Contract & Business Law

Question 1

Main overarching structures of law

Answer 1

Common Law ( commonwealth & US )

Civil Law ( Europe )

Muslim Law

Jewish Law

Customary Law

Question 2

Common Law Outline

Answer 2

Dominance: Commonwelath & US
Basis: Judicial decisions
Uncodified: precedent
Role of judges: shape law

Question 2

Common Law consequences on Contract Law

Answer 2

Traditional view: FREEDOM TO NEGOTIATE– no liability

Grounds to impose precontractual liability: PRE- and CONTRACTUAL
doctrines

Forms of the contracts

Role of the Judge

Question 3

Civil Law Outline

Answer 3

Dominance: continental Europe to colonies + Russia & Japan
Basis: Legislative decisions
Codified: codes and legislation
Rule of Judges: apply set of rules

Question 4

Civil Law consequences on Contract Law

Answer 4

Traditional view: GOOD FAITH - liability

Grounds to impose precontractual liability: GENERAL OBLIGATION + CONTRACTUAL REMEDIES

Forms of the contracts

Role of the Judge

Question 5

Legal families

Answer 5

The doctrine of legal families
seeks to establish common
groups, identifying similar legal
practices, activities and subject
matter and thereby classifying
the entirety of global legal
transactions and activities into
“families” according to particular
criteria.

Question 6

Factors that could have an
impact on legal traditions
and families

Answer 6

• History ( napoleon creating the civil code
• Religion ( no interest in sharia law & law follows you where you go, still have to obey the law even when your in a foreign country)
• Economy

Question 7

Legal Norms:

Answer 7

H.Kelsen Grundnorm

Pyramid of legal norms

1) Constitution
2) constitutional Law
3) ordinary Law, international treaties, statues of parliament
4) decisions of executive power, president, government

Question 8

4 Types of Law & consequences

Answer 8

Private: damages → pre-contractual, contractual

Public:

Administrative: fine

Criminal: if breached prison

Question 9

Litigation

Answer 9

two parties fighting against each other, process of taking legal action

Question 10

Role of law in the society and economy

Answer 10

social life is regulated by law, but also social norms and market forces, by fixing competitive forces, supply and demand limit availability of products. Technology as well, as it is a regulator, it is regulating human behaviour

Question 11

Forms of regulation

Answer 11

Law Consequences:
criminal, administrative (loss of licence ), civil (compensation )

Market: Availability, Price Offer and demand

Social norms: Reputation, Social sanctions
Online reviews

Technology: Self help measures, Technical impossibility

Question 12

Contract:

Answer 12

Contract: a voluntary, deliberate, legally binding and enforceable agreement creating mutual obligations between two or more parties

Question 13

Steps of contracts

Answer 13

1) meeting of minds ( offer and acceptance )

2) capacity of the parties ( was consent free from vitiation )

3) limits to party autonomy; good morals, laws, public order

Question 14

What is an international contract ?

Answer 14

A contract is international when it has certain links with more than one State

Question 15

Contractual relationship evidenced by ?:

Answer 15

Contractual relationship evidenced by: inter alia; offer, acceptance, valid consideration, priori ( legal capacity to enter the contract )

Contractual relationships can also be evidenced by a breach of contract which then leads to compensation for an loos as a consequence by using either for damages or for performance of the obligations assumed under the contract

Question 16

Consideration:

Answer 16

Consideration: agree to give up something valuable in exchange for a benefit

Question 17

Competent/ priori

Answer 17

Competent/ priori; be in a legal capacity when agreeing to contract, not under pressure and not alcholised by the other party

Question 18

Private international law

Answer 18

Procedural not substantive: they look at the national law applicable rather than to dictate the rules governing the relationship

More specifically, an international trade contract is a contract for a commercial transaction, or a contract made by a trader for the purpose of his business
International trade contracts is when each party intends to act in the exercise of its trade or profession which depends on contract and not status

Trade contracts can be between merchants, manufactures, craftsmen ( trade transactions ) and commercial trade services such as, lawyers and architects ( service transactions )

Contracts transferring or licensing intellectual property are also included in trade contracts same as franchise or agency contracts

Question 19

International civil procedural law

Answer 19

international civil procedural law, that will address the following questions:

What court has jurisdiction on such a matter?

Under what conditions may a court’s decision be recognized and enforced in another country?

Question 20

Similarity: International procedural civil and international private law

Answer 20

Both private international law and international civil procedural law rely on connecting factors to identify the applicable law or the court or arbitral tribunal with jurisdiction.

Question 21

Connecting factors

Answer 21

Connecting factors are elements that link a transaction with a particular law or jurisdiction.
* Citizenship
* Domicile
* Place where the contract was made or needs to be executed

Question 22

Proximity rule:

Answer 22

The most recent theories in private
international law share the view that an
international contract should be preferably
governed by the law it has the closest
connection with (s.c. proximity rule). The
Judge will decide, in the absence of a
choice of applicable law made by the
parties, the country with which a contract
is most closely connected.

Question 23

Substantive rules

Answer 23

An alternative to private international law, international contracts may be subject to national or international substantive rules: i.e. they may be established either at national level, or at international level, by virtue of an international agreement

Question 24

Lex fori

Answer 24

Lex fori: the law of the country where the judge sits

Question 25

Lex causae

Answer 25

Lex causae: the law of the country which will substantially govern the contractual relationship

Question 26

Contractual liability vs Tortious liability:

Answer 26

Tortious obligations are imposed by law, whereas contractual obligations come from the parties’ agreement.

Question 27

Contractual aspects:

Answer 27

consensus → contract → obligations → ( delivery & payment; which need a certain level of conformity, the delivery of the products )

• No need for a specific formality

-Contract is legally binding even when not written and does not always have to be signed ( handshake deal )

-Not entitled to an equal benefit

• Parties can include: individuals, companies, foundations, unincorporated bodies, partnerships and publicly owned entities

Question 28

Why is not everything contractual ?

Answer 28

A moveable asset does not require a written contract as the transaction is instantaneous. Both parties exchange goods ( payment & pen ) at the same time

Question 29

Enforceable

Answer 29

is something that will hold up on a tribunal

Question 30

Which law to apply when making a contract between two businesses in different countries ?

Answer 30

We could choose, use local law or use local law of seller, or find a third country which are detached from both parties involved in the contract

Or use CISG ( United Nations Convention on Contracts for the International Sale of GoodsUnited Nations Convention on Contracts for the International Sale of Goods )

If no law is decided on the lawyers in the scenario of a breach have to figure out which law applied or you could use for jurisdiction to use arbitration

Every tribunal has its own rules: terms, when to take the case ( procedural law ) how they have to work

Law of contract & law of tribunal: german contract in spain will obey to spanish tribunal procedures but look at the breach in terms of german law

Question 31

Distinction vs merit & jurisdiction

Answer 31

merit : CISG
Jurisdiction: CIETAC

Focus on law on contract and jurisdiction focuses on the procedural law of the nation that it takes place in: both to be applied