国际商法(英)复习14、12

1、The Final ReviewQuestion types:Section I: True or False. (Mark T for True, F for False in the blank provided) (20 %)SectionH Give brief answers to the following questions. (30 %)Section III: Read the Case carefully and answer the followingquestio ns. (20%)Section IV: Read the Case carefully and answ

2、er the following questio ns. (30%)Content:1. The establishment of the contract:a valid con tract is an agreeme nt that contains all of the esse ntial eleme nts of a con tract which are: (1) it is an agreeme nt betwee n the parties entered into by their mutual assent; The mutual agreement is reached

3、through the bargaining process, between offferor and offeree until the offeree accepted the offer. In other words, acontract isn t formed un til the offer is accepted by the offeree. (2) the parties must have legal capacity ; (3) the con tract must n ot be for illegal purposes or to carry on an acti

4、vity that is illegal or contrary to public policy. The above tell us that which esse ntial eleme nts are contained by a valid con tract.Offer: an offer is a stateme nt by one party of a willi ngn ess to en ter into a con tract on stated terms, provided that these terms are, in turn, accepted by the

5、party or parties to whom the offer is addressed. An offer takes effect whe n it reaches the offereeCISG: A proposal for con cludi ng a con tract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in cas

6、e of acceptanee.Requirement of Offer: under the CISG an offer must be sufficiently definite and indicates the intention of the offeror to be bound. (1) the con tract law of most n ati ons hold that an offer must be addressed to one or more specific persons ; (2)A proposal is sufficiently definite if

7、 it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.(3) an offer becomes valid when it arrives at the offeree. This tells us that an offer must has thecon diti ons.An invitation to offer or invitation to treat is simply an expressio

8、n of willi ngn ess to en ter into n egotiati ons which, it is hoped, will lead to the con clusi on of a con tract at a later date.The distinction between offer and invitation to offer is the intention; that is, did the maker of the statement intend to be bound by an acceptance of his terms without f

9、urther negotiation or did he only intend his statement to be part of the continuing negotiation process. Under CISG rules, an advertiseme nt is presumed to be an in vitati on uni ess the con trary is clearly in dicted by the pers on making the proposal.In an auction sale, when the auctioneer invites

10、 the bids from the public, is it deemed as an offer made to the prospective buyers? or an in vitati on to offer?The Binding of an Offer: As a general rule, an offer is binding the offeror and not binding on the offeree.CISG states: (1) un til a con tract is con cluded an offer may be revoked if the

11、revocation reaches offeree before he has dispatched an acceptance;(2) however, an offer can be revoked: (a) if it indicates, whether by stating a fixed time for acceptanceor otherwise, that it is irrevocable or (b) if it was reas on able for offeree to rely on the offer as being irrevocable and the

12、offeree has acted in relia nce on the offer.It is not correct that the offer shall be can cel before the offeree to accept without excepti on un der the CISG. The above told us that what circumsta nces an offer may be revoked un der the CISGAn offer, even if it is irrevocable, may be withdrawn(撤回)if

13、 the withdrawal reaches the offeree before or at the same time as the offer. 要约被撤回； What circumstances an offer may be withdrawn under CISG? The above an swered the questio n.An offer did not take effect becauseits withdrawal notice already reached the offeree before its offer reach offeree, which w

14、ithdrew effectively its offer. So the agree of the other party is not the accepta nce. There is no con tractual relati on ship betwee n the parties.Un til a con tract is con cluded an offer may be revoked if the revocati on reaches the offeree before he has dispatched an accepta nce. 要约被撤销The accept

15、ance is the offeree s manifestation of the intention to bebound to the terms of the offer. Under the CISG, an acceptance may take the form of a stateme nt or any other con duct by the offeree that in dicates the offeree s inten ti on to bd to the con tract.1) The accepta nce must be made by offeree

16、to offeror.2) An acceptance must be made within the period of validity;3) The acceptancemust be unconditional and absolute, with same contents as the offer; A purported acceptanee which does not accept all the terms and conditions proposed by the offeror but which in fact in troduces new terms is no

17、t an accepta nee but a coun ter-offer, which is then treated as new offer. The effect of the counter-offer is to kill off the origi nal offer so that it cannot subseque ntly be accepted by the offeree.Un der the CISG, an accepta ncec on tai ning new terms that do not materially alter the terms of th

18、e offer becomes a part of the con tract , unl ess the offeror promptly objects to the cha nge.However, an accepta ncethat contains additi onal or differe nt terms that do materially alter the terms of the offer would con stitute a rejectio n of the offer and a coun teroffer. No con tract would arise

19、 at all unl ess the offer in retur n accepts all of the terms of coun teroffer.Un der CISG an accepta nee of the coun teroffer may arise by asse nt or by performa nee.Sales excluded from CISG: 1) Con sumer goods sold for pers on al, family or household use. 2) Goods bought at auction. 3) Stocks, sec

20、urities, negotiable instruments or money. 4 Ships, vessels, or aircraft. 5) Electricity. 6) Assembly con tracts for the supply of goods to be manu factured or produced where in the buyer provides a substa ntial part of the materials necessary for such manufacture or production.7) Con tracts that are

21、 in prep on dera nt主要的)part of the supply of labor or other services. 8)Liability of the seller for death or personal injurycaused by the goods. 9 Con tracts where the parties specifically agree to opt out of the conven ti on or here they chose to be bound by some other law.2. breach and remediesWha

22、tsmea ning of an ticipatory repudiati on or an ticipatory breach?One type of breach of con tract occurs whe n the promisor in dicates before the time for his performance that he is unwilling or unable to carry out the con tract. This is called actual breach, is that correct?A party may declare the c

23、on tract avoided: if the failure by the other party to perform any of his obligati ons un der the con tract and this Conven ti on amounts to a fun dame ntal breach of con tract.What are the con seque nces of material breach un der the CISG? The party who is injured by a material breach has the right

24、 to withhold his own performa nce. He is discharged from further obligati ons un der the con tract and may can cel it. He also has the right to sue for damages for total breach of con tract.What is the differe nce betwee n the remedies for material breach of con tract and nonm aterial breach? The pa

25、rty who is injured by a material breach has the right to withhold his own performance. He is discharged from further obligatio ns un der the con tract and may can cel it. He also has the right to sue for damages for total breach of con tract. By con trast, the non-breaching party may sue for only th

26、ose damages caused by the particular breach. In additi on, he does not have the right to can cel the con tract, although a nonm aterial breach can give him the right to suspe nd his performanee until the breach is remedied. Once the breach is remedied, the non-breaching party must go ahead and rende

27、r his performa nee, minus any damages caused by the breach.As long as the seller fails to perform the con tract within the prescribed time limit without exempt cause, the buyer can announceto can cel the con tract. Is that correct?The CISG provide, if the seller is not fulfill his obligations within

28、 the time stipulated in the con tract and does not con stitute a fun dame ntal breach of con tract, the buyer can give the seller a reas on able additi onal time to con ti nue his performa nce un der the con tract, and cant take con flicts with the remedies such as termi nate the con tract duri ng t

29、his period of time.Specific performa nce: an order of specific performa nce is an order of the court which requires the party in breach to perform his primary obligati ons un der the con tract.In com mon law coun tries, specific performa nce are seldomadopted by the court and are subject to the foll

30、owing conditions: specific performa nce is gen erally unavailable where it would cause severe hardship to the defe ndant, where the con tract is un fair to the defe ndant, where the con duct of the claima nt dem on strates that he does not deserve the remedy, where the claima nt has sought to take a

31、dva ntage of a mistake by the defendant, where the performance is impossible, where the con tract is one of pers onal services, sihc as con tract of employme nt So, is it correct that specific performance will be granted by most of the courts in case of con tract breach in com mon law coun tries as

32、it helps remedy the plai ntiff from un faithful con ducts?Performance of contracts under CISG:Seller s obligatdniver the goods, it may be actual or constructive;hand over any docume nts relat ing to them and en sure that the goods conform with the con tract. The above tell us that what obligati ons

33、a seller is required un der the CISG.Place for delivery: under the CISG if the seller is not bound to deliver the goods at any other particular place, his obligation to deliver con sists: (1) the first carrier s place of bus in ess if the con tract invo Ivesthe carriage of goods or (2) the place whe

34、re the parties knew the goods were located or were to be manu factured or produced. ( the time of theparties knew the place was whe n the con clusi on of the con tract); (3) in other case - in placing the goods at the buyer s disposal at the place wherethe seller had his place of bus in ess at the t

35、ime of the con clusi on of the con tractImplied warranties under CISG: The seller must deliver goods that(1) are fit for the purposes for which goods of the same description would ordinarily be used; (2) are fit for any particular purpose expressly or impliedly make known to the seller at the time o

36、f the conclusion of the con tract. So, it is correct that the seller must deliver goods that are fit for the purposes for which goods of the same description would ordinarily be used.The seller must deliver goods which are free fromany right or claim of a third party based on in dustrial property or

37、 other in tellectual property, of which under the law of the state where the goods will be resold or otherwise used, if it was contemplated by the parties at the time of the con clusi on of the con tract that the goods would be resold or otherwise used in that state; or (b) in any other case, under

38、the law of the state where the buyer has his of bus in ess.the obligati on of the seller does not extend to cases where: (a) at the time of the con clusi on of the con tract the buyer knew or could not have been unaware of the right or claim; or (b) the right or claim results from the seller complia

39、 nee with tech ni cal draw in gs, desig ns, formulas or other such specificati ons fur ni shed by the buyer; the above tell us that is not correct about the obligati on of seller that must deliver goods which are free from any right or claim of a third party based on in dustrial property or other in

40、 tellectual property un der CISG does not discharge in any case unl ess the buyer agreed to take the goods subject to that right or claim.The passing of the riskPassage of risk is defined as the shifting of responsibility for loss or damage from the seller to the buyerWhe n a con tract requires the

41、seller to deliver the goods to a carrier for shipme nt and does not require the seller to deliver them to a particular place, the risk passes then the goods are handed over to the first carrier.Accord ing to the CISG provisi on s, If the con tract has no provisi on on bearing the loss of goods, and

42、involved transportation of the goods, then the risk transfer from seller to buyer when the delivery of the first carrier for deliveri ng buyer in accord ing with the con tract.Sometimes goods are sold after they are already aboard a carrier. I n such a case, the risk passes to the buyer at the time

43、the con tract iscon eluded.The risk of loss of the goods which be sold in transit transfer to buyer whe n the con tract is con eluded in any case un der CISG. Is that correct? The goods are sold after they are already aboard a carrier. In such a case, the gen eral rule is that the risk passes to the

44、 buyer at the time the con tract is con cluded. if at the time of the con clusi on of the con tract of sale the seller knew or ought to have known that the goods had bee n lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller.The risk does not pass t

45、o the buyer until the goods are clearly identified to the contract At this time, the risk of loss of goods shall be borne by whom?Partnership and corporation:The gen eral part ners have joi nt and several liability for the debts of the partnership. The limited partners have limited liability, meanin

46、g they are only liable on debts incurred by the firm to the extent of their registered inv estme nt. A part ner n eed not to be resp on sible for the debts of the partnership When the partner withdraws from the partnership. Which is correct? In chi naLimited liability partnership (LLP) is a partners

47、hip in which some or all partners (depending on the jurisdiction) have limited liability. In an LLP one partner is not responsible or liable for another partners misc on duct or n eglige nee. This is an importa nt differe nce from that of an unlimited partnership. Limited liability partnerships are

48、distinct from limited partnerships in some countries, which may allow all LLP partners to have limited liability, while a limited partnership may require at least one unlimited partner and allow others to assume the role of a passive and limited liability inv estorPrei ncorporati on Con tracts: In c

49、om mon law system, the promoter may sig n a con tract in the corporate n ame whe n in fact the corporati on has not yet been formed. Many cases say that such a promoter is pers on ally liable.The circumstances when piercing the corporate veil: It is not sufficient to show that there is only one share