1、國(guó)際商事合同International CommercialContracts: A TextbookContentsChapter 1 IntroductionChapter 2 The AgreementChapter 3 Consideration and Promissory EstoppelChapter 4 FormContentsChapter 5 Capacity Chapter 6 Terms of Contract Chapter 7 Mistake Chapter 8 MisrepresentationChapter 9 Duress and Undue Influenc

2、eContentsChapter 10 Illegality and UnconscionabilityChapter 11 Frustration and ImpracticabilityChapter 12 Performance and BreachContentsChapter 13 DamagesChapter 14 Equitable RemediesChapter 15 Privity and Third ParitiesChapter 1IntroductionContentsChapter summaryObjectivesKey wordsInternational com

3、mercial contracts in briefThe Sources of Contract LawThe Relations of Contract Law visa-a-visa Other Areas of LawInternational commercial contracts: foundation of international commerceThe two fundamental principles of contractsfreedom of contract and sanctity of contractVarious sources of contract

4、law The relations between contract law and torts and restitution1. Chapter Summary2. Objectives Through this chapter, students are required to understand the framework of international commercial contract and major issues involved, including the principles and sources of law.Commercial Contracts, Pr

5、omise, Promisor, Promisee, Enforce, Freedom Of Contract, Sanctity Of Contract, Expectation Interests, Reliance Interests, Restitution Interests, CISG, PICC3. Key Words4.1 IntroductionA commercial contract is merely an agreement made by two or more parties for the purpose of transacting business.A co

6、ntract may be oral or written.4. International Commercial Contracts in Brief4.2 The definition of contractWhen it comes to define contracts, various points of view may come forward and leave no definitive answer to this starting issue, though such variances generally would not affect the practical o

7、peration of contracts in the real commercial.4. International Commercial Contracts in Brief4.2 The definition of contractIn English tradition, contracts are defined as “a promise or set of promises which the law will enforce” 4. International Commercial Contracts in Brief4.2 The definition of contra

8、ctThe Restatement (Second) of Contracts of American jurisprudence in section 1 states “A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”4. International Commercial Contracts in Brief4.2 Th

9、e definition of contractThe civil law has long believed that contract is a matter of “meeting of mind” and thus replaced the tangible “promise” with an abstract idea.4. International Commercial Contracts in Brief4.3 The philosophical foundations of contractIn the first place, the theories of the sov

10、ereignty of the human will and the sanctity of promise have derived their persuasion from natural law traditions.Secondly, certain people tend to take the theory of private autonomy as the foundation.4. International Commercial Contracts in Brief4.3 The philosophical foundations of contractThe third

11、 group people favors the reliance theory of contracts and attaches the foundation of contract law not to the will of the promisor to be bound but in the expectations generated by, and the promisees consequent reliance upon, the promise.4. International Commercial Contracts in Brief4.3 The philosophi

12、cal foundations of contractIn the last place, since the 1970s, a group of scholars have approached contracts from the perspectives of economic analysis, with Richard Posner taking the leading role.4. International Commercial Contracts in Brief4.4 The functions of contractFirstly, a contract helps se

13、cure that the legitimate expectations created by a promise of future performance shall be fulfilled, and failing that should give rise to legal liabilities. Secondly, a contract may define the respective responsibilities of the parties to a contract and the standard of performance to be expected. 4.

14、 International Commercial Contracts in Brief4.4 The functions of contractThirdly, a contract may properly allocate economic risks in a transaction for the parties concerned in advance. Lastly but not the least, a contract may tell the parties how to respond to failures of performance that may arise

15、occasionally.4. International Commercial Contracts in Brief4.5 The various interests protected by contract lawThe first and primary interest protected by contract law is the expectation interests of performance, as the benefits of exchange in a contract are derived from the full performance of a pro

16、mise.4. International Commercial Contracts in Brief4.5 The various interests protected by contract lawThe second and supplementary interest protected by contract law is the reliance interests which entitles the injured party to damages for the loss incurred in reliance on the promise.The third inter

17、est protected by contract law is restitution interest.4. International Commercial Contracts in Brief5.1 The principle of freedom of contractFreedom of contract is essential for people to make contracts and for commerce to move around, thus freedom of contracts is the precondition for any contract ru

18、les.5 . The Fundamental Principles of Contracts5.1 The principle of freedom of contractHowever, on the other hand, freedom of contract has had its excesses and has contributed to the economic gap between the rich and the poor and even to possible exploitations by the powerful over the weak.5 . The F

19、undamental Principles of Contracts5.2 The principle of sanctity of contractThis principle postulates that once parties duly enter into a contract, they must honor their obligations under that contract.Sanctity of contract is helpful for stability and predictability.5. The Fundamental Principles of C

20、ontracts5.2 The principle of sanctity of contractHowever, such principles have limited applications as courts are quite cautious and careful so as not to interfere too much with contracts. 5 . The Fundamental Principles of Contracts6.1 The national sourcesSources of contract law can be found in almo

21、st all countries and areas, although they may have many forms.6 . The Sources of Contract Law6.1 The national sourcesFor the civil law countries which either follows the German law or French law, a Civil Code is always the primary source of contract law which is contained as a part of the general la

22、w of obligations.Sources of contract rules in civil law countries are essentially codified.6 . The Sources of Contract Law6.1 The national sourcesSources of contract rules in common law countries are from three sources: common law.equity law.numerous statutes enacted by legislatures to regulate a pa

23、rticular area of law.6 . The Sources of Contract Law6.2 The international sourcesAs contract law is the cornerstone of international commerce, international attempts to harmonize the conflicting rules of various nations and traditions have been made in order to achieve a certain level of uniformity

24、and reduce the level of uncertainty.6 . The Sources of Contract Law6.2 The international sourcesThe most successful and influential and accepted example is the United Nations Convention on Contracts for the International Sale of Goods (CISG or more commonly known as the Vienna Convention)This instru

25、ment is “the greatest influence on the law of worldwide trans-border commerce”.6 . The Sources of Contract Law6.2 The international sourcesAnother influential international effort is the Principles of International Commercial Contracts (PICC) of 2010.6 . The Sources of Contract Law6.2 The internatio

26、nal sourcesThe objective of the UNIDROIT Principles is to establish a balanced set of rules designed for use throughout the world irrespective of the legal traditions and the economic and political conditions of the countries in which they are to be applied.6 . The Sources of Contract Law6.2 The int

27、ernational sourcesIn addition to the aforesaid international sources, there are other international documents which may offer rules, but their acceptance is too limited to demand for serious treatment. The notable examples include FIDIC contracts for construction industry and certain marine contract

28、s.6 . The Sources of Contract Law7.1 IntroductionThe law of obligations has been traditionally divided among contract that is about obligations voluntarily undertaken and tort and restitution.7. The Relations of Contract Law visa-a-visa Other Areas of Law7.1 IntroductionThey serve different situatio

29、ns and offer remedies for the injured parties.They often overlap each other and create certain difficult issues both in theory and practice.7. The Relations of Contract Law visa-a-visa Other Areas of Law7.2 Contract and tortIn theory, contractual duties are voluntarily assumed and tort duties impose

30、d by law, so they respond to different kinds of injury and develop different rules.They may overlap each other.7. The Relations of Contract Law visa-a-visa Other Areas of Law7.3 Contract and restitutionUnder the law of restitution, courts impose an obligation to pay for benefits conferred despite th

31、e absence of a promise.This non-consensual obligation imposed by law, is not a contract and instead is premised upon the concept of avoiding unjust enrichment.7. The Relations of Contract Law visa-a-visa Other Areas of LawChapter 2The AgreementContentsChapter summaryObjectivesKey wordsCase AnalysisI

32、ntroduction Offer AcceptanceThe process of reaching a contract Offer :definition and distinctions from other statementsAcceptance : contents and effective time and manner 1. Chapter Summary2. Objectives Through this chapter, students are required to understand the process of contract formation. Cont

33、ract is reached through negotiations and by offer and acceptance and certain conditions are provided for to define the nature of statements appearing in the process. Students should be able to understand their applications in practice.AgreementOffer, acceptanceIntentionsMeeting of the mindsRevocatio

34、n, CounterofferBattle of formsTerminationMailbox rule3. Key WordsCase:John M. Beley v. The Municipal Court for the Ventura County Judicial District of Ventura County100 Cal. App. 3d 5; 160 Cal. Rptr. 5084. Case Analysis5.1 The general process of formation of contractUsually an essential prerequisite

35、 to the formation of a contract is an agreement: a mutual manifestation of assent to the same terms. Usually, this mutual assent is established by a process of offer and acceptance.5. Introduction5.2 The difficult issues involved in formation of contractThe formation of contract defined in the proce

36、ss of offer and acceptance is a valuable starting point to understand the creation of a contract, but such a process in the real world is often is often intertwined with questions of fact and evidences and procedural issues. . 5. Introduction5.2 The difficult issues involved in formation of contract

37、For example, there has been a long-standing debate over how to properly judge whether there are offer and acceptance at all for it is simply hard sometimes to ascertain the true intentions of the parities.5. Introduction6.1 Offer definedAn offer is traditionally and generally defined as a “manifesta

38、tion 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 first element of an offer is a manifestation of intent to be presently legally bound.6 . Offer6.1 Offer definedThe first element of

39、an offer is a manifestation of intent to be presently legally bound.The second element of an offer is certainty of terms. (there are several elements that must be certain in a contract in order for there to be a valid offer such as parties, price, subject matter and time for performance )6 . Offer6.

40、2 Offer distinguished from statements that are not offersThe first group of statements that often sound like offers but are not true offers is inquiry or invitation to make an offer.6 . Offer6.2 Offer distinguished from statements that are not offersThe second category of statements different from o

41、ffers is expressions of opinion and predictions.6 . Offer6.2 Offer distinguished from statements that are not offersThe third category of statements different from offers is statements of intention, hopes and desires and estimates.6 . Offer6.2 Offer distinguished from statements that are not offersI

42、n determining whether a statement is an offer or not, some of the important factors are relevant for consideration:(1) whether the statement is an initial statement or instead an answer to an inquiry. 6 . Offer6.2 Offer distinguished from statements that are not offers(2) The words used. (3) Are the

43、 terms detailed or specific or are only a few basic terms.(4) Selectivity of statement.6 . Offer6.2 Offer distinguished from statements that are not offers(5) Does the case involve real property or goods(6) Relations among the parties(7) Surrounding circumstances(8) Usages of the trade, prior practi

44、ces of the parties6 . Offer6.3 Termination of an offerAn offer may be terminated by rejection/counteroffer by the offeree. An offer may be terminated by lapse of time.An offer may be terminated by revocation of the offer by the offeror who may change his mind after sending the offer.6 . Offer6.3 Ter

45、mination of an offerAn offer may be terminated by incapacity or death of either party. An offer may be terminated by supervening illegality.An offer may be terminated by the destruction or loss of the subject matter.6 . Offer7.1 Acceptance definedThe manifestation of the intent to be bound by a simp

46、le “yes” expressed through either words or actions, is acceptance. 7. Acceptance7.1 Acceptance definedSilence is rarely considered as valid acceptance since it is short of mutual. Yet silence can be acceptance according to the normal course of dealing between the parties.7. Acceptance7.1 Acceptance

47、definedAcceptances may be effective when sent or when received. Upon the acceptance of the offer, the power of the offeror to revoke the offer is terminated.7. Acceptance7.2 Acceptance must correspond to offerFor an offer and acceptance to create a binding agreement, there must be an objective manif

48、estation of mutual assent, which is often referred to as a “meeting of the minds.”.7. Acceptance7.2 Acceptance must correspond to offerThere is an ancient rule called “mirror image rule” that requires that the acceptance of an offer must exactly match the terms of the original offer in order to qual

49、ify for an acceptance.7. Acceptance7.2 Acceptance must correspond to offerHowever, this may be inconsistent with the modern commercial practices. Practically, minor variations to the offer that do not change the fundamental obligations of the parties do not stand in the way of the formation of the c

50、ontract.7. Acceptance7.3 The effective time of acceptanceMailbox rule ：acceptance is effective upon its proper dispatch.On the other hand, as unilateral contracts are accepted by actual performance, the parties are not bound to their obligations until complete or substantial performance has been ren

51、dered.7. Acceptance7.3 The effective time of acceptanceHowever, modern technology has contributed to the changes in rules.The rules in CISG may serve as a good example: (1) An offer becomes irrevocable when an acceptance is dispatched; but (2) the acceptance is effective only when and if it reaches

52、the offeror.7. Acceptance7.4 Manner and mode of acceptanceManner of acceptance refers to the rule whether the offeree can accept an offer by making a return promise or by performing or tendering performance; While mode of acceptance here refers to how the acceptance is to be communicated, whether th

53、rough mail, facsimile, hand-delivered, or emailed, etc.7. Acceptance7.4 Manner and mode of acceptanceThere are mainly two kinds of manner of acceptanceby promise or by conduct. Silence is not acceptance unless there are special circumstances in the trade or in the relationship between parters that p

54、ut the offeree on notice that silence in this instance will be understood to constitute acceptance.7. Acceptance7.4 Termination of acceptanceRevocation or rejection and counteroffer may kill an acceptance. A counteroffer as an implied rejection, has the same effect.7. Acceptance7.4 Termination of ac

55、ceptanceLapse of time may kill the power of acceptance. A late acceptance may kill the possible contract. If the duration of the power of acceptance of the offer is not stated, it should remain open for a reasonable time to be judged according to the situations.7. Acceptance7.4 Termination of accept

56、anceDeath or lack of capacity of the offeror or offeree may terminate the power of acceptance. This rule refers only to death occurring between the making of the offer and the acceptance.7. Acceptance7.4 Termination of acceptanceSupervening destruction, or illegality may terminate the power of accep

57、tance. 7. AcceptanceChapter 3Consideration and Promissory EstoppelContentsChapter summaryObjectivesKey wordsCase AnalysisConsideration Promissory Estoppel The true nature and basis of contract and its enforceability in law.The doctrine of promissory estoppel from equity law.1. Chapter Summary2. Obje

58、ctives Through this chapter, students should understand the birth and purpose and operation of the doctrine of consideration in addition to its limitations. Students should also learn its negative impacts upon business.ConsiderationPromissory estoppelEquity lawExecutory /executed considerationIlluso

59、ry promiseSufficientDeed, waiverEquitable estoppel3. Key WordsCase:Williams v. Roffey Bros and Nicholls (Contractors) Ltd.1991 1 QB 1, 1990 1 All ER 5124. Case Analysis5.1 DefinitionA consideration in its widest sense is the reason, motive, or inducement, by which a man is moved to bind himself by a

60、n agreement. Consideration is the substance of the bargain; it is that for which the parties have exchanged something as bargain.5. Consideration5.1 DefinitionConsideration may be divided into two categories: executory consideration and executed consideration.5. Consideration5.1 DefinitionExecutory