Contract & Business Law Flashcards
Main overarching structures of law
Common Law ( commonwealth & US )
Civil Law ( Europe )
Muslim Law
Jewish Law
Customary Law
Common Law Outline
Dominance: Commonwelath & US
Basis: Judicial decisions
Uncodified: precedent
Role of judges: shape law
Common Law consequences on Contract Law
Traditional view: FREEDOM TO NEGOTIATE– no liability
Grounds to impose precontractual liability: PRE- and CONTRACTUAL
doctrines
Forms of the contracts
Role of the Judge
Civil Law Outline
Dominance: continental Europe to colonies + Russia & Japan
Basis: Legislative decisions
Codified: codes and legislation
Rule of Judges: apply set of rules
Civil Law consequences on Contract Law
Traditional view: GOOD FAITH - liability
Grounds to impose precontractual liability: GENERAL OBLIGATION + CONTRACTUAL REMEDIES
Forms of the contracts
Role of the Judge
Legal families
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.
Factors that could have an
impact on legal traditions
and families
- 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
Legal Norms:
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
4 Types of Law & consequences
Private: damages → pre-contractual, contractual
Public:
Administrative: fine
Criminal: if breached prison
Litigation
two parties fighting against each other, process of taking legal action
Role of law in the society and economy
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
Forms of regulation
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
Contract:
Contract: a voluntary, deliberate, legally binding and enforceable agreement creating mutual obligations between two or more parties
Steps of contracts
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
What is an international contract ?
A contract is international when it has certain links with more than one State
Contractual relationship evidenced by ?:
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
Consideration:
Consideration: agree to give up something valuable in exchange for a benefit
Competent/ priori
Competent/ priori; be in a legal capacity when agreeing to contract, not under pressure and not alcholised by the other party
Private international law
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
International civil procedural law
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?
Similarity: International procedural civil and international private law
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.
Connecting factors
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
Proximity rule:
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.
Substantive rules
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
Lex fori
Lex fori: the law of the country where the judge sits
Lex causae
Lex causae: the law of the country which will substantially govern the contractual relationship
Contractual liability vs Tortious liability:
Tortious obligations are imposed by law, whereas contractual obligations come from the parties’ agreement.
Contractual aspects:
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
Why is not everything contractual ?
A moveable asset does not require a written contract as the transaction is instantaneous. Both parties exchange goods ( payment & pen ) at the same time
Enforceable
is something that will hold up on a tribunal
Which law to apply when making a contract between two businesses in different countries ?
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
Distinction vs merit & jurisdiction
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
