3 . Analyze the principle of choice of law applicable to contracts with foreign
elements.
-
According to Article 683 of Civil Code (2015): Contracts
1. Contracting parties in a contract may agree to select the applied law for
the contract, other than regulations of Clauses 4, 5 and 6 of this Article. In
case the contracting parties fail to agree the applied law, the law of the
country with which such contract closely associates shall apply.
2. The laws of any of the following countries shall be treated as the law of
the country with which such contract closely associates
a. The law of the country where the seller being natural person
resides or the seller being juridical person is established in terms of
sale contracts;
b. The law of the country where the provider being natural person
resides or the provider being juridical person is established in terms
of service contracts;
c. The law of the country where the transferee being natural person
resides or the seller being juridical person is established in terms of
contracts of transferring rights to use or intellectual property rights;
d. The law of the country where employees frequently perform do
jobs in terms of labor contracts. If an employee frequently does
jobs in multiple countries or the country in which the employee
frequently does his/her job is unidentifiable, the law of the country
with which his/her labor contract closely associates shall be the law
Downloaded by Diem Do (dothuydiem1990zzzz@gmail.com)
of the country where the employer being natural person resides or the employer
being juridical person is established.
e. The law of the country where consumers resides in terms of
consume contract.
3. If there is evident that the law of a country other than the country
prescribed in Clause 2 of this Article associates with the contract more
closely than the latter, the law of the former country shall prevail.
4. If the object of a contract is an immovable property, the law applied to
transfer of its ownership rights and/or other property-related rights, lease
of immovable property or using the immovable property as the guarantee
for performance of obligations shall be the law of the country where the
immovable property is located.
5. If the applied law selected by contracting parties in a labor contract or
a consume contract affects adversely minimum interests of employees or
consumers as prescribed in the law of Vietnam, the law of Vietnam shall
prevail.
6. Contracting parties in a contract may agree to change the applied law
provided that such change does not affect adversely lawful rights and
interests of a third party before changing, otherwise agreed by the third
party.
7. Form of a contract shall be determined in accordance with the law
applied to such type of contract. In case where the form of a contract does
not comply with the form of the law applied to such contract but it
comply with the form of the law of the country where the contract is
entered into or the law of Vietnam, such form of contract shall be
recognized in Vietnam
4. Legal consequences when civil transactions/contracts are declared
invalid? (Có thể là thi)
In one of the following cases, the civil transaction (contract) will be invalid:
-
According to Article 117 of the Civil Code of 2015: Legal
consequences of invalid civil transactions
First, a civil transaction that fails to satisfy one of the conditions specified in
Article 117 The Civil Code 2015 shall be invalid.
-
According to Article 123 of the Civil Code of 2015 : Legal
consequences of invalid civil transactions
Second, violation of prohibitory provisions of law or contravention of social
morality.
-
According to Article 124 of the Civil Code of 2015: Legal
consequences of invalid civil transactions
Third, civil transactions invalid due to falsity: (i) When the parties falsely
establish a civil transaction in order to conceal another civil transaction, the
false civil transaction shall be invalid and the concealed civil transaction
remains valid, unless it is also invalid under The Civil Code 2015 or other
relevant laws.
Downloaded by Diem Do (dothuydiem1990zzzz@gmail.com)
-
According to Article 125 of the Civil Code of 2015: Legal
consequences of invalid civil transactions
Fourth, Civil transactions invalid due to establishment or performance by
minors or persons having lost their civil act capacity or having difficulty in
perceiving and controlling acts or having a limited civil act capacity
Note: Civil transactions of persons specified in Clause 1 Article 125 of The
Civil Code of 2015 shall not be invalid in the following cases: (i) meet their
essential needs; (ii) Civil transactions only give rise to rights or relieve them of
obligations; (iii) Civil transactions whose validity is recognized by the person
established such transactions when he/she becomes an adult or restores his/her
civil act capacity.
Fifth, A civil transaction violating effective conditions on its form shall be
invalid, except for the following cases:
i) In case the civil transaction has been established in writing as prescribed by a
law but its written form fails to comply with the law and one party or all of the
parties has/have performed at least two-thirds of the obligations of the
transaction, the court shall, at the request of one party or all of the parties, issue
a decision recognizing the validity of such transaction.
ii) In case the civil transaction has been established in writing but violates the
regulations on compulsory notarization or certification but one party or all of
the parties has/have performed at least two-thirds of the obligations of the
transaction, the court shall, at the request of one party or all of the parties, issue
a decision recognizing the validity of such transaction. In this case, the parties
are not required to get the notarization or certification.
- According to Article 131 of the Civil Code of 2015: Legal consequences of
invalid civil transactions
i. An invalid civil transaction shall not give rise to, change or terminate any
civil rights and obligations of the parties from the time of establishment of such
transaction.
ii. When a civil transaction is invalid, the parties shall restore the original status
and shall return to each other what they have received. iii. The bona fide party
in the collection of yields and profits shall not have to return such yields and
profits.
iv. The party at fault, which caused damage, shall compensate for damage.
5. Analyze the conditions to terminate the contract and conditions for
unilateral termination of contract performance (6 điểm)
- According to Article 422 of Civil Code of 2015: Termination of contracts
A civil contract shall terminate in any of the following cases:
1. The contract has been completed;
Downloaded by Diem Do (dothuydiem1990zzzz@gmail.com)
2. The parties so agree;
3. Where a contract is only able to be performed by a particular natural person
or juridical person having entered into the contract, and that particular natural
person dies or that juridical person ceases to exist.
4. The contract is canceled or unilaterally terminated;
5. The contract is not able to be performed because the subject matter of the
contract no longer exists;
6. The contract terminates as prescribed in Article 420 of the Civl Code of 2015;
7. Others circumstances as provided by law.
- According to Article 428 of Civil Code of 2015: Unilateral termination of
performance of contracts
1. A party has the right to terminate unilaterally the performance of a contract
without any compensation for damage when a party violates its obligations
seriously if so agreed by the parties or so provided by law.
2. A party terminating unilaterally the performance of a contract must notify the
other party immediately of its termination of the contract and must compensate
if the failure to notify causes damage.
3. Where the performance of a contract is terminated unilaterally, it shall
terminate from the time when the other party is notified of the termination.
In such case, the parties are not required to continue to perform their
obligations, except for agreement on fines for violations, compensation for
damage
and
settlement
of
di
Downloaded by Diem Do (dothuydiem1990zzzz@gmail.com)
sputes. A party which has already performed its obligation may demand the other party to
make payment for the performed obligation.
4. The aggrieved party shall receive a compensation for damage caused by the
improper performance of obligation by the violating party.
5. If a contract is terminated unilaterally without any basis prescribed in Clause
1 of Article 428 of the Civil Code of 2015, the party terminating unilaterally
the performance of the contract shall be deemed to be the violating party and
must perform civil liability as prescribed in Article 428 of the Civil Code of
2015 and relevant laws.
6. What are the basic contents of the contract? What is a contract
addendum? What is the value of the contract addendum compared to
the main contract?
According to Article 398 of Civil Code of 2015: Contents of contracts
1. The contracting parties may agree on the contents of a contract.
2. A contract may have the following contents:
a) Subject matter of the contract;
b) Quantity and quality;
c) Price and method of payment;
d) Time limit, place and method of performing the contract;
đ) Rights and obligations of the parties;
e) Liability for breach of contract;
g) Methods of settlement of disputes.
- Contract addendum: Contract addendum is a document detailing a number of
terms or amending and supplementing the main contract. There are 2 types of
contract addendum
+ Explanatory appendix: used to clarify the main contract content and must not be
contrary to the main contract
+ Contract amendment addendum: used to edit the content of the contract, if there
is a difference between the main contract and the appendix, the appendix is used.
Page 6 of 12
Downloaded by Diem Do (dothuydiem1990zzzz@gmail.com)
- The addendum to the contract is not a sub-contract: A sub-contract is a
separate contract that is separate from the main contract and whose effect
depends on the main contract. A contract addendum is a part of a contract,
its effect is the same as that of the contract it is attached to. The parties to the
contract must also perform the contents in the appendix together with other
contents in the contract.
According to Article 403 of Civil Code of 2015: Appendices to contracts
1. Appendices providing details on certain terms and conditions of a contract
may be attached to the contract. The appendices shall have the same
effectiveness as the contract. The contents of the appendices shall not
contradict the contents of the contract.
2. If the terms and conditions of the appendices contradict the terms and
conditions of the contract, such terms and conditions of the appendices shall
be ineffective, unless otherwise agreed. If the parties agree that the terms and
conditions of the appendices contradict the terms and conditions of the
contract, the terms and conditions of the contract which are contradicted shall
be dee med to have been amended.
8. Analyze the consequences of contract cancellation?
-According to Article 423 of Civil Code of 2015: Consequences of
cancellation of contracts
A party has the right to cancel a contract without having to compensate for
damage in the following cases:
i) The other party breaches the contract, which is a condition for contract
cancellation as agreed upon by the parties;
ii) The other party commits a serious breach of contractual obligations;
iii) The other party commits a serious breach of contractual obligations;
c/ Other cases as prescribed by a law.
Note: Serious breach means one party's failure to properly perform his/her/its
obligation to an extent that the other party cannot achieve the purpose of entry
into the contract
The contract-cancelling party shall immediately notify the cancellation to the
other party or it shall compensate for any damage caused by the failure to
notify.
-According to Article 425 of Civil Code of 2015: Cancellation of contracts due
to inability to perform
In case the obligor is unable to perform part or all of his/her/its obligation, thus
making the oblige unable to achieve his/her/its objective, the obligee has the
right to cancel the contract and to claim compensation for damage.
-According to Article 426 of Civil Code of 2015: Cancellation of contracts in
case of loss of or damage to property
In case the property being the object of the contract is lost or damaged due to
Downloaded by Diem Do (dothuydiem1990zzzz@gmail.com)
the fault of a party and cannot be returned or compensated with another
property or cannot be repaired or replaced with another property of the same
type, the other party has the right to cancel the contract.
The breaching party shall pay a monetary compensation equal to the value of
the lost or damaged property, unless otherwise agreed upon or prescribed in
clause 2, clause 3 Article 351 and Article 363 The Civil Code 2015.
Slide 31
-According to Article 427 of Civil Code of 2015: Consequences of
cancellation of contracts
1. When a contract is cancelled, it shall cease to be valid from the time of its
entry and the parties do not have to perform the obligations already agreed
upon, except for the agreements on penalties for breach of contract,
compensation and dispute settlement.
2. The parties shall return to each other what they have received after deducting
reasonable expenses arising in the contract performance and expenses for
property preservation and development.
The return shall be made in kind. Objects which cannot be returned in kind may
be valued in money for refund.
In case both parties are obliged to return objects, the return shall be made at the
same time, unless otherwise agreed upon or prescribed by law.
10. Analyze the principles of contract interpretation?
Downloaded by Diem Do (dothuydiem1990zzzz@gmail.com)
-According to Article 121 of Civil Code of 2015: Interpretation of civil
trans actions
1. In cases where a civil transaction may be understood in different ways,
such transaction must be interpreted in the following order:
a) In accordance with the real intention of the parties at the time when the
transaction was entered into;
b) In a manner consistent with the objective of the transaction;
c) In accordance with the customary practice of the place where the
transaction was entered into.
2. The interpretation of civil contracts shall comply with the provisions of
Article 404 of the Civil Code of 2015 and the interpretation of the contents
of testaments shall comply with the provisions of Article 648 of the Civil
Code of 2015.
- According to Article 404 of Civil Code of 2015: Interpretation of
contracts
1. Where a contract contains terms and conditions which are unclear, the
interpretation of such terms and conditions shall be based not only on the
wording of the contract but also on the mutual intentions of the parties during
the process prior to and after the time of establishment and performance of the
contract.
2. Where a term of a contract may be interpreted in different ways, it shall be
interpreted in the way which, when effective, will best benefit the parties.
3. Where the wording of a contract may be interpreted in different ways, such
wording shall be interpreted in the way most appropriate to the nature of the
contract.
4. Where a contract contains a term or wording which is difficult to understand,
such term or wording shall be interpreted in accordance with the customary
practice of the place where the contract was entered into.
5. Where there is a conflict between the mutual intentions of the parties and the
wording used in the contract, the mutual intentions of the parties shall be used
in order to interpret the contract.
6. Where the party in a powerful position inserts into the contract contents
which are disadvantageous to the party in a weak position, the contract shall be
interpreted in a manner favoring the party in a weak position.
Downloaded by Diem Do (dothuydiem1990zzzz@gmail.com)
11.Analyze the regulations on acceptance of contract proposal and
issues to be noted.
-According to Article 393 of Civil Code of 2015: Acceptance of offers to
enter into contracts
1. Acceptance of an offer to enter into a contract means a reply by the
offeree to the offeror accepting the entire contents of the offer.
2. The silence of the offeree shall not mean an acceptance of the offer
to enter into the contract, unless it is agreed upon or habit
established by the parties.
* Issues to be noted:
-According to Article 394 of Civil Code of 2015: Time limits for
acceptance of offers to enter into civil contracts
1. Where an offeror has specified a time limit for reply, a reply accepting
shall only be effective if it is made within that time limit. If the offeror
receives an acceptance after the time limit has expired, such acceptance
shall be deemed to be a new offer from the party which is late in replying.
- When the offeror does not specify the time limit for reply, the reply
accepting shall only be effective if it is made within reasonable period.
2. If a notice of acceptance of an offer to enter into a contract arrives late for
objective reasons which the offeror knows or should know, such notice
shall still be effective, unless the offeror immediately replies that it does
not agree with such acceptance by the offeree.
3. Where the parties communicate directly, including conversations by
telephone or other means of communication, the offeree must reply
immediately as to whether or not it will accept, except where there is an
agreement on the time limit for reply.
-
According to Article 395 and Article 396 of the Civil Code of 2015:
Cases where offeror/offeree dies or lacks of legal capacity or has
limited cognition and behavior control
Where the offeror/ offeree dies or lacks of legal capacity or has limited
cognition and behavior control after the offeree has replied accepting the
offer, the offer to enter into a contract shall still be valid, unless the
contents of contract is associated with the personal identity of the offeror.
- According to Article 397 of Civil Code of 2015: Withdrawal of
notice of acceptance to enter into contract
The offeree may withdraw notice of acceptance to enter into a contract if
such notice arrives prior to or at the same time as the offeror receives the
reply accepting the offer to enter into a contract.
Downloaded by Diem Do (dothuydiem1990zzzz@gmail.com)