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
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
（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
Legal rules Based on
general
principles
Category of Private law;
laws
Public law
Basic
sources
Codes;
Common Law
Based on
specific
circumstances
common law;
equity
Case law
Civil Law
Use of case
law as
precedent
Fact finder
Respected
Judge
Substantial Law
Common Law
Required
Jury
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
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Supreme People’s Court
Higher People’s Courts
Intermediate People’s Courts
Local People’s Courts
Special Courts
Two- tiered appellate system
法律英语
2016/3/18
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
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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
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Written contract
Oral contract
Valid contract
Void contract
Voidable contract
Unenforceable contract
Contract Law
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Civil Law system - Civil Codes
Common Law system – Precedence
China - Contract Law 1999
International - CISG, PICC, Custom
Application of PICC
1) 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
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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

1)
2)
3)
China:
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.
Limited capacity - A minor aged 10 or over
No capacity - A minor under the age of 10
or a person with mental incompetence
Contractual capacity
1) 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 litem
b) 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 goods
2.
A minor needs the necessary when the contract is
signed
3.
There is no other alternative to fulfill such needs.

Contractual Capacity

1)
2)
Standard:
Age
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
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

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
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Revocation,
Counteroffer
Rejection
Lapse of time – a period fixed in the offer or
reasonable time.
Revocation of offer by offeror
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

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

(1)
(2)
An offer can not be revoked:
the offeror indicated a fixed time for
acceptance or otherwise explicitly states
that the offer is irrevocable;
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.

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

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

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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

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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