商法案例英文版全套教学课件.ppt

单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,Chapter One Company Law,Introduction,“The limited liability corporation is the greatest single discovery of modern times.Even steam and electricity are less important than the limited liability company.”,-Professor N.M.Butler,President of Columbia University,Section One Corporate Personality,1.Doctrine of Corporate Personality,This artificial person has most of the legal rights of a natural person:,it may sue or be sued as though it were a real person,it must pay taxes,it may apply for business licenses in its own name,it may have its own bank account,and it may hire employees,and so forth.,2.,“Piercing the Corporate Veil”,Factors,(1)failure to maintain adequate corporate records and messing up corporate and other funds,(2)grossly improper capitalization,(3)diver-assets,(4)the formation of the corporation to avoid an existing obligation5)the formation of the corporation to perpetrate a fraud or conceal illegality,and,(6)a determination that injustice and inequitable consequences would result from the corporate entity.,Case Study,Case:,Salomon v.Salomon&Co.,Ltd,.,1897 A.C.22,Case Study Questions:,What are the basic facts of,Salomon,case?,Shall Mr.Salomon be personally liable for the debts of the company to third party?,What do you think of the judgments of high court,the Court of Appeal and House of Lords?Which judgment do you agree with?,Case Study,Case 1-1-1:,Carte Blanche Pte Ltd v.Diners Club International Inc.,Section Two Formation of Corporations,1.,Process of Incorporation,a),Preparing articles of incorporation(in some American states called the charter or the certificate of incorporation)according to the requirements of local law,b),Signing of the articles by one or more incorporators MBCA 1.(f),c),Submitting the signed articles to the concerning government institute for filing MBCA 2.01,2.,Incorporators,The person or persons who execute the articles of the incorporation are called“incorporators.”Traditionally,at least three incorporators were required;but quite a few American states and even China today require only one incorporator.,3.,Articles of Incorporation,4.,Ultra Vires,Doctrine,Whenever a transaction was beyond the corporations limited purposes or powers,either party to the contract could cancel it despite of the other partys full or partial performance.,5.,Pre-incorporation Transactions,A corporation is not dependent on a contract made by its promoter for its own interests unless the corporation takes some affirmative action to execute such a contract.,The promoter is liable in person for all contracts made on behalf of the corporation before its existence unless the promoter is exempted by the terms of the agreement or by certain circumstances.,6.,De Facto,Corporation Doctrine and Corporations by Estoppel,The imperfect in incorporation cannot be overlooked thus the association cannot be legally accepted as a de facto corporation.,In such a context,there is no corporation.If the involved individuals proceed to run the business in spite of such irregularity,they may be held personally liable as partners for the businesss debts.,Case Study,Case:,Newborne v Sensolid(Great Britain)Ltd(1954)CA,Case Study Questions:,What was Mr.Newbornes status when he signed the confirming letter?,Is it true that because Mr.Newborne is personally liable on the agreement,he could enforce the agreement in his personal capacity?,Case Study,Case 1-2-2:,American Vending Services,Inc.v.Morse,Section Three Corporate Finance,1.,Corporate Stock,The ownership of one or more shares of stock of a corporation is a manifest of membership in the corporation.,The stock of a corporation may be classified into common stock and preferred stock.,2.,Acquisition of Shares,Shares of stock may be obtained in two ways:,(1)from the corporation by subscription,either before or after the corporation is organized,or,(2)by transfer of existing shares from a shareholder or from the corporation.,3.,Rights of Shareholders,a)Ownership Rights,b)Right to Vote,c)Preemptive Offer of Shares,d)Inspection of Books,e)Dividends,f)Capital Distribution,g)Shareholders Actions,4.,Liability of Shareholders,Generally,a shareholder has limited liability.,This means that the shareholder is not in person liable for the debts and liabilities of the corporation.,5.,Bonds,A bond is a filing promising to pay back a loan of money to a corporation.,The relationship between the bondholder and the issuing corporation is that of creditor and debtor.,Case Study,Case 1-3-1:,Weston v.Weston Paper and Manufacturing Co.,Case 1-3-2:,State Ex Rel.Pillsbury v.Honeywell,INC.,Section Four Corporate Fiduciary Duties,At the core of corporate law lie duties of trust and confidence fiduciary duties owed by those who control the corporate management system to the body of constituents known as the“corporation”.,1.,Duty of Care,The duty of care asks for the attentiveness and prudence of managers when performing their decision-making and supervisory roles.,According to the statutory standards,a director must execute his duties in good faith,in a manner that could be reasonably believed for the best interests of the corporation,and become informed in performing their decision-making and oversight functions with the care a person in similar position would reasonably believe appropriate under the circumstances.,The business judgment rule is a rebuttable presumption that directors are honest and well-meaning while performing their functions,and that their decisions are informed and rationally undertaken.,The business judgment rule presumes directors do not breach their duty of care.,2.,Duty of Loyalty,The duty of loyalty deals with fiduciaries conflicts of interests and forbids fiduciaries to put their own interests ahead of the corporations.,Corporate fiduciaries breach their duty of loyalty if they divert corporate assets,opportunities,or information for personal gain.,Case Study,Case 1-4-1:,Shlensky v.Wrigley,Case 1-42:,Klinicki v,.,Lundgren,Mergers&Acquisition,and Dissolution,1.,Mergers and Consolidations,Upon a statutory merger,the surviving or new corporation automatically has title to all assets of the disappearing corporations,and inherits all the liabilities of those corporations.Shareholders in all the corporations involved are entitled to receive whatever consideration is specified in the plan of merger.,2.,Voluntary Dissolution,Most American state statutes include systematic provisions for dissolution previous to commencement of business by the incorporators or initial directors and dissolution at any time with the consensus of the shareholders.,Case Study,Case:,Alpert v.Williams Street Corp.,473 N.E.2d 19,26(N.Y.1984),Case Study Questions:,What are the basic facts about,Alpert v.Williams Street Corp,.case?What is the principal issue that the court deals with?,Did Madison 28 Associations exclusion of Alpert through two-step merger violate the state law?How does state law protect shareholders dissenting from a merger?What is the basis for the courts decision?,Chapter Two Contract Law,Introduction,Defined as,Enforceable legally binding agreement,A promise or a set of promises for the breach of which the law gives remedy,or the performance of which the law in some way recognizes as a duty,An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law,Section One Elements of a Contract,elements of a contract are:,(a)a contract is an agreement;,(b)entered into by and between competent parties;,(c)made for legal purpose;,(d)to carry out parties free will;,(e)in exchange of something of value;,(f)in proper form if required by law.,Case Study,Case:Lucyetal.v.Zehmeretal.,84 S.E.(2d)516,196 Va.493(1954),Case Study Questions:,1,What is the legal issue of the case?,2,If evidence showed Zember was intoxicated as high as a Georgia pine,should the decision be different?,3,Does the Supreme Court of Appeals of Virginia consider the contract of transferring the farm an agreement or“merely a joke”?,Case Study,Case 2-1-2:,Goldsworthy v Brickell and Another,Parker LJ,16 July 1986,“Upon whatever precise basis it is sought to uphold a transaction which was originally obtained by undue influence it is an essential ingredient that it would be inequitable to allow the influenced party to set aside the transaction.”,Case study,The High Trees case,Central London Property Trust Ltd v High Trees House Ltd,1947 K.B.130,Case study questions:,1,How do you understand the doctrine ofpromissory estoppelinEnglish contract law?,2,In common law countries,consideration as a condition for a valid contract is slowly eroding in modern practices,especially in commercial transactions.In this case,was the full payment of rent held to be enforceable or unenforceable held by the Kings Bench?,Section Two Formation of a Contract,A contract is based on,an agreement,and every agreement involves an offer followed by an acceptance.,An agreement arises when one party makes an offer,and the other party accepts it.,Effective offer,Three requirements are necessary for being an effective offer:,a)Contractual intention,b)Definiteness,c)Communication to specific offeree(s),Valid offer,Three elements are essential for being a valid offer:,a)By the offeree,b)Unconditional,c)Within the time limit and in the proper manner,Major difference in the two major legal systems,Different rules,as to offer and acceptance,:,civil law applies“receipt rule”,common law turns to“postbox rule”,Case Study,JOSEPH F.PAPA,JR.,ET AL.v.NEW YORK TELEPHONE COMPANY ET AL.,Case Study Questions:,1,Is Papas application an offer or acceptance?The failure to include Papa in the yellow pages is a rejection of Papas offer or contractual violations and negligent actions of the respondents?,2,Has a contract entered into by and between Joseph F.Papa,JR.And New York Telephone Company?,Cast study,Moulton v.Kershaw and Another,Supreme Court of Wisconsin,1884.,59 Wis.316,18 N.W.172.,59 Wis.316,18 N.W.172.(1884),Case summary,In this case,what was the offer?And what was the acceptance?,If Kershaws letter really was an offer,and Moultons letter really was an acceptance,then there would definitely be a contract.Kershaw won by convincing the Court that their letter was simply a request to receive an offer.The true offer in this case was Moultons letter,and Kershaw never accepted the offer.,Complete the following case brief:,Facts:,Issue:,Rule:,Analysis:,Conclusion:,Section Three Breach of Contract and Remedies,Parties to a contract are obligated to perform the contract thoroughly and completely in accordance with the terms and condition.,Breaches,A failure to perform or act called for by the contract,nonconforming performance,nonperformance,supervening impossibility of performance,delay in performance/delayed performance,anticipatory breach,breach of warranty/minor breach,breach of condition/material breach,Remedies,Usu.available for the nonbreaching party,specific performance,damages,liquidated damages,rescission,restitution,and,injunction.,Case study,Cehave N.Vv,Bremer Handelgesellschaft m.b.H.(The Hansa Nord),1976 QB 44 Court of Appeal,Case Study Questions:,1,How do you understand“warranty”and“condition”?,2,Do you think the buyer is entitled to reject the shipment and seek for compensation?Are the judgments delivered in the English Court by the judges,Denning and Ormrod,to the similar effect?,Section Four Discharge of a Contract,Categorized into,discharge by performance,discharge by action of parties unilaterally or jointly,discharge by,external causes beyond the control of the contracting parties,consensual discharge,statutory discharge,Chapter Three CISG,Introduction,CISG-The 1980 Vienna Convention,over 50,years of,negotiations,drafted by UNCITRAL,Adopted in Vienna in 1980,effect since January 1,1988,81 contracting states,Organized in four parts,Organized:,Party,Article 1-13:sphere of application and general provisions,Party,Article 14-24formation of the contract,Party,Article 25-88:sale of goods(rights and obligations of buyers and sellers),Party,Article 89-101:final provisions(ratification and the entry into force of the Convention),Coverage,CISG,applies to international sale of most commercial goods that are movable and tangiblegoverns contractual issues such as,the formation of contracts,the remedies available to buyers and sellers,Section One Formation of a CISG Contract,Like contract laws in most countries,CISG agrees that contracts are formed through offer and acceptance.,Art.23,a contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention.,Offer,Art.14,A proposal for concluding a contract 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 case of acceptance.,Requirements,Effectiveness,Withdrawl,Revocation,Acceptance,Art.14,A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance.Silence or inactivity does not in itself amount to acceptance,Form,Time,Acceptance with modifications,Section Two Obligations of Buyer and Seller,“Sales of Good”,as Party III of the Convention,governs the obligations and remedies of sellers and those of buyers with Chapter II and Chapter III.The relevant articles are including but not limited to those in the brackets.,Obligations of Seller,Delivery of goodsArticle 31 and Article 32 concerning place for delivery,Article 33 regarding time for delivery),Handing over of documents(Article 34),Conformity of goods(Article 35,Article 36 concerning the sellers assurance of the quality of the goods,Article 41 and Article 42 regarding the sellers assurance of the ownership of the goods),Obligations of Buyer,Payment of the price(Article 53-56,Article 57 concerning place for payment,Article 58 and Article 59 regarding time for payment),Inspection of the goods(Article 38,Article 39),Taking delivery(Article 60,Article 66-70),Case study,Case:Treibacher v.TDY,DC.Docket No.01-02872-CV-HS-NE,Case study questions:,1,Has the buyer in following case fulfilled is obligation of taking delivery?,2,What are the main grounds for the judgment of the district court?,Section Three Remedies for Breach,Remedies for Breach of a CISG Contract,In Chapter II and Chapter III of CISG,the relevant articles are including but not limited to those in the brackets,Buyers Remedies,Remedies for breach of contract by the seller are provide in Section III of Chapter II,Damages(Article 45),Specific performance(Article 46,Article 47),Request for repair and substitution(Article 46