国际商法 Part 3 Contract Law 合同法

Section III Contract law for the International Sale of Goods
Major Issues to Be Covered • Definition and Form of Contract • Validity and Formation of Contract
B)
CISG: “A contract of sale need not be
concluded in or evidenced by writing and is not
subject to any other requirements as to form. It
may be proved by any means, including witnesses.”
2. Offer 要约
1) the concept of offer
An offer is a proposal by one person to another
indicating an intention to enter into a contract
under specified terms.
1) Definition Offeree’s manifestation of the intention to be
bound to the terms of the offer. A contract
isn’t formed until the offer is accepted by the
Question: Which party do you stand by?
1) Definition Consideration is some benefit received by a party who gives a promise or performs an act, or some detriment suffered by a party who receives a promise. (the price you pay to buy another person’s promise) Under common law, it is one of the three elements of contract formation.
c)
CISG:
An
offer
may
be
revoked
if
the
revocation reaches the offeree before he has
dispatched an acceptance; An offer can’t be
revoked
(a)
if
it
indicates
that
it
is
C) UNIDROID PICC: almost the same with CISG D) China’s Contract Law (Article 10): “The parties may, when making a contract, use written form, verbal form or any other form.”当 事人订立合同，有书面形式、口头形式和其他形式。
of the invalidity of the offer so as to be free from it before acceptance of the offeree.
b) English law: An offer may be revoked at any time before acceptance.
间设立、变更、终止民事权利义务关系的协议。
2. Form of Contract合同形式 A) UK Law: In the early period, it was required that contract be in writing. 1906 revised Sales
of Goods Act repealed the in-writing requirement.
• Contents of a Contract
• Breach of Contract and Remedies
Part I Formation and Validity of Contracts
I Definition and Form of Contract
1. Definition of Contract合同/协议 A) American Law : “A promise or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in
offeree before acceptance.
b) By non-acceptance within the time prescribed
for acceptance.
c) When no time for acceptance is prescribed, by
non-acceptance within a reasonable time. (How to
(Definiteness: description of goods, expressly or implicitly specifies the quantity and price etc.)
3) Lapse of Offer要约的失效
a) On the death either of the offeror or the
用书面形式。当事人约定采用书面形式的，应当采用书
面形式。
II. Validity and Formation of Contract
1. Essential elements of a valid contract a) an agreement between parties (offer and acceptance).协议=要约+承诺 b) legally sufficient consideration （对价） c) legal capacity缔约能力 d) not for illegal purpose/contrary to public policy. e) intention to create legal relations
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The Second Restatement of Contracts: “ An offer
is a manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”
“The written form shall be adopted if laws or
administrative
regulations
so
require.
The
written form shall be adopted if the parties so
agree.”法律、行政法规规定采用书面形式的，应当采
some way recognizes as a duty.”
B) China’s Contract Law: “A contract is an agreement establishing, modifying and terminating the civil rights and obligations between natural persons, legal persons or other organizations.” 本法所称合同是平等主体的自然人、法人、其他组织之
6. Consideration in Common Law对价
Pinnel’s case [1602] Cole owed Pinnel a sum of money (£8 10s) but at Pinnel’s request paid a part of this amount (£5 2s 6d). Pinnel decided to accept this amount and said he would not claim the rest. But later, Pinnel regretted, demanding the payment of the rest. Cole claimed that there was an agreement by Pinnel that the part-payment would discharge the full debt.
offeree. The offeree may accept at any time
before the offer is invalid.
An acceptance may take the form of a statement or any other conduct to that be indicates bound to the the
offeree’s contract.
intention
2) Requirements of Acceptance a) must be made by the offeree.
b) Must be made within the period of validity.
c) Must match the terms of the offer exactly and
2) Requirements of Offer a) An offer must be addressed to one or more
specific persons.
b) an offer must be sufficiently definite and
indicates the intention of the offeror to be bound.
unequivocally.与要约内容一致
Question:
What
is
the
nature
of
an
“acceptance” that does not match the terms
of the offer exactly?
3) Valid Time of Acceptance Receipt Theory: Under most civil law, a contract is formed when the acceptance is received by the offeror. CISG, UNIDROIT PICC and China Contract Law all adopt the receipt theory.
decide reasonable time?)
d) Express rejection.明确拒绝
e) Counter offer.反要约
f) Revocation by the offeror.撤销/撤回要约
4) Revocation of offer要约的撤销
a) Definition: The offeror notifies the offeree
irrevocable or (b)if it was reasonable for the
offeree to rely on the offer as being irrevocable
and the offeree has acted in reliance on the
offer.
3. Acceptance承诺
Article 25 A contract is established when the acc
eptance becomes effective. 承诺生效时合同成立。
Article 26 An acceptance becomes effective when its notice reaches the offeror. If notice of acceptance is not required, the acceptance shall become effective when an act of acceptance is performed in accordance with transaction practices or as required in the offer. 承诺通知到 达要约人时生效。承诺不需要通知的，根据交易习惯或 者要约的要求作出承诺的行为时生效。