商法选择题2

1 A store places an ad in a newspaper that read: “ The first person in our store on Washington‟s Birthday will receive $100 toward the purchase of an appliance.” Courts would probably hold this to be .A an offer because it is addressed to an identifiable individual, not the general public.B an invitation to make offers because it does not indicate who the first person is.C an acceptance because it has made a commitment to the first person in the store.D not an offer because it did not state the place and the date of payment.2 CISG keeps silent on :A. Validity of the contractB Obligations of the partiesC Breach and remedyD Formation of the contract3 Which of the following transactions is (are) not governed by CISG ?A Auction of a car led by the courtB Transfer of patentC Sale of a planeD Sale of oil4 On May 1st , A sent an offer to B to sell X goods. On May 7th, the market price of X goods was increased and higher than the price the offer proposed. On the same day, A sent a notice of revocation. It arrived to B on May 9th. However, B sent an acceptance to A on May 8th. It arrived to A on May 10th. If CISG is applied, should be considered that .A the contract was concluded on May 8th, since B‟s acceptance was sent on this day.B the contract was concluded on May 10th, since B‟s acceptance arrived to A on this day.C there is no contract was established, because A‟s offer has been revoked until B‟s acceptance arrived to AD there is no contract was established, because ultimately the minds of A and B did not meet5 According to CISG, one of the parties of a contract may declare the contract avoided , .A if the other party has committed fundamental breach of the contract.B if prior to the date for performance of the contract it is clear that the other party will commit a fundamental breach of contract, even if time allows the party intending to declare the contract give reasonable notice to the other party in order to permit him to provide adequate assurance of his performance.C if the other party does not, within the additional period of time fixed by the party in accordance with paragraph (1) of article 63, perform his obligations provided by article30 or article 53 of CISG.D if the other party has committed fundamental breach of the contract, unless the breach was due to force majeure6 X ( a company established in Italy) concluded a contract with Y (a company established in Switzerland) in Spain, selling to Y a number of watches made in Japan at a price of €1 0,000. If no place of delivery is agreed upon, according to CISG, the place of delivery of the watches should be .A SwitzerlandB ItalyC SpainD Japan7 X, a company established in Germany, sells to Y, a company established in China,a number of radios at a price of € 300,OOO. The moment they are delivered to Y it becomes clear that these radios suffer from an electronic defect. According to CISG, which of the following statements is correct ?A There is a breach of contract by X because the radios are not fit for normal use.B If Y knew he was buying radios with these kinds of defects, then of course there is no breach of contract,C Y loses the right to rely on a lack of conformity of the goods if he does not give notice to X specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.D In any event, Y loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of one year from the date on which the goods were actually handed over to Y, unless this time-limit is inconsistent with a contractual period of guarantee.8 A, a company established in Holland, sells a machine to M, a company established in Spain. M accepts the machine, but it does not function properly, such that M declares the contract null and void. M stores the machine, waiting for A to collect it, in an unlocked and unguarded shed. The machine is stolen. M has already paid for the machine. According to CISG, which of the following statements is correct?A It is impossible for M to demand of A to refund the money he has paidB M is still entitled to nullify the contract if A‟ breach of the contract is fundamental.C Nullifying the contract is out of the question, even if A‟ breach of the contract is fundamental , as it is impossible for M to make restitution of the machineD M in this case has no duty to take such steps to preserve the machine as are reasonable , unless he intends to exercise any right under the contract or CISG to reject the machine9 A (Seller) is a Medical instruments maker in Singapore, B(buyer) is a hospital in Shanghai, China. B ordered some products from A. If B decided to transport the goods by air, which of the following terms certainly does not apply to the case?A FOBB DESC CIPD EXW10 A(Buyer) owns a retail store in Kobe, Japan, and B(Seller) is a manufacturer in Shanghai, China. If the sale of goods contract concluded between A and B provided "CIF Kobe" term, according to Incoterms 2000, which of the following statements is (are) correct ?A A must bear all risks of loss of or damage to the goods from the time they have passed the ship‟s rail at the port of Kobe.B B must bear all risks of loss of or damage to the goods until such time as they have passed the ship‟s rail at the port of Shanghai.C A must contract at his own expense for the carriage of the goods to the port of Kobe.D A must clear the goods for export and import.This document is .A not a negotiable instrumentB a promissory noteC a bill of exchangeD a check12 Molly goes to a gas station and has the oil in her car changed. The service technician learns that Molly plans to take a long trip and advises the use of a particular type of oil to which Molly agrees. The oil breaks down while Molly is on her trip, causing damage to her car‟s engine. Molly may recover from the gas station for breaching .A. an express warranty.B. an implied warranty of merchantability.C. an implied warranty of fitness for a particular purpose.D. a warranty of title.13 According to American PL law , which of the following theories describes an action where liability of a seller is based on the theory that the manufacturer failed to use reasonable care to avoid foreseeable injury to the ultimate user or consumer?A negligenceB strict liabilityC breach of warrantyD none of the above14 In order to establish a cause of action based upon strict liability in tort for personal injuries resulting from the use of a defective product, one of the elements the plaintiff must prove is that the seller (defendant) .A. was engaged in the business of selling the product.B. failed to exercise due care.C. defectively designed the product.D. was in privity of contract with the plaintiff.15 Under the product liability theory of strict liability as expressed in the Restatement (Second) of torts, what is an essential fact that must be present if strict liability may be used in a lawsuit as the basis for recovery?A the product must be unreasonably dangerousB the product must be un-merchantableC the product must be unfit for the purpose intended by the buyerD the product must be unfit for any purpose16 In order for an agency to be created, .A there must be compensation to the agent.B there must be a written agreement.C there must be a formal contract of some kind.D none of the above are required.17 K and T agree to form a partnership, but both agree that only K will manage the business and make all business decisions and execute all contracts with third parties.After that time, T then enters into a long-term service contract for the partnership withC, who does not know of the internal agreement. The contract of T with C isA enforceable, as the partners' agreement cannot withhold statutory authority of a general partner to bind the partnership.B enforceable, asC has no knowledge of T's lack of authority.C unenforceable, as T is unauthorized to execute the contract by the partner agreement.D unenforceable, as C had an obligation to confirm T's authority prior to entering intoa service contract with the partnership.18 A is an agent for a disclosed principal named P. A makes a contract with T on P's behalf. A is least likely to be personally liable on this contract to T whenA He lacks authority to contract for P.B He signs the contract "A, agent, on behalf of P".C He signs the contract "A, agent".D He signs the contract "A".19 Normally the principal is not liable for contracts created by an agent's acts that areA unauthorizedB expressly authorizedC actually authorizedC apparently authorized20 Among the following methods of payment in international trade , the most secure method for exporters and, consequently the least attractive for buyers isA open accountB advance paymentC bills of collectionD documentary credit-----------------------------------------------------------------------1 On 1 October 2009, (1) started work. It assumed the judicial functions of the House of Lords. There would for the first time in the UK be a clear separation of powers among the judiciary, the legislature and the executive2 Accordi ng to “Company law” of China, w here the shareholder of a one-person company with limited liability cannot prove that (2) , he shall assume the joint and several liability for the debts of the company.3 According to “Company law” of China, A company may establish branches. Such a branch shall (3) , and its civil liabilities (4) .A company may establish subsidiaries, which (5) , and shall independently bear civil liabilities according to law.4 According to “Negotiable Instruments Law ” of China, where the sum specified ona cheque sighed and issued by the drawer exceeds the actual balance of the drawer's deposit in the paying bank (6) , the cheque is a rubber cheque.5 According to “Negotiable Instruments Law ” of China, where the holder is the drawer, he has no right of recourse against (7) . Where the holder is an endorser, he has no right of recourse against (8) .6 According to UCP (ICC600) , credit means any arrangement, however named or described, that is (9) and thereby constitutes a definite undertaking of (10) to honour a complying presentation.7 Under CISG, if the seller delivers the goods before the date fixed, the buyer may take delivery or. (11) .8 According to CISG, damages for breach of contract by one party consist of a sum equal to the loss, including (12) , suffered by the other party as a consequence of the breach. Such damages (13) the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.9 According to “ General Principles of Civil Law” of China, A legal pers on shall have the following qualifications:(a) establishment in accordance with the law;(b) possession of the necessary property or funds;(c) possession of its own name, organization and premises; and(d) (14)10 For the purposes of Convention on the law application to products liability, the word "product" shall include natural and industrial products, whether (15) and whether (16) .11 According to Contract Law of PRC, For a dispute arising from a contract for (17) the international sale of goods or a technology import or export contract, the time limit for bringing a suit or applying for arbitration is (18) , commencing on the date when the party knew or should have known that its rights were harmed.12 According to UNCITRAL , “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of (19) , whether contractual or not. An arbitration agreement may be in the form of (20) or in the form of a separate agreement.--------------------------------------------------------------1 Briefly describe the key features of common law system.Required: list five key features at least2 Briefly state the differences between corporate share and bond3 Explain the meaning of “Piercing the corporate veil” doctrine, indicate the occasions in which the court will pierce the corporate veil in America, and state the corresponding provision(s) of Chinese law.4 Explain t he duties of the agent as a fiduciary to the principal ( required by state‟s common law of America )5 Explain the meaning of International Commercial Arbitration and describe its advantages---------------------------------------------------------1An-Yong , a Chinese manufacturer, contacted Wada, a Japanese manufacturer, to enquire about Wada making special screws of a particularly high quality. Wada provided by return a list of prices and delivery periods. An-Yong then ordered 5,000 screws and also 5,000 specialized nuts and bolts, not mentioned before. Wada requested payment in advance or a letter of credit. An-Yong, in turn, asked for a pro-forma invoice. When Wada sent the invoice it listed screws of a lower quality than the original specification with their respective prices. An-Yong objected immediately anddemanded delivery of the articles in the …ordered‟ quality. Wada agreed to delivery of higher quality articles but insisted on a higher price than on the invoice. An-Yong insisted on delivery of the higher-quality items but for the price listed in the invoice. Question: Have the two parties entered into a contract on the basis of CISG ? Required:(1) Cite the relevant provisions of CISG and explain their meaning.(2) Analyze the communication the two parties did, and apply the rules of CISG you cited to the facts of the scenario(3) Make your conclusionsAdvise the parties whether or not they have entered into a binding contractual agreement on the basis of CISG.2 Assumed: You are a business consultant. Your customers intending to run some business want to know what kind of business is appropriate.Required: Respectively based on the following conditions of your customers , cite the relevant provision(s) of Chinese business law.(1) Group 1 ( A and B) : A, owner of X company (one-person LLC), plans to run a bakery with B. A has a substantial sum of money to invest, but no interest in the day-to-day operations and unwilling to bear unlimited joint and several liability. B has no money to invest just time and expertise.(2) Group 2 ( C only) C intends to set up a business in Shanghai. He wants to control the business completely, knows nobody else with whom he wishes to work, and dislikes formalities and paperwork. The amount of capital will be not more than RMB20,000.(3) Group 3 ( D and E ): D can contribute RMB25,000 and E is willing to payRMB15,000. D's greatest desire is more investment income, and E‟s is l ess investment risk。