Two legal systems

- classified by the history and development of the domestic law.

Romano-Germanic Civil Law system Anglo-American Common Law system

Romano-Germanic Civil Law system （ also known as Civil law system ， continental

law system) refers to the legal system derived from roman and Germanic practice and set out in national law codes.

欧洲：法国，德国，比利时、西班牙、葡萄牙、意大利、奥地利、瑞士、荷兰，法国、西班牙、葡萄牙、荷兰，挪威、瑞典、丹麦、芬兰和冰岛等。　

亚洲：日本，泰国，中国等。　 在北美，美国的路易斯安那州及加拿大的魁北克省　 非洲：刚果、卢旺达、布隆迪，阿尔及利亚、摩洛哥、

突尼斯等

Anglo-American Common Law system

（ also known as Common law system ） is the legal system of England and countries were once English colonies, which is based primarily on court-made rules or precedent.

英国、美国及其他过去曾受英国殖民统治的国家和地区，主要包括加拿大、澳大利亚、新西兰、爱尔兰、印度、巴基斯坦、马来西亚和新加坡，香港地区。

(2) General Characteristics of the World Major Legal Systems

Civil Law Common Law Legal

rules

Category of laws

Basic sources

Based on Based on general specificprinciples circumstancesPrivate law; common law;Public law equity

Codes; Case law

Civil Law Common Law

Use of case law as precedent

Fact finder

Respected Required

Judge Jury

Substantial Law Procedure Law

判例法分析 大前提：在费尔普斯 v ．麦奎德一案中，费尔普斯在某 C 的错误引导下将其马转让给了某 C ，然后 C 将该卖给了麦奎德，麦奎德是一个善意购买人。法院判决麦奎德胜诉，理由是虽然费尔普斯可以撤销其转让行为，但 C 对马的占有是合法的，依据公平原则，合法占有人将其不能处分的财产转让给一个善意购买人时，善意购买人取得所有权。

小前提：本案中，该珠宝商与费尔普斯 v ．麦奎德一案的 C 一样，是合法占有钻石，而哈里 ·温斯顿公司也与麦奎德一样属于善意购买人。

判决结论：所以本案适用费尔普斯 v ．麦奎德案所确立的规则，即合法占有人将其不能处分的财产转让给一个善意购买人时，善意购买人取得所有权。赞德曼败诉，哈里 ·温斯顿公司取得钻石的所有权。

成文法分析 大前提：《中华人民共和国物权法》第一百零六条规定：“无处分权人将不动产或者动产转让给受让人的，所有权人有权追回；除法律另有规定外，符合下列情形的，受让人取得该不动产或者动产的所有权：（一）受让人受让该不动产或者动产时是善意的；（二）以合理的价格转让；（三）转让的不动产或者动产依照法律规定应当登记的已经登记，不需要登记的已经交付给受让人。

小前提：本案中，珠宝商在没有征得赞德曼的授权的情况下将钻石卖给了哈里 ·温斯顿公司，属于无权处分。但哈里 ·温斯顿公司合理地相信珠宝商有权出售钻石，所以哈里 ·温斯顿公司在行为时是善意的，且为此支付了相应的对价。

判决结论：赞德曼败诉，哈里 ·温斯顿公司取得钻石的所有权。

Introduction to Judicial System of China Supreme People’s Court Higher People’s Courts Intermediate People’s Courts Local People’s Courts

Special Courts

Two- tiered appellate system

23/4/21法律英语 11

International Commercial Contract Law

why do we need a contract?

--- pursuing for legal enforcement of the contract

Definition of Contract

A promise or a 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

- the Restatement (Second) of Contracts Civil Law – mutual consent A contract is an agreement between natural

persons, legal persons or other organizations with equal standing, for the purpose of establishing, altering, or discharging a relationship of civil rights and obligations.

– China Contract Law

Types of Contract

Unilateral Contract Bilateral contract

you clean my house ,I gave you $20

Bilateral contract if you clean my house, I will give you $20

Unilateral Contract

Types of Contract

Written contract Oral contract

Valid contract Void contract Voidable contract Unenforceable contract

Contract Law

Civil Law system - Civil Codes Common Law system – Precedence China - Contract Law 1999 International - CISG, PICC, Custom

Application of PICC1) They shall be applied when the parties have agreed

that their contract be governedby them

2) They may be applied when the parties have agreed that their contract be governed by general principles of law, the lex mercatoria or the like.

3 ） They may be used to interpret or supplement international uniform law instruments.

4 ） They may be used to interpret or supplement domestic law.

5 ） They may serve as a model for national and international legislators.

Requirements for a valid contract Contractual Capacity Agreement Consideration Legality. Formality Intention to be bound

Contractual Capacity

-- Contractual capacity is both natural and artificial persons’ ability to understand that a contract is being made and to be able to be bound by it.

The prarties in international commercial law: Natural person Artificial person

Natural person’s contractual capacity China: 1) Full capacity – a) an adult over18 without

any mental incompetence b) A citizen who has reached the age of 16 but not the age 18 and whose main source of income is his own labor shall be regarded as a person with full capacity for civil conduct.

2) Limited capacity - A minor aged 10 or over 3) No capacity - A minor under the age of 10

or a person with mental incompetence

Contractual capacity1) Contract signed by “No Capacity”- void- shall be represented in civil activities by his agent ad litem

2) Contract Signed by “Limited Capacity”- voidable contract a) US. UK. FRANCE - The contract could be avoid by the person

with limited capacity or his agent ad litemb) Germany, China - The contract is only valid when the agent ad litem admit the

contract. The other party (should be bona fide person) could avoid the

contract before the admission by agent ad litem The other party (should be bona fide person) could send a

notice to the agent ad litem. The agent ad litem should admit the contract within 1 month after they have received the notice. Otherwise, the contract is void.

Exceptions to the contract signed by minors

the contract benefit the minors only , ie: the gift contract the contract for buying necessaries. -- valid and biding Necessaries? Nash v Inman[1908]2KB1.A minor student purchased 11 silk waistcoats from a tailor

for 122 pounds. The tailor failed to recover the payment.1. A minor pay reasonable goods for the necessary goods2. A minor needs the necessary when the contract is

signed3. There is no other alternative to fulfill such needs.

Contractual Capacity

Standard:

1) Age

2) Mental status

Age standard:

1) According to the law in the country of nationality

2) According to the law in the country of signing the contract

Intoxicated and other mentally impaired persons:

The validity of the contract depends on:

1. the intoxicated status

2. the ability to understand the contract

3. Whether there is any unfair clause involved

- Unwillingness to avoid a contract signed by intoxicated person

中国 - 最高人民法院《关于贯彻执行〈中华人民共和国民法通则〉若干问题的意见》第六十七条第二款规定：“行为人在神志不清的状态下所实施的民事行为，应当认定无效。”

Artificial person’s contractual capacity The extent of an artificial person’s capacity

depends on its scope of operation.

contract beyond the scope of operation ≠void

the second requirement - agreement Offer Acceptance

Offer

An offer is a proposal by some person to another indicating an intention to enter into a contract under specified terms.

REQUIRMENTS: Intention to be bound Definiteness Communication of offer to offeree

Invitation to treat

Invitation to offer - an expression of willingness to enter into negotiations

an advertisement on TV or newspaper displaying of goods in shops auction sales

Carlill v Carbolic Smoke Ball Co

We will offer 100 pounds to any person who caught influenza after having used one of our smoke balls in the specified manner.

I caught influenza after using the smoke ball in the specified manner !!!

Termination of offer

Revocation, Counteroffer Rejection Lapse of time – a period fixed in the offer or

reasonable time.

Revocation of offer by offeror

Before the offer takes effect - the offer can be revoked at any time

After the offer takes effect before the acceptance is made --- the offer can be revoked after the acceptance is made -- the offer can not be revoked

An offer can not be revoked:

(1) the offeror indicated a fixed time for acceptance or otherwise explicitly states that the offer is irrevocable;

(2) the offeree has reasons to rely on the offer as being irrevocable and has made preparation for performing the contract.

(1) the offeror indicated a fixed time for acceptance or otherwise explicitly states that the offer is irrevocable;

When does the time ontract start to count? Article 20 - CISG (1) A period of time for acceptance fixed by the offeror

in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time for acceptance fixed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree.

Termination of an offer

(2) Counteroffer by offeree

(3) Rejection of offer by offeree

(4) Lapse of time

UCC- an offer by a merchant to buy or sell goods made in an authenticated record that by its terms gives assurance that the offer will be held open is not revocable for lack of consideration during the time states. If a time is not stated, the offer is irrevocable for a reasonable time not exceeding 90 days.

Acceptance

An acceptance is the offeree’s manifestation of intention to enter into a binding agreement on the terms stated in the offer.

requirements of acceptance an acceptance must be made by the offeree an acceptance must be communicated to the offeror An acceptance must be made by the specific

method prescribed in the offer. An acceptance must be made within the period of

validity An acceptance should match the terms of the offer

exactly and unequivocally

Battle of the form

The mirror image rule

Under the UCC 2-207(1) – a definite expression of acceptance or a written confirmation of an informal agreement may constitute a valid acceptance even if it states terms additional to or different from the offer or informal agreement. The additional or different terms are treated as proposals for addition into the contract

Under UCC 2-207(2), such as between merchants, such terms become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer, (b) material alteration of the contract results. (c) Notification of objection to the additional/different terms are given in a reasonable time after notice of them is received.

A change in the subject matter, quantity, quality, price or remuneration, time ,place and mehod of performance, liabilities for breach of contract or method of dispute resolution is a materieal change to the terms of the offer.

Effective of acceptance

Common law - mail-box rules Exceptions: Billy offered to sell his golf clubs to Jimmy.

Jimmy immediately replied by letter accepting Billy’s offer but, the acceptance never reached Billy.

Was there a contract existed between Billy and Jimmy under Postal rule?

What if Billy wrongly addressed the letter due to his carelessness? Would your answer to a) be different?

Exceptions to mail-box rules

1. If the offeree knows or has reason to know that the letter of acceptance never reached the offeror.

2. The offeror failed to receive the acceptance because of the negligence of offeree

3. The rule does not apply to instaneous forms of communications.

- Civil Law – receipt rule China Contract Law - a notice of acceptance

becomes effective once it reaches the offeror. Article 28,29

Consideration and cause

– something in value

Consideration must not be from the past Performance of an existing contractual duty

to the promisor is not consideration Performance of a public law duty is not

good consideration