International-Business-Law国际商法复习重点(共38页).docx

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1、精选优质文档-倾情为你奉上Lecture 1 Introduction to International Business Law1. Classification of LawsAll the laws in the world can be classified into:1) International laws2) Municipal laws2. What is International Law?Traditionally, International Law is also called the Law of Nations or Public International Law

2、, and it deals with the international relationship between the states.3. What is Municipal Law?Whereas international law governs relations between states, institutions, and individuals across national boundaries, municipal law governs these same persons (including the private or commercial conduct o

3、f foreign states) within the boundaries of a particular state.Comparative lawyers classify countries into legal families. The two most widely distributed families are the Romano-Germanic civil law and the Anglo-American common law.4. What is International Business Law?International business law is t

4、he body of rules and norms that regulates activities carried out outside the legal boundaries of states. In particular, it regulates the business transactions of private persons internationally, and the international relationships of international commercial organizations.In comparison with the trad

5、itional international business law, contemporary international business law covers much more extensively, such as law for the international trading of goods, company law, negotiable instrument law, maritime law, insurance law, law of international technology transfer, industrial property law, intern

6、ational investment law, international financial law, international tax law, law of international dispute settlement.国际商法（英文版） 姜作利 法律出版社5. Sources of International Lawl Treaties and Conventionsl Treaties are legally binding agreements between two or more states. Conventions are legally binding agreem

7、ents between states sponsored by international organizations.l Customl Some rules have been around for such a long time or are so generally accepted that they are described as customary law.l General Principles and Jus Cogens6. Sources of Municipal Lawl Constitutionl Code & Lawsl Court Judgment7. Pe

8、rsons in International Lawl StatesStates are political entities that have a territory, a population, a government capable of entering into international relations, and a gobvernment capable of controlling its territory and peoples.l International OrganizationsAccording to the United Nations Charter,

9、 there are two kinds of international organizations: (1) public or intergovernmental organizations (IGOs) and (2) private or nongovernmental organizations (NGOs).8. Persons in Municipal Lawl Individual(Natural Person)l Legal Person9. The Rights of Individuals Under International LawInternational law

10、 looks upon individuals in two different ways: (1) it ignores them or (2) it treats them as its subjects. The traditional view is to ignore them. This is based on the idea that international law applies only to states.10. Municipal Legal System Civil Law Systeml The civil law system is the general t

11、ypology of legal systems found in most countries. It is an alternative to common law system and has its roots in Roman Law. It is employed by almost every country that was not a colony of the British Empire.l In most jurisdictions the civil law is codified in the form of a civil codes, but in some,

12、like Scotland it remains uncodified. Most codes follow the tradition of Code Napolon in some fashion. Notably, the German code was developed from Roman law with reference to German legal tradition.l Civil law relies on legislation, rather than judicial decisions for law. Civil law system do not reco

13、gnize judge-made law. 11. Municipal Legal System Common Law Systeml Common law is a system of law used in England, all of the states of the United States (except Louisiana) and other former British possessions such as Australia, Canada (except Quebec), India, Ireland, Jamaica, New Zealand and Hong K

14、ong. l The Common law system emphasizes the role of judges in determining the meaning of laws and how they apply. It arose beginning in the eleventh and twelfth centuries as the English monarch appointed royal judges to resolve disputes in the name of the king (or queen). As there are little formal

15、law to apply to many disputes, the decisions handed down by the judges literally made the law. 12. Chinese Lawl The Law of China, for most of the history of China, was rooted in the Confucian philosophy of social control. These influences remain in the contemporary legal system of the Peoples Republ

16、ic of China. PRC has been influenced by a number of sources including traditional Chinese views toward the role of law, the PRCs socialist background, the German-based law in Taiwan Province, and the English-based common law used in Hong Kong SAR. The law of the United States has also been very infl

17、uential particularly in the area of banking and securities law.Lecture 2 Formation of the Contract 1. ContractBlacks Law Dictionary defines a contract “an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law .1) Formation of the Contract2)

18、Enforceability of the Contract2. Formation of the Contract - OfferA contract is formed when an offer to buy or sell a good is accepted.l The OfferAn offer is aproposal addressed to specific persons indicating an intention by the offeror to be bound to the sale or purfchase of particular goods for a

19、price.l Requirements:l DefinitenessA proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.l Specific Offerees3. Invitation to OfferAn invitation to offer or invitation to treat is simply an express

20、ion of willingness to enter into negotiations which, it is hoped, will lead to the conclusion of a contract at a later date. 4. Display of goods for sale in a supermarketl Case: Pharmaceutical society of GB v. Boots Cash Chemists Boots organized their shop on a self-service basis. They were charged

21、with a breach of section 18(1) of the Pharmacy and Poisons Act 1933, which required that a sale of drugs take place under the supervision of a registered pharmacist. There was no pharmacist present close to the shelves, but a pharmacist supervised the transaction at the cash desk and was authorized

22、to prevent a customer from purchasing any drug if he thought fit to do so. l AdvertisementThe general rule is that a commercial advertisement is an invitation to treat rather than an offer. In Germany, advertisement is only a invitation to offer. While in common law legal system, if it can be proved

23、 that the maker of the advertisement is willing to be bound by the advertisement and the advertisement has clearly provided sufficient information of the goods, advertisement can also be offer. CISG: an advertisement is presumed to be an invitation unless the contrary is clearly indicted by the pers

24、on making the proposal. 5. Case study: Carlill v. Carbolic Smoke Ball The defendants, who were the manufacturers of the carbolic smoke ball, issued an advertisement in which they offered to pay 100 pound to any person who caught flu after having used one of their smoke balls in the specified manner,

25、 and they deposited 1,000 pound in the bank to show their good faith. The claimant caught flu after using the smoke ball in the specified manner. She sued for the 100 pound. The judge held that the advertisement is an offer to the whole world and that a contract was made with those persons who perfo

26、rmed the condition on the faith of the advertisement. 6. Auction salesStep 1. Advertisement of auction or a statement of auctionStep 2. The auctioneer invites the bidsStep 3. The prospective buyers bids for the commodityStep 4. The auctioneer strikes the table. Which step is offer, and which step is

27、 acceptance?Case: British Car Auctions Ltd v. Wright7. TendersWhere a person invites tenders for a particular project, the general rule is that the invitation to tender is simply an invitation to treat. The offer is made by the person who submits the tender and the acceptance is made when the person

28、 inviting the tenders accepts one of them. 8. Effectiveness of an Offerl An offer becomes effective only after it reaches the offeree.l RevocationOffers that do not state that they are irrevocable can be revoked any time before the offeree dispatches an acceptance.l Withdrawall Firm OffersOnes where

29、 the offeror promises to keep the offer open for a fixed period.9. Termination of offera. The offeror or offeree died.b. No acceptance was sent before the offer expires. c. An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the o

30、ffer. 要约被撤回d. Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. 要约被撤销(2) However, an offer cannot be revoked under CISG: (a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irre

31、vocable; 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. e. An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror. 10. Case of Revocation of offerByrne v. Van TienhovenThe defe

32、ndants sent the claimants an offer on 1 October, which reached claimants on 10 October, the claimant accepted the offer by fax on 11 October . However, in the meantime, the defendants had sent, on 8 October, a letter revoking their offer, which reached the claimants on 20 October. It was held that a

33、 contract was concluded between the parties on 11 October because the purported withdrawal could not take effect until 20 October. 11. Formation of the Contract -acceptanceThe acceptance is the offerees manifestation of the intention to be bound to the terms of the offer. The conditions of acceptanc

34、e:a. An acceptance must be made before the offer expires.b. The acceptance must be unconditional and absolute, with the same contents as the offer. c. The acceptance must be made by offeree to offeror. 12. Time of Acceptancel Acceptance must be received by the offeror within the time period specifie

35、d in the offer. If no time period is given, acceptance must be received within a reasonable time. If the offer is oral, the acceptance must be made immediately, unless the circumstances indicate otherwise. l Civil law countries receipt theoryThe acceptance takes effect only after it reaches the offe

36、or. l Common law countries mailbox ruleThe acceptance takes effect when it is sent no matter whether the mail is lost in transit. l Withdrawal Because an acceptance is normally not effective until the offeror receives it, an offeree may withdraw his acceptance any time before or simultaneous with it

37、s receipt.13. Acceptance with Modificationsl A purported acceptance which does not accept all the terms and conditions proposed by the offeror but which in fact introduces new terms is not an acceptance but a counter-offer, which is then treated as new offer. The effect of the counter-offer is to ki

38、ll off the original offer so that it cannot subsequently be accepted by the offeree. (mirror image rule)l Case: Hyde v. WrenchThe defendant offered to sell some land to the claimant for 1000, and the claimant replied by offering to purchase the land for 950. The defendant refused. So the claimant ag

39、reed to pay 1000. But the defendant still refused to sell. Did a contract conclude between the parties? 14. Exception of mirror image rule/Battle of Formsl A reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the

40、 offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. l Additional or diffe

41、rent terms relating, among other things, to the price, payment, quality and quantity of the goods, place of delivery, extent of one partys liability to the other or the settlement of disputes are considered to alter the terms of the offer materially. 15. Formation of the Contract - Acceptancel Form

42、of Acceptancel By wordl By written forml By Performance of an Actl SilenceLecture 3 Enforceability of the Contract 1. Elements Affect the Enforceabilityh1) Capacity of Parties2) Intention of Parties: Misrepresentation; Duress; Undue influence; Mistake3) Illegality4) Consideration2. Capacity of Parti

43、es Capacity means the ability to incur legal obligations and acquire legal rights. Today, the primary classes of people who are considered to lack capacity are minors, persons suffering from mental illnesses or defects, and intoxicated persons.3. Effect of Lack of Capacity Normally, a contract in wh

44、ich one or both parties lack capacity because of infancy, mental impairment, or intoxication is considered to be avoidable.4. Capacity of MinorsA minor is a person under the age of 18. The law usually adopts a particularly protective attitude towards minors. The exercise of this right to avoid a con

45、tract is called disaffirmance. The right to disaffirm is personal to the minor. That is , only the minor or a legal representative such as a guardian may disaffirm the contract.5. In UKThe general rule is that a minor is not bound by a contract which he enters into during his minority. But the rule

46、is subject to some exceptions. a. A contract to supply a minor with necessaries is binding upon the minor where the contract as a whole is for the benefit of the minor. b. A minor is bound by a contract of employment if that contract is generally for his benefit. c. Certain contracts with minors are

47、 not void but only avoidable, that is, the contract is valid and binding upon the minor unless he repudiates liability before majority or within a reasonable time thereafter. 6. Exercise: Nash v. Inman A tailor sold 11 fancy waistcoats to a minor, who was Cambridge undergraduate. The minor refused t

48、o pay for them. The tailor sued to the court? If you were the judge, who would you support?7. Capacity of Mentally Impaired Persons The contracts of people who are suffering from a mental defect at the time of contracting are usually considered to be avoidable. But the mental impaired person needs to prove his mental capacity was inferior when he made the decision.8. Contracts of Intoxicated Personsl Intoxication and Capacity Intoxication can deprive a person