statute does not discriminate against interstate goods, nor does it favor local producers and refiners. Since Maryland's entire gasoline supply flows in interstate commerce and since there are no local producers or refiners, such claims of disparate treatment between interstate and local commerce would be without merit. Appellants, however, focus on the retail market, arguing that the effect of the statute is to protect in-state independent dealers from out-of-state competition. They contend that the divestiture provisions "createa protected enclave for Maryland independent dealers. . ." As support for this proposition, they rely on the factthat the burden of the divestiture requirements falls solely on interstate companies. But this fact does not lead, either logically or practically, to a conclusion that the state is discriminating against retail interstate commerce.As the record shows, there are several major interstate marketers of petroleum that own and operate their own retail gasoline stations. These interstate dealers, who compete directly with the Maryland independent dealers, are not affected by the Act because they do not refine or produce gasoline. In fact, the Act creates no barriers whatsoever against interstate independent dealers; it does not prohibit the flow of interstate goods, place added costs upon them, or distinguish between in-state and out-of-state companies in the retail market. The absence of any of these factors fully distinguishes this case from those in which the state is found to have discriminated against interstate commerce. The fact that the burden of a state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce.4.The Federal Aviation Act of 1958 provides that “The United States of America is declared to possess and exercise completeand exclusive national sovereignty in the airspace of the United States.” The city of Orion adopted an ordinance that makes it unlawful for jet aircraft to take off from its airport between 11:00 P.M. of one day and 7:00 A.M. of the next day. Jordan Airlines, Inc., is adversely affected by this ordinance and brings suit challenging it under the supremacy clause of the United States Constitution as conflicting with the Federal Aviation Act or preempted by it. Is the ordinance valid? Explain. Answer: Federal Supremacy and Preemption. Decision for Jordan Airlines. The Federal Aviation Act (FAA) of 1958, as amended by the Noise Control Act of 1972, preempts the field. Any control of noise pollution must be consistent with the "highest degree of safety." The FAA requires a delicate balance between safety and efficiency, and the protection of the persons on the ground. The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled. As the U.S. Supreme Court stated in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973) upon which this problem is based:If we were to uphold the Burbank ordinance and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of the FAA in controlling air traffic flow. The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded.Moreover, as the court had stated in the earlier decision of Northwest Airlines, Inc. v. Minnesota:Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls.Thus, the pervasive nature of the scheme of federal regulations of aircraft noise demonstrates that federal law has pre-empted the field.5.The Public Service Commission of State X issued a regulation completely banning all advertising that “promotes the use ofelectricity” by any elect ric utility company in State X. The commission issued the order to conserve energy. Central Electric Corporation of State X challenges the order in the State courts, arguing that the commission has restrained commercial speech in violation of the First Amendment. Was their freedom of speech unconstitutionally infringed? Explain. Answer: Commercial Speech. Decision for Central Electric Corporation. This problem is based upon Central Hudson Gas and Electric Corporation v. Public Service Commission, 447 U.S. 557 (1980) in which the Court concisely stated the test for commercial speech cases:In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.On these facts the court found the promotional advertising to be commercial speech even though the electric utility had a monopoly in electricity since it nonetheless competed with fuel oil and natural gas. It was conceded by the Commission that the advertising was neither inaccurate nor relating to unlawful activities. The Court agreed that the governmental interest of conservation was substantial and found that this interest was directly advanced by the prohibition upon advertising. However, the court concluded that the regulation was more extensive than was necessary in that it reached all promotional advertising, regardless of its impact upon overall energy use:The commission also has not demonstrated that its interest in conservation cannot be protected adequately by more limited regulation of appellant's commercial expression. To further its policy of conservation, theCommission could attempt to restrict the format and content of Central Hudson's advertising. It might, for example, require that the advertisements include information about the relative efficiency and expense of the offered service, both under current conditions and for the foreseeable future. In the absence of a showing that more limited speech regulation would be ineffective, we cannot approve the complete suppression of Central Hudson's advertising.6.E—Z—Rest Motel is a motel with 216 rooms located in the center of a large city in State Y. It is readily accessible from twointerstate highways and three major State highways. The motel solicits patronage from outside of State Y through various national advertising media, including magazines of national circulation. It accepts convention trade from outside State Y, and approximately 75 percent of its registered guests are from out of State Y. An action under the Federal Civil Rights Act of 1964 has been brought against E—Z—Rest Motel alleging that the motel discriminates on the basis of race and color. The motel contends that the statute cannot be applied to it because it is not engaged in interstate commerce. Can the Federal government regulate this activity under the interstate commerce clause? Why?Answer: Federal Commerce Power. Yes, the Federal government can regulate this activity. Decision against the E-Z Rest Motel. This problem is based upon Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) in which the court discussed the legislative history of the Civil Rights Act of 1964:While the Act as adopted carried no congressional findings the record of its passage through each house is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce . . . This testimony included the fact that our people have become increasingly mobile with millions of people of all races traveling from state to state; that Negroes in particular have been the subject of discrimination in transientaccommodations, having to travel great distances to secure the same; that often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight, . . . and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself "dramatic testimony to the difficulties" Negroes encounter in travel, . . . This testimony indicated a qualitative as well as quantitative effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler's pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community . . .The court relied upon these facts and the motel's operation to hold that the motel is subject to Congress because 'if it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze' . . . Thus the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the states of origin and destination, which might have a substantial and harmful effect upon that commerce. One need only examine the evidence which we havediscussed above to see that Congress may–as it has–prohibit racial discrimination by motels serving travelers, however 'local' their operations may appear . . ." Congress may act under the Commerce Clause when theactivity sought to be regulated is "commerce which concerns more states than one" and has a real and substantial relation to the national interest.7.State Z enacted a Private Pension Benefits Protection Act requiring private employers with 100 or more employees to pay apension funding charge upon terminating a pension plan or closing an office in State Z. Acme Steel Company closed its offices in State Z, whereupon the State assessed the company $185,000 under the vesting provisions of the act. Acme challenged the constitutionality of the act under the contract clause (Article I, Section 10) of the U.S. Constitution. Was the act constitutional?Explain.Answer: Contract Clause. Decision for Acme. The statute is unconstitutional under the contract clause. As the U.S. Supreme Court stated in Allied Structural Steel Company v. Spannus, 438 U.S. 234 (1978) upon which this problem is based:Entering a field it had never before sought to regulate, the State Z Legislature grossly distorted the company's existing contractual relationships with its employees by superimposing retroactive obligations upon the company substantially beyond the terms of its employment contracts. And that burden was imposed upon the company only because it closed its office in the state.This State Z law simply does not possess the attributes of those state laws that in the past have survived challenge under the Contract Clause of the Constitution. The law was not even purportedly enacted to deal with a broad, generalized economic or social problem. It did not operate in an area already subject to state regulation at the time the company's contractual obligations were originally undertaken, but invaded an area never before subject to regulation by the state. It did not effect simply a temporary alteration of the contractual relationships of those within its coverage, but worked a severe, permanent, and immediate change in those relationships–irrevocably and retroactively. And its narrow aim was leveled not at every State Z employer, not even at every State Z employer who left the state, but only at those who had in the past been sufficiently enlightened as voluntarily to agree to establish pension plans for their employees.8. A State statute empowered public school principals to suspend students for up to ten days without any notice or hearing. Astudent who was suspended for ten days challenges the constitutionality of his suspension on the grounds that he was denied due process. Was due process denied? ExplainAnswer: Due Process. Yes, due process was denied. Decision for the student. The plaintiff student's denial of an evidentiary hearing violated the Due Process clause of the Fourteenth Amendment according the U.S. Supreme Court decision in Goss. v. Lopez, 419 U.S. 565 (1975). At the very minimum students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing. The Due Process Clause does not require that students be afforded the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. It does, however, require that the student be given notice and an informal hearingpermitting him to give his version of the events. Longer suspensions and expulsions may require more formality, and procedural due process laws within each state cover this process.9.Iowa enacted a statute prohibiting the use of sixty-five-foot double trailer truck combinations. All of the other midwestern andwestern States permit such trucks to be used on their roads. Consolidated Freightways is adversely affected by this statute and brings suit against Iowa, alleging that the statute violates the commerce clause. Decision?Answer: Commerce Clause. Decision for Consolidated Freightways. The U.S. Supreme Court said in Kassel v.Consolidated Freightways Corporation, 450 U.S. 662 (1981) that because Iowa imposed this burden without any significant countervailing safety interest, its statute violated the commerce clause. The court said that the statute seemed to have been designed not to ban dangerous trucks, because it included a "border cities exemption", but rather to discourage interstate truck traffic. A state cannot constitutionally promote its own parochial interest by requiring safe vehicles to detour around it. Note, however, that this was a plurality decision by Justice Powelland three other justices. There were two other justices who had a concurring opinion and there were three justices who dissented. This provides subsequent litigants with arguments upon which to present their case.10.Metropolitan Edison Company is a privately owned and operated Pennsylvania corporation subject to extensive regulation bythe Pennsylvania Public Utility Commission. Under a provision of its general tariff filed with the commission, Edison had the right to discontinue electric service to any customer on reasonable notice of nonpayment of bills. Catherine Jackson had been receiving electricity from Metropolitan Edison when her account was terminated in 1970 because of her delinquency in payments. Edison later opened a new account for her residence in the name of James Dodson, another occupant of Jackson's residence. In August 1971, Dodson moved away and no further payments were made to the account. Finally, in October 1971, Edison disconnected Jackson's service without any prior notice. Jackson brought suit claiming that her electric service could not be terminated without notice and a hearing. She further argued that such action, allowed by a provision of Edison's tariff filed with the commission, constituted “state action” depr iving her of property in violation of the Fourteenth Amendment's guarantee of due process of law. Should Edison’s actions be considered state action? Explain.Answer: Due Process. No, it is not state action. Decision for Metropolitan Edison Company. In Jackson v.Metropolitan Edison Co., 419 U.S. 345 (1974) the U.S. Supreme Court stated that deprivations of property without due process by the state are prohibited by the Fourteenth Amendment, but private actions depriving individuals of property are immune from the due process requirement. The termination of Jackson's service by Edison was a private action, immune from the Fourteenth Amendment's due process requirement. Even though Edison is closely regulated by the commission and enjoys at least a partial monopoly, it is still a privately owned utility.Jackson's service was terminated in a manner the commission found permissible under state law.11.Miss Horowitz was admitted as an advanced medical student at the University of Missouri-Kansas City. During her first year,several faculty members expressed dissatisfaction with Miss Horowitz's clinical performance, noting that it was below that of her peers, that she was erratic in attendance at her clinical sessions, and that she lacked a critical concern for personal hygiene. Upon the recommendation of the school's Council on Evaluation, she was advanced to her second and final year on a probationary basis. After subsequent unfavorable reviews during her second year and a negative evaluation of herperformance by seven practicing physicians, the council recommended that Miss Horowitz be dismissed from the school for her failure to meet academic standards. The decision was approved by the dean and later affirmed by the provost after an appeal by Miss Horowitz. She brought suit against the school's Board of Curators, claiming that her dismissal violated her right to procedural due process under the Fourteenth Amendment and deprived her of “liberty” by substantially impairing her opportunities to continue her medical education or to return to employment in a medically related field. The trial court found for the defendant, but the appellate court reversed. The Board of Curators appealed. Is her claim correct? Explain? Answer: Procedural Due Process. No. Judgment for the Board of Curators. Oral or written notice and an opportunity for the student to present her side of the story at a "hearing" is only required for dismissals or suspensions based on disciplinary grounds. In contrast, a dismissal on academic ground demands a less stringent procedure–merely an "informal give and take" between the student and administrative body which provides the student "the opportunity to characterize his conduct and put it in what he deems the proper context." Since the Council dismissed Miss Horowitz for failure to meet the school's academic standards, and not for disciplinary reasons, a hearing was not required. In this case the faculty fully informed Miss Horowitz of her unsatisfactory performance ratings and the dangers they posed to her timely graduation and continued enrollment.Furthermore, the Council went beyond the constitutionally required procedural due process by affording her the opportunity to be examined by independent physicians before reaching a final decision. Because the Council more than satisfied the constitutional requirement of procedural due process, its decision is upheld. Board of Curators of the University of Missouri v. HorowitzpuServe Incorporated (“CompuServe”) is one of the major national commer cial online services. It operates a computercommunication service through a proprietary nationwide computer network. In addition to allowing access to the content available on its own network, CompuServe also provides its subscribers with a link to the much larger resources of the Internet. This allows its subscribers to send and receive electronic messages, known as “e-mail,” by the Internet. Cyber Promotions, Inc. is in the business of sending unsolicited e-mail advertisements on behalf of itself and its clients to hundreds of thousands of Internet users, many of whom are CompuServe subscribers. CompuServe has notified Cyber Promotions that it is prohibited from using CompuServe’s computer equipment to process and store the unsolicited e-mail and has requested that Cyber Promotions terminate the practice. Instead, Cyber Promotions has sent an increasing volume of e-mail solicitations to CompuServe subscribers. CompuServe has attempted to employ technological means to block the flow of Cyber Promotions e-mail transmissions, but to no avail. CompuServe seeks an injunction preventing Cyber Promotions from sending unsolicited advertisements to CompuServe subscribers. In response, Cyber Promotions argues that it has the right to continue to send unsolicited commercial e-mail to CompuServe’s computer systems under the First Amendment to the United StatesConstitution. Decision?。

国际商法课件(_English_)_4

国际商法课件(_English_)_4

Requirements of an Offer ① Contractual intention. It is an invitation to treat, which is used to invite others to make offer and lack of the intention to create a binding obligation. Generally, display of goods for sale, an advertisement in a newspaper, posted quotation(寄送的报价单), price list, catalogue(商品目录), auction sales(拍 卖公告) and tenders(招标公告) are all an invitation to treat. ② Definiteness. ③ Communication of offer to of Offer: 要约 Offeror: 要约人 Offeree: 受要约人,承诺人 Acceptance: 接受,承诺 Counteroffer: 反要约 Invitation to treat/Invitation offer: 要约邀请 Withdrawal of offer: 要约的撤回 Revocation of offer: 要约的撤销
③ An acceptance must be made within the period of validity. ④ An acceptance should match the terms of the offer exactly and unequivocally. ⑤ Mostly, silence and inactivity cannot be construed/explained as acceptance.

2024国际商法:第四章合同要览

2024国际商法:第四章合同要览

2024国际商法:第四章合同要览本合同目录一览第一条合同定义与范围1.1 合同定义1.2 合同范围第二条合同当事人2.1 当事人身份2.2 当事人权利与义务第三条合同标的3.1 标的内容3.2 标的质量第四条合同价格与支付方式4.1 价格确定4.2 支付方式第五条合同履行5.1 履行期限5.2 履行地点与方式第六条合同变更与解除6.1 变更条件6.2 解除条件第七条违约责任7.1 违约行为7.2 违约责任承担第八条争议解决8.1 争议类型8.2 解决方式第九条合同的生效、终止与解除9.1 合同生效条件9.2 合同终止条件9.3 合同解除条件第十条保密条款10.1 保密内容10.2 保密期限第十一条知识产权保护11.1 知识产权归属11.2 侵权责任第十二条不可抗力12.1 不可抗力事件12.2 不可抗力后果第十三条法律适用与争议解决13.1 法律适用13.2 争议解决第十四条其他条款14.1 附加条款14.2 附录第一部分:合同如下:第一条合同定义与范围1.1 合同定义(此处填写对合同定义的具体描述,如合同的类型、目的等)1.2 合同范围(此处填写合同适用的范围,包括地域、业务领域等)第二条合同当事人2.1 当事人身份(此处填写合同当事人的具体身份信息,如公司名称、法人代表等)2.2 当事人权利与义务(此处填写各当事人的权利和义务,具体描述各项权利和义务的内容)第三条合同标的3.1 标的内容(此处填写合同标的具体内容,如商品、服务、项目等)3.2 标的质量(此处填写标的的质量标准和要求,包括质量保证、检验方法等)第四条合同价格与支付方式4.1 价格确定(此处填写价格确定的依据和方法,如固定价格、变动价格等)4.2 支付方式(此处填写支付方式的具体描述,如预付款、分期付款等)第五条合同履行5.1 履行期限(此处填写合同履行的期限,如交货时间、服务完成时间等)5.2 履行地点与方式(此处填写合同履行的地点和方式,如交货地点、服务提供方式等)第六条合同变更与解除6.1 变更条件(此处填写合同变更的条件,如需要双方协商一致、发出书面通知等)6.2 解除条件(此处填写合同解除的条件,如违约行为、不可抗力事件等)第七条违约责任7.1 违约行为(此处填写违约行为的具体描述,如未能按期交货、提供的服务不符合质量要求等)7.2 违约责任承担(此处填写违约责任的具体承担方式,如违约金、赔偿损失等)第八条争议解决8.1 争议类型(此处填写可能出现的争议类型,如履行争议、合同解释争议等)8.2 解决方式(此处填写争议解决的方式,如协商解决、调解、仲裁或诉讼等)第九条合同的生效、终止与解除9.1 合同生效条件(此处填写合同生效的条件,如双方签字盖章、政府批准等)9.2 合同终止条件(此处填写合同终止的条件,如合同目的实现、一方违约等)9.3 合同解除条件(此处填写合同解除的条件,如不可抗力、双方协商一致等)第十条保密条款10.1 保密内容(此处填写需要保密的具体内容,如商业秘密、技术秘密等)10.2 保密期限(此处填写保密期限的具体时间,如合同履行完毕后五年等)第十一条知识产权保护11.1 知识产权归属(此处填写知识产权的归属规定,如双方约定或法律规定等)11.2 侵权责任(此处填写侵权责任的具体承担方式,如停止侵权、赔偿损失等)第十二条不可抗力12.1 不可抗力事件(此处填写不可抗力事件的类型,如自然灾害、社会事件等)12.2 不可抗力后果(此处填写不可抗力事件导致的后果,如合同履行延误、终止等)第十三条法律适用与争议解决13.1 法律适用(此处填写适用的法律,如国际商法、某一国家的国内法等)13.2 争议解决(此处填写争议解决的地点和机构,如仲裁委员会、法院等)第十四条其他条款14.1 附加条款(此处填写合同附加条款的内容,如双方的特殊约定等)14.2 附录(此处填写附录的具体内容,如技术规格、附件等)第二部分:其他补充性说明和解释说明一:附件列表:附件1:合同标的详细描述附件2:质量保证协议附件3:价格明细表附件4:支付时间表附件5:履行时间表附件6:保密协议附件7:知识产权保护协议附件8:不可抗力事件声明附件9:法律适用和争议解决协议附件10:合同变更和解除协议附件1的详细要求和说明:本附件应详细描述合同标的具体内容,包括规格、数量、质量标准、性能参数等。

《国际商法英文版》课件

《国际商法英文版》课件

Delivery and Payment
Methods and considerations for delivery and payment in global trade
Part 4 International Arbitration
1
Alternative Dispute Resolution
Exploring the role and benefits of international arbitration in resolving business disputes
2
Advantages and Disadvantages
Байду номын сангаас
Considering the pros and cons of choosing arbitration over litigation
3
Role of International Organizations
Examining the influence of international organizations in promoting and facilitating arbitration
Part 5 Intellectual Property Law
Topic Overview of IP Law Patents, Trademarks, and Copyrights Protection in International Business
Dispute Resolution
Description
An introduction to the basic concepts and principles of intellectual property law

Fundamentals of Contracts_国际商法(双语版)_[共9页]

Fundamentals of Contracts_国际商法(双语版)_[共9页]

国际商法(双语版)52Chapter 5Introduction to International Sales Contracts本章主要讲授关于国际货物销售合同的基本法律知识:合同的定义、合同的有效要件。

本部分还介绍了与国际货物销售合同相关的国际条约和国际贸易惯例,如《联合国国际货物销售合同公约》《国际商事合同通则》《国际贸易术语解释通 则》。

各国的国内法中与国际货物销售合同有关的内容也将在本章中予以介绍。

(1) Describe a situation in everyday life in which a contract exists.(2) Contract may be made for different purposes. Name some of these purposes.(3) Do you think a gambling contract will be enforced by court in China? Why or why not?A. Definition of Contractmost classical definition may be the one found inis “an agreement between two or more parties which creates an obligation to do or not to 术语和警句给出了定义。

Restatementof the United States defines contract as “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in somemutualstates “a contract is an agreement establishing, altering, or discharging a relationship of civil rights and obligations between natural persons, legal persons or other organizations with equalIn practice, on most occasions “contract” and “agreement” are synonyms. One thing to note is that not all the business documents agreed by the parties may be a contract oris a proposed agreement in which two parties negotiate and reach a mutual assent on some terms, and also decide that they will subsequently put the entire agreement into a formal written document to be signed by them. Whether the memorandum may be deemed to be a contract will depend on if the parties, by actions or words, have clearly indicated their intention to be bound by the document. A similar problem. Such a document memorializes the basic terms on which the parties have agreed, but anticipates further negotiations on more minor issues. Usually the letter of intent indicates that a fuller and more formal agreement will be prepared later. If the parties are unable to settle the supposedly minor issues, what happens if one party asserts that the letter of intent is binding, and the other disagrees? Usually it depends on the test whether the parties have shown their intent in the terms of the letter of 《合同法重述(第二次)》:美国法学会从二十世纪二三十年代开始,为解决美国司法中判例法的日益不确定性和过分复杂性,将已存在的大量判例法予以系统化、条理化、简单化,予以重新整编,即重述。

国际商法英文版:2 Chapter 4 Multinational Enterprise

国际商法英文版:2 Chapter 4 Multinational Enterprise
f. Must be more than one subscriber, but shares can be transferred to anyone. France requires at least seven shareholders.
4-12
Formation of Stock Corporation
4-9
Civil Law Corporations
• Two basic types of civil law corporations: 1. Stock corporation(股份公司): Can raise money in the public marketplace through the sale of freely transferable shares. Financial statements(财务报表) must be disclosed to the public. a. Articles of Incorporation(公司章程): instrument creating and defining a particular corporation. Must be filed with state agency at time of formation.
4-6
The Business Form: In Civil Law States
• In civil law states, every form of business organization is a company(社团).
• A company is an association of persons or of capital organized for the purpose of carrying on a commercial, industrial, or similar enterprise. These companies may be a corporation or a partnership.

2024国际商法:第四章协议要览版B版

2024国际商法:第四章协议要览版B版

20XX 专业合同封面COUNTRACT COVER甲方:XXX乙方:XXX2024国际商法:第四章协议要览版B版本合同目录一览1. 协议定义与范围1.1 定义1.2 范围2. 双方权益与义务2.1 甲方权益与义务2.2 乙方权益与义务3. 协议内容3.1 协议条款3.2 协议条件4. 合作方式与实施4.1 合作方式4.2 实施步骤5. 知识产权与保密5.1 知识产权归属5.2 保密义务6. 费用与支付6.1 费用计算6.2 支付方式与时间7. 违约责任7.1 违约行为7.2 违约责任承担8. 争议解决8.1 争议解决方式8.2 争议解决机构9. 终止与解除9.1 终止条件9.2 解除条件10. 一般条款10.1 适用法律10.2 合同修改与补充11. 合同的生效、变更与解除11.1 生效条件11.2 变更条件11.3 解除条件12. 甲方声明与保证12.1 声明12.2 保证13. 乙方声明与保证13.1 声明13.2 保证14. 其他约定14.1 双方约定的其他事项14.2 第三方约定的事项第一部分:合同如下:1. 协议定义与范围1.1 定义甲方:(甲方全称)乙方:(乙方全称)1.2 范围本协议旨在明确甲方与乙方之间关于(协议主题)的合作事宜,并规定双方在此合作过程中的权利、义务及责任。

2. 双方权益与义务2.1 甲方权益与义务(详细描述甲方的权益)(详细描述甲方的义务)2.2 乙方权益与义务(详细描述乙方的权益)(详细描述乙方的义务)3. 协议内容3.1 协议条款本协议共分为(几部分),包括:(列举主要部分或条款名称)。

3.2 协议条件本协议自双方签字盖章之日起生效,有效期为(具体时间),除非提前终止或解除。

4. 合作方式与实施4.1 合作方式(详细描述合作方式)4.2 实施步骤(详细描述实施步骤)5. 知识产权与保密5.1 知识产权归属双方同意,合作过程中产生的知识产权归(甲方或乙方)所有,具体权益按照双方另行签订的知识产权协议执行。

2024国际商法:第四章合同要览

2024国际商法:第四章合同要览

20XX 标准合同模板范本PERSONAL RESUME甲方:XXX乙方:XXX2024国际商法:第四章合同要览本合同目录一览第一条合同定义与主体1.1 合同定义1.2 合同主体第二条合同订立2.1 要约2.2 承诺2.3 合同生效第三条合同履行3.1 履行期限3.2 履行地点3.3 履行方式第四条合同变更4.1 变更条件4.2 变更程序第五条合同解除5.1 解除条件5.2 解除程序第六条违约责任6.1 违约行为6.2 违约责任第七条争议解决7.1 协商解决7.2 调解解决7.3 仲裁解决7.4 法律途径第八条合同的终止8.1 终止条件8.2 终止程序第九条合同的继承9.1 继承条件9.2 继承程序第十条保密条款10.1 保密内容10.2 保密期限10.3 保密义务第十一条知识产权保护11.1 知识产权定义11.2 知识产权保护措施第十二条不可抗力12.1 不可抗力事件12.2 不可抗力后果第十三条合同的转让13.1 转让条件13.2 转让程序第十四条适用法律与争议管辖14.1 适用法律14.2 争议管辖第一部分:合同如下:第一条合同定义与主体1.1 合同定义(此处留白,填写合同的定义内容)1.2 合同主体(此处留白,填写合同主体的定义与范围)第二条合同订立2.1 要约(此处留白,填写要约的内容、形式和要求)2.2 承诺(此处留白,填写承诺的内容、形式和要求)2.3 合同生效(此处留白,填写合同生效的条件和程序)第三条合同履行3.1 履行期限(此处留白,填写履行期限的具体要求)3.2 履行地点(此处留白,填写履行地点的具体要求)3.3 履行方式(此处留白,填写履行方式的具体要求)第四条合同变更4.1 变更条件(此处留白,填写合同变更的条件)4.2 变更程序(此处留白,填写合同变更的程序)第五条合同解除5.1 解除条件(此处留白,填写合同解除的条件)5.2 解除程序(此处留白,填写合同解除的程序)第六条违约责任6.1 违约行为(此处留白,填写违约行为的定义和范围)6.2 违约责任(此处留白,填写违约责任的具体要求和承担方式)第八条合同的终止8.1 终止条件(此处留白,填写合同终止的条件)8.2 终止程序(此处留白,填写合同终止的程序)第九条合同的继承9.1 继承条件(此处留白,填写合同继承的条件)9.2 继承程序(此处留白,填写合同继承的程序)第十条保密条款10.1 保密内容(此处留白,填写需要保密的具体内容)10.2 保密期限(此处留白,填写保密期限的具体要求)10.3 保密义务(此处留白,填写保密义务的具体要求)第十一条知识产权保护11.1 知识产权定义(此处留白,填写知识产权的定义)11.2 知识产权保护措施(此处留白,填写保护知识产权的具体措施)第十二条不可抗力12.1 不可抗力事件(此处留白,填写不可抗力事件的定义和范围)12.2 不可抗力后果(此处留白,填写不可抗力后果的处理方式)第十三条合同的转让13.1 转让条件(此处留白,填写合同转让的条件)13.2 转让程序(此处留白,填写合同转让的程序)第十四条适用法律与争议管辖14.1 适用法律(此处留白,填写合同适用的法律)14.2 争议管辖(此处留白,填写争议管辖的具体要求)第二部分:其他补充性说明和解释说明一:附件列表:附件1:合同主体资格证明附件2:合同履行所需的技术规范和标准附件3:合同涉及的知识产权文件附件4:保密协议附件5:不可抗力事件证明附件6:合同转让证明附件7:争议解决机构出具的调解书或裁决书附件的详细要求和附件的说明:附件1:合同主体资格证明要求:提供合法有效的企业法人营业执照、组织机构代码证、税务登记证、法定代表人身份证明等。

英美商法(双语)课程英美商法大纲

英美商法(双语)课程英美商法大纲

《英美商法》课程教学大纲一、课程总述
二、教学时数分配
本课程主要介绍英美的商事法律制度,它所涉及的是市场经济法律体系中的一些重要的组织制度和交易制度。

本课程的主要内容包括英美的法律系统、合同法、财产法、侵权法、合伙
企业法、公司法等。

通过本课程的学习,使学生能够掌握英美商法的基本理论和基本知识,了解各项具体英美商法制度的价值理念与规则。

培养学生运用英美商法的基本原理、知识和技能,分析、判断和解决商法问题,提高分析和解决实际问题的能力,为我国对外经济交往做出应有的贡献。

2 Chapter4 国际商法

2 Chapter4 国际商法

Chapter 4Multinational EnterpriseContents Summary (2)Outl ine (3)Questions (16)Vocabulary (19)Part1: SummaryM.N.E. (Multinational Enterprise)is a business organization which has direct investments abroad in different markets. It is a company that sells, markets, and manufactures in many countries. Large firms whose operations and functions span national borders. Operates in different countries and adjusts products and practices to each at a higher relative costs.Shareholders and stockholders who do not intervene in the day-to-day operations of the corporation but the only interest is in the return of their investments. The purpose of the corporation is to make a profit (goals and objectives). The board of directors is responsible to the shareholders with right to dividends not the investment per se, they are the legal representatives, and can be sued.Part2: OutlineChapter 4 - The Multinational Enterprise1. Introductiona. The organization and regulations of a business is a matter of municipallaw.A. THE BUSINESS FORM1. Introductiona. The organizational form a business takes is a matter of municipal law.1) States authorize or forbid different business forms based on:a) Political ideology.b) Economic and social needs.2) The company laws of every country in the world are unique in manyways.3) A prudent business investor planning to organize a firm abroad willinvestigate in detail the company laws of the particular countryinvolved.b. For comparative and general planning purposes, it is useful to know thelegal derivation of national company laws in categorizing business forms.1) Most national company laws are derived from:a) The civil law, especially French and German law.b) The common law, especially English law.2. Business Forms in Civil Law Statesa. Company: An association of persons or of capital organized for thepurpose of carrying on a commercial, industrial, or similar enterprise.b. Partnership: A company of two or more persons who co-own and managea business and who are each liable to the full extent of their personal assetsfor its debts.1) Limited partnership: A company of two or more persons, at least oneof whom has unlimited personal liability for the debts of the businessand at least one other who is an investor having limited liability.2) Silent partnership: A secret relationship between two or more persons,one of whom carries on a business in his name alone without revealingthe participation of the other who has limited personal liability.3) Partnership limited by shares: A company of one or more generalpartners who have unlimited personal liability for the debts of thecompany and limited participation by investors in the form of shares.The company is taxed as a corporation.c. Corporation: A company of capital whose owners have limited personalliability.1) Stock corporation: A corporation that can raise money in the publicmarketplace through the sale of freely transferable shares. Itsfinancial statements have to be disclosed to the public.2) Limited liability company: A corporation owned by members that doesnot issue negotiable share certificates and is subject to minimal publicdisclosure laws.3. Business Forms in Common Law Statesa. Company: An association of persons organized for the purpose of carryingon a commercial, industrial, or similar enterprise.b. Partnership: An association of two or more persons who co-own andmanage a business for profit and who are each liable to the full extent oftheir personal assets for its debts.1) Limited partnership: A partnership consisting of one or more generalpartners who manage the business and who are each liable to the fullextent of their personal assets for its debts, and one or more limitedpartners whose liability is limited to the funds they invest.2) Secret partnership: A partnership in which the participation of one ormore persons as partners is not disclosed to the public by any of thepartners. All of the partners have unlimited personal liability.c. Joint stock company: An unincorporated association of persons whoseownership interests are represented by transferable shares.1) The shareholders have unlimited personal liability.d. Business trust: A business arrangement in which the owners of a property,known as beneficiaries, transfer legal title to that property to a trustee who then manages it for them.1) The beneficiaries hold transferable trust certificates entitling them tothe income generated by the property and a residual equitable share atthe time the trust is terminated.2) The trustee has unlimited personal liability while the beneficiaries havelimited personal liability.e. Corporation: A separate juridical entity owned by shareholders who mayhave limited, unlimited, or no liability.1) Public corporation: A corporation that can raise money in the publicmarketplace through the sale of freely transferable shares. Itsfinancial statements have to be disclosed to the public.2) Private corporation: A corporation that may not ask the public tosubscribe to its shares, bonds, or other securities and which is subjectto less stringent public disclosure laws than a public corporation.3) Limited liability company: An unincorporated business association.a) Treated as a partnership for tax purposes.b) Provides limited liability for its owners.d. Limited liability for equity investors.1) Unlimited liability corporation: A corporation whose members areliable in the event that it is wound up and its assets are insufficient tocover its debts.2) No liability corporation: A corporation whose shareholders are notobligated to pay any call for contributions made by the firm or to payany of the firm’s debts, but who will not receive any dividends if a callis due and unpaid.4. The Importance of the Separate Legal Identity of Companiesa. Juridical entities (such as companies) have legal identities separate fromthat of their owners.b. Significance:1) The liability of the owners is limited to their investment in thecompany.2) The owners are neither managers nor agents nor representatives of thecompany.3) The rights and benefits accruing to the company belong to thecompany and not its owners.a) The property rights of a company can only be claimed by thatcompany.Case 4-1. Case Concerning Barcelona Traction, Light, and Power Co.(Second Phase)B. THE MULTINATIONAL ORGANIZATION1. The Parent Companya. Note: The following structures are considered in order of their increasingcomplexity.b. The Nonmultinational.1) Defined: A domestic firm functioning in the international marketplacethrough a foreign agent.2) Note: Neither the principal nor the agent are truly multinationalenterprises because neither operates outside of its home state.c. The National Multinational.1) Defined: A firm in one country — the “parent” — that operates inother countries through branches and subsidiaries.a) Branch: A unit or a part of the parent (such as an overseaspurchasing office, assembly plant, manufacturing plant, or salesoffice).b) Subsidiary: A company organized as a separate legal entity that isowned by the parent.d. The International Multinational.1) Two or more parent companies located in different states operatethrough jointly owned subsidiaries in several states.e. Public Transnationals.1) Defined: A government-controlled multinational enterprise created bytreaty between two or more states.2. The Subordinate Structurea. Subordinates subject to direct control of the parent:1) Representative office: A foreign contact point where interested partiescan obtain information about a particular firm.a) It does not do any business on its own.2) Agent: An individual who is employed as an independentrepresentative of a firm.a) Agents are subject to the supervision of the parent firm (orprincipal).b) Their authority is limited to what the parent delegates to them.3) Branch: A larger unit of the parent company which involves not onlythe placement of individuals in a particular locale, but also theestablishment of a facility, such as an assembly plant, mining operation, or service office.a) The authority of branch personnel is limited to what the parent hasdelegated.b. Disadvantages of these subordinates:1) The parent has to assume all of the risk of investing abroad.2) A foreign firm (or its agent or its branch) is often taxed at higher ratesthan local firms.3) Many developing states require local participation in order for aforeign firm to either invest or expand its local investment.c. Firms not subject to the direct control of the parent:1) Subsidiary: An independently organized and incorporated company.a) Advantages:1] The subsidiary’s company status insulates the parent fromunlimited liability.2] Locally organized companies are commonly entitled to certain tax benefits that foreign branches are not.2) Joint venture: An association of persons or companies who areinvolved in a “collaboration for more than a transitory period.”a) Business form: May be any type of business form (e.g., anassociation, a partnership, a limited partnership, a secretpartnership, or a limited liability company).b) Advantages:1] The investors share the risk.2] Entry into foreign markets is usually easier for a multinational affiliated with a local joint venturer.3) Holding company: A subsidiary company that in turn owns othersubsidiaries.a) Reason for setting up holding companies:1] To establish a consolidated management team for a group of subsidiaries or subsidiaries owned by different parents.2] For tax advantages.b) Business form: Most commonly a holding company is organized asa limited liability company whose shares are held by its parent orparents.C. INTERNATIONAL REGULATION OF MULTINATIONAL ENTERPRISES1. Several International Organizations Have Promulgated Rules of EthicalBehavior for Multinational Enterprises, including:a. Organization for Economic Cooperation and Development (OECD).b. International Labor Organization (ILO).c. International Chamber of Commerce (ICC).2. These are only Suggested Rulesa. Binding international codes do not exist as yet.Reading 4-1. Proposed ISO Standard for Global Business ConductD. HOME STATE REGULATION OF MULTINATIONAL ENTERPRISES1. Introductiona. The most important forms of home state regulation are:1) Regulation of competition.2) Regulation of injuries caused by defective products.3) Prohibition of sharp business practices.4) Regulation of securities.5) Regulation of labor and employment.6) The establishment of accounting standards.7) Taxation.b. Some of these rules are applied extraterritorially by home state, mostnotably:1) Regulation of competition.2) Regulation of injuries caused by defective products.3) Prohibition of sharp business practices.c. The country that has been most willing to apply its laws extraterritoriallyhas been the United States.1) The European Union, to a lesser extent, has also begun to apply itsinternal regulations extraterritorially.2. Unfair Competition Lawsa. United States Unfair Competition Laws.1) Sherman Antitrust Act of 1890 is the principal US law regulatinganticompetitive behavior.a) Section 1 of the Act prohibits contracts, agreements, andconspiracies that restrain interstate or international trade.b) Section 2 of the Act forbids monopolies and attempts tomonopolize commerce or trade either between the states of the USor in international commerce affecting the US.2) Clayton Act of 1914.a) Defines certain specific acts that constitute unfair businesscompetition, including:1] Exclusive dealing agreements and tying clauses.2] Mergers that result in a monopoly.3] Interlocking directorates.3) Robinson-Patman Act of 1936.a) Makes price discrimination illegal.b. Enforcement Provisions of US Antitrust Laws.1) This is one of the two most controversial aspects of the US antitrustlaws.2) The provisions:a) US Justice Department may bring criminal suits for egregiousviolations.b) US Federal Trade Commission may bring civil actions (notably forinjunctions) to ensure full compliance.c) Private persons may sue and recover treble damages for injuriesthey have suffered.c. Extraterritorial Application of US Antitrust Laws.1) The second controversial feature of American antitrust law.2) Statutorily authorized: The Sherman Act declares that it applies toconduct affecting “trade or commerce among the several states, or with foreign nations.”3) Judicially imposed limits on the extraterritorial application of the USantitrust laws.a) Personal Jurisdiction Requirements.1] Jurisdiction may be based on either:a] Section 12 of the Clayton Act.(1) Jurisdiction can be extended to a defendant who“transacts business” in the forum jurisdiction.b] Applicable state “long arm statutes.”2] Due process forbids a court from assuming personaljurisdiction unless a defendant has “minimum contacts” withthe forum state.a] Contemporary rule from Worldwide Volkswagen Corp. v.Woodson (U.S. 1980) requires a showing that:(1) The defendant purposefully did business in the forumstate.(2) The defendant reasonably could have anticipated that itwould have to defend itself in the forum state.b) Subject matter jurisdiction requirement.1] The courts have created two tests for determining when they have subject matter jurisdiction in an American antitrust case.a] Effects test.(1) Defined: Companies carrying on business outside ofthe US will come within the subject matter jurisdictionof a US court if their business activity is:(a) Intended to affect US commerce.(b) Not de minimis.b] Jurisdictional Rule of Reason test(1) Defined: A court will ask the following three questionsbefore assuming jurisdiction over a foreign business forviolation of US antitrust laws:(a) Was the alleged conduct intended to affect theforeign commerce of the US?(b) Was the conduct of such a type and magnitude toviolate the Sherman Act?(c) As a matter of international comity and fairness,should a court assume extraterritorial jurisdiction?(2) Application of test: The third of the three questionsrequires the courts to balance the interests of the US inassuming jurisdiction against the competing interests.The factors the courts balance include:(a) The degree of conflict with foreign law or policy.(b) The nationality of the parties involved.(c) The degree to which other countries will obtaincompliance.(d) Relative importance of violations to US commerceas compared to commerce abroad.Case 4-2. Metro Industries v. Sammi Corp.d. Regulation of Anticompetitive Behavior in the European Union.1) The European Community Treaty contains two provisions regulatingbusiness competition.a) Article 81 prohibits normal arm’s length competitors from enteringinto agreements or carrying on concerted practices which eitherprevent, restrain, or distort trade.b) Article 82 forbids businesses with a dominant position in theirmarketplace from taking improper advantage of their position tothe detriment of consumers.c) Compliance.1] EU Commission is solely responsible for enforcing Articles 81 and 82.2) Extraterritorial application of the EU’s business competition rules.a) EU Commission and the EU Court of Justice have adopted (inessence) the US “effects test.”1] EU effects test: The EU business competition rules apply toforeign firms to the extent that the firm’s activities have aneffect on trade or commerce within the EU.2] EU treaty precludes use of a jurisdictional rule of reason3. Opposition to the Extraterritorial Application of Unfair CompetitionLawsa. Opposition is widespread.1) Methods of opposing the extraterritorial application of unfaircompetition laws (in particular, US antitrust laws).a) Diplomatic protests.b) Blocking Statutes: Typically have three features:1] They limit the extent to which a US plaintiff can obtainevidence or seek production of commercial documents outsideof the US for use in investigations or proceedings in the US.2] They make it difficult for a successful plaintiff to enforce a US judgment outside the US.3] By virtue of a “clawback” provision, they allow defendants to bring suit in their home country to recover the punitivedamages they paid in the US.c) Judicial Injunctions: Are sometimes granted by courts to prohibitone of their nationals from initiating an antitrust suit in the USagainst another of their nationals.Case 4-3. Airbus Industrie v. PatelReading 4-2 F. Hoffman-La Roche Ltd. v. Empagran, S.A.4. Product Liability Lawsa. Purpose of product liability laws: To discourage manufacturers fromputting defective products into the marketplace.1) Means of achieving this: Manufacturers are required to assume liabilityfor the injuries their products cause.Case 4-4. Dow Jones & Co. Inc. v. Gutnickb. Product Liability Theories.1) Three theories are commonly relied upon:a) Breach of contract.b) Negligence.c) Strict liability.2) Most states use only the first two.3) Common law countries use all three.4) EU now relies principally on the last.5. Extraterritorial Application of Product Liability Lawsa. The country that has been most willing to apply its product liability lawsextraterritorially: The US.b. Considerations of US courts in determining whether they can exercisejurisdiction in a product liability case:1) Personal jurisdiction.2) Forum non conveniens.c. Personal Jurisdiction Requirements of US Product Liability Laws.1) Personal jurisdiction must be found in state long arm statutes.a) There are no US federal (i.e., national) product liability laws.2) Due process requirements limit the reach of personal jurisdiction.a) Claimant must show that the defendant had “minimum contacts”with the forum state.1] The claimant must demonstrate that:a] The defendant purposefully availed itself of doing businessin the forum state.b] The defendant reasonably could have anticipated that itwould have to defend itself there.Case 4-5. World-Wide Volkswagen v. WoodsonCase 4-6. Asahi Metal Industry Co., Ltd. v. Superior Court of California,Solano Countyd. Forum non conveniens inquiry by US courts.1) Note: Unlike the US antitrust cases, there is not a separate test forsubject matter jurisdiction.a) The forum non conveniens inquiry serves the same function.2) Defined: A court will not assume jurisdiction over a dispute if it doesnot have enough interest in its outcome.3) Criticism of the use of forum non conveniens in product liability cases:Allows multinational companies to escape responsibility for injuriesthat occur outside the US (especially in developing countries where theremedies available to claimants are often limited both legally andpractically).a) Note: Some US states have statutorily forbidden their courts fromapplying forum non conveniens in product liability cases.6. Sharp Practicesa. Defined: Dishonest business dealings meant to obtain a benefit for a firmregardless of the means used.1) Examples: Misrepresentation and bribery.b. Governing law: Municipal (local) law.c. Extraterritorial application of sharp practices law.1) The country that has been most willing to apply its sharp practices lawsextraterritorially: The US.2) US legislation: Foreign Corrupt Practices Act (FCPA) of 1977.a) Antibribery provisions.1] Apply to:a] US companies or companies registered with the USSecurities and Exchange Commission.b] Their officers, directors, agents, or employees.(1) Caveat: They may only be charged with a violation ofthe FCPA after the company has first been charged andconvicted of the same violation.2] Forbid bribes to:a] Foreign government officials.b] Foreign political party officials.c] Candidates for foreign political office.Case 4-7. United States v. Blondek, Tull, Castle, and Lowry.E. HOST STATE REGULATION OF MULTINATIONAL ENTERPRISES1. Forms of Regulationa. Local regulation: A host state may regulate a foreign firm that is doingbusiness within the state (in the same way that home states do so).b. Extraterritorial regulation: A host state may sometimes seek to regulate theforeign firm.1) This may be done if:a) The foreign company has consented to the jurisdiction of the hoststate.b) The foreign firm is part of a common enterprise with a local firm(making both of them liable for activities of the local firm).c) The independent corporate status of a subsidiary can be ignored sothat liability can be imposed on its parent.2. Consent to the Jurisdiction of the Host Statea. Companies may give express and implied consent to the jurisdiction of astate.1) Express consent is given:a) By incorporating in the state.b) By maintaining the firm’s head office in the state.c) By obtaining a certificate to do business in the state.2) Implied consent can be found from a foreign firm doing businesswithin the state.a) Consent will be implied from:1] The carrying on of a business.2] The solicitation of business.3] Any “persistent” conduct related to the making of a profit.3. Common Enterprise Liabilitya. Defined: Individuals or companies (including related subsidiary companiesof a multinational firm) will be held jointly liable for each other’s conductwhen they function as part of a common enterprise.1) Basis of liability: The participants are regarded as joint venturers orpartners.2) Extent of liability: Each participant has joint or joint and severalliability for the obligations of the entire enterprise.b. Showing the existence of a common enterprise: Look at the intent of theparties.1) Express intent: A formal agreement creating a partnership or jointventure.2) Implied intent:a) A sharing of profits or losses.b) Sharing in the management.c) Joint ownership of the affiliates.Case 4-8. Touche Ross & Co. v. Bank Intercontinental, Ltd.4. Piercing the Company Veila. Defined: Ignoring the corporate structure of a company (i.e., “piercing thecompany veil”) and exposing the shareholders to personal liability.1) Four circumstances where this is done: The controlled company, thealter ego company, undercapitalization, and personal assumption ofliability.b. The Controlled Company: The corporate status of a controlled companywill be ignored if both:1) Its financing and management are so closely connected to its parentthat it does not have any independent decision-making authority; and2) It is induced to enter into a transaction beneficial to the parent butdetrimental to it and to third parties.c. The Alter Ego Company: The company veil will be pierced if the companyis not treated by its shareholders as a separate juridical entity (i.e., it istreated as the alter ego of the shareholders).1) Examples:a) The commingling of corporate and personal assets.b) The use of company assets by shareholders for their own personalbenefit.c) The failure to hold and record minutes of board of directors’meetings.d. Undercapitalization: A company’s veil will be set aside if, at the time itwas formed, it was provided with insufficient capital to meet itsprospective debts or potential liabilities.e. Personal Assumption of Liability: Shareholders who have personallyguaranteed the obligations of a company can, of course, be made to answer for those obligations.Part 3 Questions1.The introduction of Multinational Corporation.MNC: (Multinational Corporation)is a firm having operations in more than one country, international sales and a multinational mix of managers and owners. (e.g., Ford, Toyota, GE, IBM, Intel, Sony with headquarters both in N.Y. and Tokyo). A MNE ordinarily consists of a parent company and at least six subsidiaries typically with a high degree of strategic interaction among the units. Some MNC have more than a hundred subsidiaries and follow absolute and comparative advantages policies. MNC also have different number of foreign production sites and thus different numbers of international markets. This company earns profits in different markets and not only operates in different countries but, owns alliances in other countries and has no allegiance to a particular country.2.What is the definition of corporation ?A corporation is a legal entity with its own rights, privileges and liabilities separate from the members who created it. In other word, a corporation is an association of individuals, created by law or under authority of law, having a continuous existence independent of the existences of its members, and powers and liabilities distinct from those of its members. See also municipal corporation and public corporation.3.What is the definition of sole proprietorship in Chinese Law ?A sole proprietorship is an unincorporated business enterprise that is owned by a single individual who earns all the profits and is liable for all the losses and other obligations of the business. A sole proprietor has complete control anddecision-making power over the business. Sale or transfer can take place at the discretion of the sole proprietor. It is also called Sole Trader.4.What are the characteristics of sole proprietorship ?1) The Capital of a Sole Proprietorship is Contributed by One Person.2) The Business of a Sole Proprietorship is Controlled by Its Sole Owner.3) The Profits and Losses of a Sole Proprietorship are Assumed by Its Sole Owner.Advantage:Convenient formation and flexible managementDisadvantages:higher business risks and restricted business scales5.What is the definition of partnership in Chinese Law ?A partnership is the relationship existing between two or more persons who join to carry on a trade or business. Each person contributes money, property, labor or skill, and expects to share in the profits and losses of the business. A partnership must filean annual information return to report the income, deductions, gains, losses, etc., from its operations, but it does not pay income tax.6.What are the contents of partnership agreements ?1) A designation(任命) for the partnership and the names of the partners2) The nature and scope of the partnership business3) The method for and amount of making capital contribution by each partner4) The methods for profit distribution and loss allocation5) The operation and management of the partnership business6) The duration of the partnership7) Other provisions, if necessary7.What is the Internal and external relationship of a partnership ? Internal Relation of a Partnership:(1) Rights of partners: 1) Right of Sharing Profits2) Right of Management3) Right of Compensation4) Right of Supervising and Managing Partnership Account (2) Duties of partners: 1) Duty to Make Capital Contributions2) Duty to Loyalty3) Duty to Care4) Duty of Not Transferring His Capital Contributions DiscretionarilyExternal Relation of a Partnership:1) Carry on the partnership business, bind the partnership and the other partners.2) Any restriction may not be asserted as a denfense against a third person without knowledge of such restriction.3) The partnership shall be liable for the wrongful acts and has rights to claim compensation for losses.4) New partners shall not be liable for the debts incurred before he joins the partnership.8.What is the Separate Legal Identity of Juridical (also called Legal personality)?Legal personality (also artificial personality, juridical personality, and juristic personality) is the characteristic of a non-living entity regarded by law to have the status of personhood.A legal person has a legal name and has rights, protections, privileges, responsibilities, and liabilities under law, just as natural persons (humans) do.Legal personality allows one or more natural persons to act as a single entity (a composite person) for legal purposes. In many jurisdictions, legal personality allows such composite to be considered under law separately from its individual members or shareholders. They may sue and be sued, enter contracts, incur debt, and own property.。

98 学第 2 学期 英美约法 Anglo-American Law of Contracts 课程纲要

98 学第 2 学期 英美约法 Anglo-American Law of Contracts 课程纲要

6
The Bargain Principle (III): Preexisting Legal Obligation
7
8
Assent (I): Offer and Revocation
9
期中考
10
Assent (II): Modes of Acceptance
11
Implied-in-law and Implied-in-fact/ Preliminary Negotiation, Indefiniteness, and the duty to Bargain in Good Faith
興。
7.《英漢法律辭典》,臺北: 五南。
課程大綱
單元主題
內容綱要
講授
分配時數 示範 習作
其他
備註
教學要點概述:
1.學期作業、考試、評量 作業部份:
考試部份:
評量部份: 基本概念講解以中文進行為主;並以案件研析(case brief)與討論為課程進行 方式。每週研討數個案例,並輪流由同學報告(可用中文)。 1.課堂參與及表現(含案例報告)(50%) 2.期中、期末測驗(50%)
1. 其他欄包含參訪、專題演講等活動。 2. 請同學遵守智慧財產權觀念及勿使用非法影印教科書。
[Top] Copyright c 2007 National Chiao Tung University ALL RIGHTS RESERVED.
12
Parol Evidence Rule
13
Mistake
14
The Effect of Changed Circumstance
15
Third Party Beneficiaries
  1. 1、下载文档前请自行甄别文档内容的完整性,平台不提供额外的编辑、内容补充、找答案等附加服务。
  2. 2、"仅部分预览"的文档,不可在线预览部分如存在完整性等问题,可反馈申请退款(可完整预览的文档不适用该条件!)。
  3. 3、如文档侵犯您的权益,请联系客服反馈,我们会尽快为您处理(人工客服工作时间:9:00-18:30)。

2. Types of people lacking of contractual Capacity
Persons who are deemed incompetent due to age, physical or mental illness lack full capacity to enter into contracts.
reasonable value of what is actually received must be paid in order to prevent the minor from unjust enrichment. The minor is not required to pay the contract price.
–Benjamin Cardozo, 1870–1938
(Associate justice of the US Supreme Court,1932–1938)
“Liberty of contract” is not absolute. Not all people can make legally binding contracts at all times.
In most jurisdictions, an adult may not recover compensation from a minor who returns the property in damaged condition.
Ratification
The act of accepting and giving legal force to an obligation that previously was not enforceable.
Infancy doctrine: The infancy doctrine gives minors the right to
“disaffirm” or cancel most contracts they enter into with adults.
This right is given to protect minors from adults who might take advantage of their youth.
The adult does not have the same right but must fulfill the contract.
If both parties are minors both have the right to disaffirm.
It must be an all or nothing decision. Can not enforce one part of the contract and disaffirm another.
Contracts entered into by persons lacking the capacity to do so may be voidable.
Contracts calling for the performance of an illegal act are illegal and thus void—they are not contracts at all.
Disaffirmance
The term disaffirmance means the repudiation of a contract; that is the election to avoid it or set it aside.
A minor has the legal right to disaffirm a voidable contract at any time during minority or within a reasonable time after becoming of age.
If a minor engages in a business or employment in the same manner as a person having legal capacity, contracts that arise from such business or employment cannot be set aside.
The following classes of persons are in law incompetent to contract, or are only capable of contracting to a limited extent or in a particular manner:
Implied ratification takes place when the minor, on reaching the age of majority, indicates an intent to abide by the contract.
Example: Lin enters a contract to sell her laptop to Arturo, a minor. If Arturo does not disaffirm the contract and, on reaching the age of majority, writes a letter to Lin stating that he still agrees to buy the laptop, he has expressly ratified the contract. If, instead, Arturo takes possession of the laptop as a minor and continues to use it well after reaching the age of majority, he has impliedly ratified the contract.
Common law of contracts protects those who do not have legal capacity and prevents those who have legal capacity from taking advantage of those who do not.
A minor who has reached the age of majority can ratify a contract expressly or impliedly.
Express ratification occurs when the individual, on reaching the age of majority, states orally or in writing that she or he intends to be bound by the contract.
On electing to disaffirm contracts, minors must return whatever they may have received under the contracts, provided they still have possession of it.
Minors are given the option of enforcing the contract or canceling it. This means the contract is voidable by the minor.
The adult is bound by the decision of the minor.
Anglo-American Business Law
1
Anglo-American Business Law
2
Chapter 4 Contract Law (continued)
Anglo-American Business Law
3
Lesson 3: Capacity and legality
by state law.
Such determination is called “the age of majority”
The standard age in the US is 18 The period below that is called the “period of
minority”ຫໍສະໝຸດ 1) contracts for necessaries If a minor contracts for necessaries, the contract is
voidable, but the miner is liable for the reasonable value. The minor's liability is quasi-contractual in nature. The
1. Definition of contractual capacity
Contractual capacity is the legal ability to enter into a contractual relationship.
The law presumes parties to a contract have the legal right to enter into the contract (the capacity).
3) Other enforceable contracts
Ratification may be done after reaching the age of majority.
It may be done orally or in writing or by conduct
Failure to disaffirm will ratify the contract.
相关文档
最新文档