合同法1chapter4) - jade

1、Chapter Four International Contract Law Warm-up questions: 1. What is a contract? 2. Why do we need contracts in our life? I. Introduction II. Formation of Contract III. Validity of Contract IV. Performance of Contract V. Remedies for Breach of ContractKey Terms Offer: 要约 Offeror: 要约人 Offeree: 受要约人，

2、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 Consideration: 对价 Cause: 约因 Promissory estoppel: 许诺性禁反言理论 Misrepresentation: 误解 Pecuniary loss: 金钱损失 Duress: 胁迫 Remedy: 救济措施I. Introduction 1.Definition of a contr

3、act Under Common Law, contract means a promise(允诺) or set of promises, for breach of which the law gives a remedy. Under Civil Law, contract is a “mutual assent” or “meeting of minds”(合意). Chinese Contract Law states that a contract is an agreement between natural persons, legal persons or other org

4、anizations with equal standing, for the purpose of establishing, altering, or discharging a relationship of civil rights and obligations. 合同法第2条：该法所称合同是平等主体之间的自然人、法人、其他组织之间设立、变更、终止民事权利义务关系的协议。A brief introduction to the Contract Law of different countries 1.contract law under the civil law system th

5、e law relating to contract are included in the law of obligations(债法). 2. contract law under the commom law system 1) case laws 2) statutory law: the Sale of Goods Act 1979 of the UK(货物买卖法); the Uniform Commercial Code of the US(统一商法典) The Contract law of the Peoples Republic of China(also the Chine

6、se Code of Contract Law )中华人民共和国合同法Effective date :October 1, 1999 general provisions(总则) specific provisions(分则)3. Contract law of ChinaII. Formation of Contract合同的成立 1. Offer and Acceptance 要约和承诺 Article 13： The parties shall conclude a contract in the form of offer and acceptance. 合同法第十三条当事人订立合同，

7、采取要约、承诺方式。 Negotiation Offer Acceptance Contract (1) Offer 1) Definition and Requirements of an offer An offer is a statement by one party of a willingness to enter into a contract on stated terms, provided that these terms are, in turn, accepted by the party or parties to whom the offer is addresse

8、d. 要约是一方向另一方提出的愿意按一定的条件同对方订立合同，且一旦要约被对方承诺即对要约的一方产生约束力的一种意思表示。 Under China Contract Law, an offer is a partys manifestation of intention to enter into a contract with the other party, which shall comply with the following: Its term are specific and definite; It indicates that upon acceptance by the o

9、fferee, the offeror will be bound thereby. 要约是希望和他人订立合同的意思表示，该意思表示应当符合下列规定：（一）内容具体确定；（二）表明经受要约人承诺，要约人即受该意思表示约束。Requirements of an Offer Contractual intention. It is an invitation to treat（要约邀请）, which is used to invite others to make offer（邀请对方向自己发出要约） and lack of the intention to create a binding o

10、bligation. 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. Definiteness. Communication of offer to offeree. 2) Termination of offer Revocation of offer

11、by offeror. In common law systems, an ordinary offer may be revoked at any time before it is accepted even though the offeror has expressly promised that the offer will be good for a stated period and that period had not yet expired. It may also be revoked even though the offeror has expressly promi

12、sed to the offeree that the offer would not be revoked before a specified later date. Under German law, an offer is binding on the offer so it is hardly to be revoked. Under China Contract Law, an offer may be revoked. The revocation notice shall reach the offeree before it has dispatched a notice o

13、f acceptance. However, an offer may not be revoked, if (a) the offeror indicates a fixed time for acceptance or otherwise explicitly states that the offer is irrevocable; or (b) the offeree has reasons to rely on the offer as being irrevocable and has made preparation for performing the contract. 第十

14、八条要约可以撤销。撤销要约的通知应当在受要约人发出承诺通知之前到达受要约人。 第十九条有下列情形之一的，要约不得撤销：（一）要约人确定了承诺期限或者以其他形式明示要约不可撤销；（二）受要约人有理由认为要约是不可撤销的，并已经为履行合同作了准备工作。 Counteroffer by offeree. A company sent an offer to B company that it would sell 100 computers to B company for $200,000. B company wrote back that it would accept the compute

15、rs for $150,000. B companys answer is not an acceptance, but is a counteroffer, because it changed the price.Cross offersI promise to do X Party AParty B I promise to do YThere are 2 independent offers: ignorance of the others offer no contract Mike sent John an offer that he would sell a car to Joh

16、n for $10,000. But before having received the offer, John wrote to Mike that he wanted to buy Mikes car for $10,000. Although the content of the letter is the same as the offer, but its not an acceptance. Its a “crossed offer”. Rejection of offer by offeree. Lapse of time. There are two situations.

17、One is that if the offer contains a time limitation for acceptance, no acceptance after the expiration of that time has legal effect; the other is that if the offer does not specify a time, it will terminate after the lapse of a reasonable time. (2) Acceptance An acceptance is the offerees manifesta

18、tion of intention to enter into a binding agreement on the terms stated in the offer. 第二十一条承诺是受要约人同意要约的意思表示。 1) Requirements of acceptance. An acceptance must be made by the offeree. An acceptance must be communicated to the offeror or another person who on his behalf with the offerors authoritarian

19、. An acceptance must be made within the period of validity. An acceptance should match the terms of the offer exactly and unequivocally. Mostly, silence and inactivity cannot be construed/explained as acceptance.2) Battle of the forms格式之战 In most countries the mirror image rule（镜像原则） is one of the r

20、equirements of an acceptance. The rule states that an acceptance should match the terms of the offer exactly, unconditionally and unequivocally. Battle of the forms under common law P108-109. Battle of the forms under the CISG Under the CISG, the key elements of a contract that will materially alter

21、 a contract: price, payment, quality and quantity of goods, place and time of delivery, extent of one partys liability to the other, and settlement of disputes. Thus under the CISG, almost any new or different term in the acceptance could constitute a counteroffer. Battle of the forms Under China Co

22、ntract Law Under China Contract Law, the terms of the acceptance shall be identical to those of the offer. A change in the subject matter, quantity, quality, price or remuneration, time, place and method of performance, liabilities for breach of contract or method of dispute resolution is a material

23、 change to the terms of the offer. 第三十条承诺的内容应当与要约的内容一致。受要约人对要约的内容作出实质性变更的，为新要约。有关合同标的、数量、质量、价款或者报酬、履行期限、履行地点和方式、违约责任和解决争议方法等的变更，是对要约内容的实质性变更。 第三十一条承诺对要约的内容作出非实质性变更的，除要约人及时表示反对或者要约表明承诺不得对要约的内容作出任何变更的以外，该承诺有效，合同的内容以承诺的内容为准。3) Time of acceptance. The mail-box rule（投邮原则） is that the contract is formed w

24、hen the letter of acceptance is placed in the (outgoing) mailbox. It applies only to acceptance. Under the rule, an acceptance is effective once the letter of acceptance is posted. It makes no difference whether the offeror actually receives the letter. The receipt rule（到达原则） is that the acceptance

25、can be effective if it was communicated to the addressee. The difference between the two rules is the allocation of risk when an acceptance is lost or delayed. Under China Contract Law, a notice of acceptance becomes effective once it reaches the offeror. 第二十六条承诺通知到达要约人时生效。case study: Hyde v Wrench

26、(1840) Fact: the owner of an estate offered to sell for 1000. The buyer made a counter-offer of 950. The seller did not accept this offer. The buyer then offered the original 1000, but the seller did not accept. Issue: Is there any contract between Hyde and Wrench? Decision:The court ruled that ther

27、e was no contract in any of this; neither party had made an offer that the other accepted. 2. Consideration and Cause对价和约因 1. What is consideration？ 2. What are the rules of consideration? 3.What are exceptions to requirements of consideration? 4.What is cause? 5.What is the difference between consi

28、deration and cause? (1) Consideration 1) The function of consideration对价的作用 An agreement without consideration is not enforceable. promises with considration = enforceable 有对价的允诺才能得到法律的强制实施 No free lunch! If there is no consideration, e.g. a gift for nothing, cannot be enforced in English law. 在英国法中

29、，无偿赠送礼物的承诺得不到法律的强制实施。也就是说，如果A答应送给B一项礼物，但后来A没有实现诺言，B不能起诉A，无法要求法院强制执行赠送礼物。 The essence of a contract is an exchange. Law of contract is to protect an exchange rather than a promise with nothing as return.合同的本质是交换。因此合同法保护的是交易，而不是不求回报的承诺。 2) What is consideration?(textbook, P111) A valuable consideratio

30、n, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other. pay 2000 to seller buyer seller deliver a car to buyer Consideration is detriment or be

31、nefit 对价是损失或者利益Buyer promised to pay 2000 to seller if seller gives his car to him.In this promise, buyer is the promisor,seller is the promisee.Sellers delivery of a car is consideration for buyers promise to pay 2000.买方支付2000美元的许诺的对价是卖方把汽车交付给买方。 Seller promised to deliver his car to buyer if buyer

32、 pays 2000In this promise, seller is the promisor,buyer is the promisee.buyers paying 2000 is consideration for sellers promise to give a car.卖方交付汽车的许诺的对价是买方支付2000美元。3) Rules of consideration Consideration must be given. Consideration must be referable to the promise. Consideration must be sufficien

33、t, but need not be adequate. Consideration must move from the promisee. Consideration must not be from the past. Performance of an existing contractual duty to the promisor is not consideration. Part payment of a debt is not good consideration. Performance of a public law duty is not good considerat

34、ion. Consideration must be sufficient in law.Consideration need not be adequate in value . Eg: A sells B a car for 1. In this deal, both party provide legal consideration. Tom agreed to sell his computer to John for $10, but later he regretted to do so. He claimed that $10 wasnt an adequate consider

35、ation. The court held that consideration could not be adequate, and an enforceable contract depended on whether there was consideration or not. Thus Tom couldnt withdraw his computer. 甲对自己的非婚生子丙允诺赠予四年学费说， “如果你考上北京大学附中， 我一定负担你的学费。 ” 则甲为丙支付中学学费的行为不能构成丙辛苦劳动的对价，因为丙作为未成年人享有受教育权， 其父甲负有保障其非婚生子受教育权得以实现的法定义务

36、。 故若丙果真考上北京大学附中， 甲为其支付学费的行为仅是其履行法定义务的表现， 不能构成对价。3) Exceptions to requirement of consideration Sealed and written instruments.签字蜡封合同 Uniform Commercial Code. Under the code, consideration is not required for (a) a merchants written, firm offer for goods stated to be irrevocable; (b) a written dischar

37、ge of a claim for an alleged breach of a commercial contract; or (c) an agreement to modify a contract for the sale of goods. Promissory estoppel许诺性禁反言.(2) Cause Cause is the reason why a party enters a contract and undertakes to perform contractual obligations. Cause is different from consideration

38、 as the reason why a party binds himself need not be to obtain something in return.Three essential elements for the formation of a contract合同成立三要件1. Agreement （协议） an offer by one party and an acceptance of that offer by the other2. Contractual intention （缔约意向） an intention that the agreement shall

39、have legal consequences3. Consideration （对价） each party must give something, or promise to give something, in return for the others act or promiseI s there a contract?利用合同三要件判断合同是否存在？Is this a contract?利用合同三要件判断合同是否存在？ 1. Your mother agrees to give you 100 Yuan a week while you are at university. 2.

40、 You buy a plane ticket. 3. Your friend is moving into a new apartment(公寓）. You agree to help her decorate（装饰） it. 4. You agree to meet a friend at the cinema at 8 pm. 5. You buy a washing machine at your local store.Three essential elements for the validity of a contract合同生效三要件 1.Contractual capaci

41、ty 缔约能力 2.Genuineness(真实性) of assent (mistake,mispresentation, duress, fraud, undue influence) 3.Legality 合法性3. Contractual Capacity缔约能力 1 .What is contractual capacity? 2. How many classes of capacity under General Principles of the Civil Law (民法通则)of the Peoples Republic of China?What are they? “C

42、ontractual Capacity” means the intellectual(智力的)ability and wisdom to understand what is being agreed and the consequence of ones business act. They possess the ability to understand. It does not mean that they understand the actual terms of the contract. The law persumes that an adult has contractu

43、al capacity. A contract party which lacks contractual capacity results in:Void Contract 无效的合约-Contract has no effect from the beginningVoidable Contract 可撤销的合约-Contracts is valid until and unless it is avoided or repudiated.The innocent party can avoid the contract. (1) Natural Persons Contractual C

44、apacity In common law, there are three classes of persons who are generally not considered to have sufficient capacity to be bound by their contracts: 1) Minors. 2) Mentally Impaired or Incompetent Persons. 3) Drunk Persons. In civil law systems, for example, under French Civil Code, Articles 1124 a

45、nd 488 provide persons who are incapable of entering into a contract: 1) non-emancipated minors; 2) adults whom an impairing of his personal faculties places in the impossibility of providing alone for his interests is protected by the law, either on the occasion of a specific transaction, or in a c

46、ontinuous manner; 3) adults who because of his prodigality, insobriety or idleness, are in danger to fall into need or compromises the fulfillment of his family obligations. In China, Under General Principles of the Civil Law of the Peoples Republic of China Article 55, a civil juristic act shall me

47、et the requirement that the actor has relevant capacity for civil conduct: 1) Full capacity. 2) Limited capacity. 3) No capacity. 第十一条 十八周岁以上的公民是成年人，具有完全民事行为能力，可以独立进行民事活动，是完全民事行为能力人。 十六周岁以上不满十八周岁的公民，以自己的劳动收入为主要生活来源的，视为完全民事行为能力人。 第十二条 十周岁以上的未成年人是限制民事行为能力人，可以进行与他的年龄、智力相适应的民事活动；其他民事活动由他的法定代理人代理，或者征得他的法

48、定代理人的同意。 不满十周岁的未成年人是无民事行为能力人，由他的法定代理人代理民事活动。 第十三条 不能辨认自己行为的精神病人是无民事行为能力人，由他的法定代理人代理民事活动。 不能完全辨认自己行为的精神病人是限制民事行为能力人，可以进行与他的精神健康状况相适应的民事活动；其他民事活动由他的法定代理人代理，或者征得他的法定代理人的同意。(2) Artificial Persons Contractual Capacity The extent of an artificial persons capacity depends on the law of the place of incorpo

49、ration and the enabling provisions included in the constitutive documents of incorporation.III. Validity of Contract合同的效力Situation Lacking of Genuineness of Assent2.Misrepresentation1.Mistakes4.fraud5.Undue influenceValidity of Contract3.duressMistakes in Common LawCommon MistakeUnilateral MistakeMu

50、tual mistake 1. Mistake (1) Common Law 1) Common mistake共同错误 A common mistake is that where the mistake is common to both parties, the parties have reached agreement, but the agreement is based upon a fundamental mistaken assumption.B purchases Ss summer home on April 10. Subsequently, B learns that

51、 , unknown to either party, the home was destroyed by fire on April 1. Since both parties entered into contract under the mistaken assumption that the subject matter of the contract actually existed at that time. B can have the contract set aside. 在合同的标的物存在与否或在合同的重大问题（vital matter）上，双方当事人发生的共同错误可以使合

52、同无效。 2) Unilateral mistakes单方错误 A unilateral mistake is that only one party to a contract is mistaken when the mistake is known to the other contracting party. Generally, a unilateral mistake will not affect the validity of a contract. 订约当事人一方的错误，原则上不能影响合同的有效性。 单方错误可以撤销合同的情形 1. The non-mistaken part

53、y knew the mistake and tried to take advantage of the mistake. 如果相对方知道错误方的认识发生了错误，但是如果相对方知道错误方的认识发生了错误，但是将错就错地签订了合同，则该合同是可撤销合同。将错就错地签订了合同，则该合同是可撤销合同。 2.the mistake is known, or should be known or recognized, by the other contracting party. 一方当事人发生的错误为相对方当事人所知晓，一方当事人发生的错误为相对方当事人所知晓，而相对方当事人却不对该错误加以纠正，

54、此时错而相对方当事人却不对该错误加以纠正，此时错误方当事人可以主张撤销合同。误方当事人可以主张撤销合同。 Unilateral Mistake: Smith v HughesMr Hughes was a race horse trainer. Mr Smith brought him a sample of oats(燕麦燕麦), and Hughes ordered forty to fifty quarters of oats at 34 shillings a quarter. Sixteen quarters were sent to start with. But when the

55、y arrived, Hughes said they were not the oats he thought they were. He had apparently wanted rolled oats (which are the only ones racehorses can eat), and he was getting new, green oats. In fact, Smiths sample was of green oats. Hughes refused to pay and Smith sued for breach of contract, for the am

56、ount delivered and for damages for the amount for oats that were still to be delivered.The court uphold this contract. 3) Mutual mistake互有错误 A mutual mistake occurs when the parties to a contract are both mistaken about the same material fact within their contract. no contract. void. either party ma

57、y rescind. P owns two properties outside Woodsfield, Ohio. G, after viewing both acreages, makes P a written offer to purchase one for $18,000. P accepts the offer. It later develops that G had one property in mind while P, after reading the description contained in Gs offer, honestly and reasonably

58、 believed that G was referring to the other property. Either party can rescind the agreement, because there was a mutual mistake about the identity of the contracts subject matter(合同标的物合同标的物). (2) Civil Law Under French law, a mistake in contract affects the existence of the contract. A mistake in c

59、ontract does not destroy consent: it merely negatives consent, or to simplify, the mistake concerns the validity of the contract. Under German law, a mistake did not affect consent in that a party had actually consented to the contract but an analysis had to be made at the distinction between the wi

60、ll and what preceded the outward declaration of the will. (3) China China Contract Law Article 54 states that a party may petition(请求) the Peoples Court or an arbitration institution for amendment(变更) or cancellation(撤销) of a contract if the contract was concluded due to a material mistake(重大误解). 第五