国际商法复习资料整理.docx

本文格式为Word版，下载可任意编辑国际商法复习资料整理 1. Consideration in Common Law (Consideration is one of the three elements of contract formation in common law, the other two being offer and acceptance.) ? Consideration is some benefit received by a party who gives a promise or performs an act, or some detriment suffered by a party who receives a promise. ? Consideration is that which is actually given or accepted in return for a promise. ? Some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other ? In plain English, consideration is the price you pay to purchase another person’s promise. 2. General Rules on Consideration 1) Consideration required for all simple contracts. (A promise without consideration is a gift; one made for consideration is a bargain.) 2) Consideration must have a value that is recognized by the law but need not be equal to the promise. 3) Consideration must be present or future and cannot be past. 4) Consideration must be possible to perform. (A promise to do the impossible would not be accepted as consideration) 5) Consideration must be legal. (An illegal consideration makes the whole contract invalid.) 6) Consideration must move from the promise. 7) Consideration must not be too vague. (Moral consideration is not consideration.) 8) Performance of an existing contractual duty is not valuable consideration 3. Exceptions to the Consideration Requirement 1) Contract under seal does not need consideration 2) Promissory Estoppel 3 Mistakes ? Mistakes under common law mean a misunderstanding about a fact, often occurs between the parties to a contract. ? Mistake under civil law means error relating to the nature of contracted object amounts to the cause for a invalid contract. Types of mistakes 1) Common mistake: the parties are in agreement but are both mistaken about a fact that is essential to the existence of the contract. 2) Mutual mistake: occurs when the parties to an apparent contract misunderstand each other regarding an essential fact. 3) Unilateral mistake: occurs where one party is mistaken and the other party is aware, or should be aware, of the mistake and does nothing to correct it. (eg.古董) Chapter Five: Contract Law for the International Sale of Goods 1. Remedies for breach of contract 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 it. The doctrines of compensation 1) The doctrine of expectation interest 正常遵循时的收益（本金） 2) The doctrine of reliance interest 由于相信合同所产生的本金 3) The doctrine of restitution interest 不当得利的利益也要返还 The doctrine of limitations on damages 1) Non-breaching party has the duty to mitigate damages 没有违约的一方应尽最大限度裁减损失 2) Damages must be established with a reasonable degree of certainty 损失务必是确定的 3) Damages must be either foreseeable to the breaching party or would naturally flow from the breach. Types of damage: ? Compensatory damage: damage intended to compensate for a quantifiable loss.补偿性赔偿 ? Consequential damage: damage resulting indirectly from the act complained of… 特殊赔偿/后续赔偿（eg. 下一单收益） ? Liquidated damage: a contractually agreed upon amount to be paid in the event of a breach of the contract. 合同限定赔偿 ? Nominal damage: a small or insignificant amount of money awarded by a court or jury to demonstrate that a … 象征性赔偿 ? Punitive damage: 处治性的赔偿 （eg. 欺诈、盗版书）双倍赔偿 2. Obligations of the Seller and the Buyer Seller 1) Delivery of the goods 2) The turning over of the documents 3) The seller’s assurance of the quality of the goods 4) The seller’s assurance of ownership of the goods Buyer 1) Payment of the price 2) Taking delivery 3. Excuses for Non-performance Excuses 1) Impossibility of performance A. the death of one of the parties; B. the destruction of the specific subject matter of the contract; 合同标的物被毁 C. when the performance of the contract has been rendered illegal or made impossible due to the fault of the other party. 2) Supervening illegality 后发违法 （签订的时候合法，之后不合法） 3) Frustration of purpose (eg. 有些产品禁运；国王游行租房子) 4) Commercial impracticability: a thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can be done only at an excessive and unreasonable cost. 商业目的的不成行 Chapter Six: Carriage of Goods by Sea 1. Bill of Lading A bill of lading is an instrument issued by an ocean carrier to a shipper with whom the carrier has entered into a contract for the carriage of goods, which states that certain goods have been shipped on a particular ship or have been re。