大学国际商法英文版期末复习资料.doc

国际商法
1. “international business law” as the body of legal rules and norms that regulates international commercial trade and international business organizations
2. The fact that international business law regulates international transactions of a commercial nature calls for an explanation.
3. The basic sources of international business law include international conventions and treaties, international customs and usages, and national business laws.三大渊源
4. 国家：Common-law system: England United States, Canada. Civil-law system: French and German
5. E-EXW.
F-FCA, FAS, FOB.
C-CFR,CIF, CPT, CIP.
D-DAF, DES, DEQ, DDU, DDP
6. Business organization 形式：sole proprietorship, partnership, joint venture, incorporated company, association, trust and franchise
7. Corporation: corporate form is the most important type of business organization in the world it is generally set up by two or more persons carrying on a business for profits.
8. Partnership is not a separate legal entity.合伙不是一个法律实体。
9. 合伙人义务：1. Liability of partners in contract. 2. Liability of partners for wrongs. 3. Liability of incoming partner.
10. Special general partnership特殊普通合伙（有限责任合伙）
11. Name: Generally, the company should have a name and is registered by the administration. A name will be available if it does not clash with an existing company name, or is not included in the business names register or has not been declared by regulations to unacceptable. If all the shareholders are liable for limited liability, the name must include the word of limited (Ltd).
12. Tree Capital Enterprises: Foreign Contractual Joint Ventures, Foreign Equity Joint Ventures and Foreign Capital Enterprises.
13. The proportion of the investment contributed by the foreign joint ventures shall generally not be less than 25% of the registered capital of a joint venture.
14. Agency Relationships: principal-agent, employer-employee, and employer-independent contractor.
15. Capacity of the Parties四类不行： underage, drunken, drugged, or insane.
16. Authority of the Agent四种：1. Actual authority (2种形式：contract or implied)2. apparent or ostensible authority 3. implied authority 4. authority by virtue of a position held
17. Creation的四种形式：contract, ratification, estoppels, necessity
18. 代理人对被代理人的义务5条：1. Duty of loyalty 2. duty of care, or duty to act with skill 3. duty to obey instructions. 4.duty to account 5. duty to notify
19. 被代理人对代理人的义务3条：1. Duty to compensate 2. duty to reimburse and indemnify 3.duty to keep accounts 。
20. Formation of Contract 5 key requirements 5个要件：offer, acceptance (agreement), consideration, intention to be bound, capacity.
21. There is generally no requirement that the offer be made in any particular form; it may be made orally, in writing or by conduct.三个形式
22. 要约邀请 VS 要约区分
23. Acceptance承诺要件（了解）：1. An acceptance must be made by the offeree. 2. An acceptance must be communicated to the offeror or another person who on his behalf with the offeror’s authoritarian. 3. An acceptance must be made within the period of validity. 4. An acceptance should match the terms of the offer exactly and unequivocally. 5. Mostly, silence and inactivity cannot be construed as acceptance.
24. Time of acceptance： The mail-box rule.投邮主义，英美法系；the receipt rule.大陆法系，我国
25. Consideration is a controversial requirement for contracts under common law. If an arrangement consists of a promise which is not supported by consideration, then the arrangement is not a legally enforceable contract.英国没有对价则合同不合法
26. Rules of consideration8条要求(选择)：1. Consideration must be given. 2. Consideration must be referable to the promise. 3. Consideration must be sufficient, but need not be adequate. 4. Consideration must move from the promise.5. Consideration must not be from the past.6. Performance of an existing contractual duty to the promisor is not consideration.7. Part payment of a debt is not good consideration.8. Performance of a public law duty is not good consideration.
27. Natural person’s contractual capacity(选择)：mon law,三种人不行minors, mentally impaired or incompetent persons, drunk persons.2. China, ①full capacity—a citizen aged 18 or over shall be an adult②limited capacity, a minor aged 10 or over shall be a person will limited capacity for civil conduct③no capacity, a minor under the age of 10 shall be a person having and capacity for civil conduct.
28. 可能影响合同效力（Validity of contract）的五大点: 1. Mistake. 2. Misrepresentation 3. Duress 4. Fraud 5. Undue influence
29. 3 types of mistake in contract (选择): common mistake, unilateral mistake, mutual mistake
30. Damages损害赔偿4类：consequential damages, punitive damages, liquidated damages, nominal damages.
31. Injunction: 1. prohibitory injunction 2. Mandatory injunction
32. Brazil, India, the United Kingdom are not among the major trading countries
33. The CISG is composed of 101 Articles that are divided into four parts
34. Requirements of offer构成要约的条件: 1. The description of the goods 2. Their quantity or determinable quantity 3. their price and determinable price
35. not materially alter the terms of the offer非实质性变更, materially alter the terms of the contract实质变更（了解）
36. Obligations of the seller and buyer重点
37. seller’s obligations卖方义务：1. Delivery of the goods 2. Delivery of documents 3. Conformity of the goods 4. Assurance of the ownership of the goods 5. Time for examine goods and notice of defect.
38. buyer’s obligations买方义务: 1. Payment of the price 2. Taking delivery of the goods
39. 风险转移Passing of risk when the contract involves carriage of the goods: 1. the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer. 2. The risk does not pass to the buy until the goods are handed over to the carrier at that place.
TERMS
40. Agency 代理: a legal relationship whereby one person (the agent) represents another (the principal) and is authorized to act for him/her
41. Agent代理人: a person authorized by another (principal) to act for/ in place of him or her.
42. Principal被代理人: the person for whom an agent acts and from whom the agent derives authority; the person who, by agreement or otherwise, authorizes an agent to act on his or her behalf in such a way that the acts of the agent become binding on the principal.
43. Agency law: is an area of commercial law dealing with a contractual or quasi-contractual tripartite set of relationships when one person is authorized to act on behalf of another to create a legal relationship with a Third Party.
44. CISG公约: (United Nations Convention on Contracts for the International Sale of Good), which providing legal rules governing sales contracts for goods (not services or warranty work) between businesses from two different signatory nations, unless the parties’ contract excludes CISG provisions
45. Breach of Contract: a breach of contract is committed when a party without lawful excuse fails or refuses to perform what is due from him under the contract, or performs defectively or incapacitates himself from performing
46. Undue influence 不当影响is an equitable doctrine that involves one person taking advantage of a position of power over another person
47. 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 addressed.
48. A partnership is a for-profit business association of two or more persons. “Business” includes every trade, occupation, or profession. “Person” includes individuals, partnerships, corporations, and other associations.

简答
49. Unilateral Termination: Revocation or Renunciation: Except where an agency is irrevocable or coupled with an interest, either party can unilaterally terminate the agency. However, the right to terminate may be limited by contractual terms. The principal’s unilateral termination is referred to as a revocation. The agent’s unilateral termination is a renunciation of the authority. Damage may be due to the innocent party if the terminating party has no right to terminate.
50. 终止要约4种情况：1. Revocation of offer by. A revocation of an offer is ordinary effective only when it is made know to the offeree the must be made at the time before it is accepted or at the same time. 2. Counteroffer by offeree. If the offeree purported to accept an offer but in so doing makes may change to the terms of the offer, such action is a counteroffer that rejects the original offer. 3. Rejection of offer by offeree. 4. Lapse of time.
51. Limited liability partnership: limited liability partnership has elements of partnerships and corporations. In a limited liability partnership, all partners have limited liability, similar to that of the shareholders of a corporation and have rights to manage the business directly.

CASE STUDY
1.
1．Is there any contract between Company X and Company Y?
No, since both China and Australian are Contracting States to the CISG, according to Article 1 (1) (a) would apply here. After receiving the offer of 50,000 meters hand-printed cotton cloth, on April 10, Company Y stated that they were not interested in the offer, which rejected the offer. On April 20, the email sent to accept the April 4 offer should be regarded as a new offer instead of acceptance. Therefore, there was no contract between Company X and Company Y.
2. Who is legally right?
Roma was legally right. The defectiveness of some of the zippers on the suitcases could not account to a fundamental breach under the CISG Article 25, therefore Mr. Nelson had no right to cancel the contract but could have other remedies, such as reducing the price.
3. Is there any contract between Company X and Company Y?
It depends on whether postal rule or receipt rule would apply here.
If postal rule applied, the acceptance was effective because the telegram had been sent. Therefore, the contract was made between Company X and Company Y.
If receipt rule applied here, the telegram delivered could not be an effective acceptance because it had been erroneously delivered to Company Z. Moreover, the revocation of acceptance was received by Company Y before company X received the telegram, therefore, there was no contract between Company X and Company Y.