广外法律英语重点

试卷上的法英

T or F:（2‘ X 10 =30）

1. UNIDROIThas ratified several widely accepted legal codes for international business, including the CISG F UNCITRAL

2. The CISG only governs the applicability, the validity and forming of a contract F

3. The German, advertisements addressed to the public in general are invitations to deal T

4. Under the CISG an acceptance is not effective upon dispatch, but is effective when it reaches the offerorT

5. In an international sales transaction governed by the CISG, an acceptance containing new terms that do not materially alter the terms of the offer become a counteroffer F

6. Under the CISG, if the goods are nonconforming, the buyer must give notice to the seller at the latest within a period of two year. T

7. The buyer’s right of avoidance is not effective until the seller is given notice. T

8. The CISG provides that a breaching party shall be liable for damages in an amount sufficient to make the injured party whole in the event of a breach T

9. Under the CISG, if goods delivered to the buyer are nonconforming, although the delivery is prior to the delivery date, the seller has no chance to remedyF

10. Under the CISG, the right to avoid the contract ends when the other party provides adequate assurance that it will perform F

Blank Filling:(3’ X 10=30) 1. The CISG applies to contracts of sale of goods between parties whose places of business are in different countries.

2. the parol evidence rule states that where the parties have entered into a written sales contract that is intended to be the final expression of the parties’ agreement, the written agreement may not be contradicted by prior agreement or contemporaneous oral agreement

3. An offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. The offeree’s dispatch of acceptances cuts off the offeror’s right to revoke the offer

4. The Mirror Imagerule requires that an offeree respond to an offer with an acceptance that is definite and unconditional, and that matches the terms of the offer exactly and unequivocally.

5. The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract

6. List at least four remedies for breach of contract under the CISG:

(1) avoidance of the contracts,

(2) sellers’ right to remedy or cure,

(3) sellers’ additional time to perform,

(4) price reduction,

(5) money damages,

(6) specific performance.

7. Consequentialdamages may be recovered by the nonbreaching party when the breaching party knew the special circumstances will cause the nonbreaching party to suffer an additional loss.

8. If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to for transmission to the buyer.

9. Occurs when one party clearly sees that the other party to the contract either will not perform a substantial part of its obligations or that it will commit a fundamental breach.

10. In the United States, a party to a contract that is prevented from performing may attempt to be excused under the doctrine of commercial frustration under English law

Multiple Choices:(4’ X 4=16)

Translation:(7’ X 2=14)

1. (1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance.（向一个或一个以上特定的人提出的订立合同的建议，如果十分确定并且表明发价人在得到接受时承受约束的意旨，即构成邀约。）

(2) A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation （邀请） to make offers, unless the contrary is clearly indicated by the person making the proposal. （非向一个或一个以上特定的人提出的建议，仅应视为邀请做出发价，除非提出建议的人明确地表示相反的意向。）

2. The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.

买方必须在按情况实际可行的最短时间内检验货物或由他人检验货物。

The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. 买方对货

物不符合同，必须在发现或理应发现不符情形后一段合理时间内通知卖方，说明不符合同情形的性质，否则就丧失声称货物不符合同的权利。

3. Except where the parties have agreed otherwise, the goods do not conform （符合） with the contract unless they: （除双方当事人业已另有协议外，货物除非符合以下规定，否则即为与合同不符

are fit for any particular purpose expressly or impliedly （隐含的） made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller’s skill and judgement; 货物适用于订立合同时曾明示或默示地通知卖方的任何特定目的，除非情况表明买方并不依赖卖方的技能和判断力，或者这种依赖对他是不合理的；

1.

a. G.E. offer a standard-form purchase order for one press

b. S.P. make an order confirmation

c. Which containing the forum selection clause & choice of law clauses

d. signed ＝“accepted”

a．binding contract created

Legal issue:

----Where the case should be heard.

----whether it is reasonable to apply the forum selection clause in this case. Reasoning:

a. Plaintiff’s claims:

the forum selection clause is not exclusive or mandatory.

It would be unreasonable to enforce the clause here.

Ohio is the reasonable venue for the suit.

b. Judge’s ruling:

wording of the clause– “all”, “shall

----German court jurisdiction is exclusive and mandatory

unreasonable, unjust enforcement / invalid clause

G.E. was unlikely to be exploited or unfairly treated

Germany has the closest connection with this contract.

Decision:

Enforcement of the forum selection clause is not unreasonable.Affirmed.

2. Facts:

Legal issue:

General Issue----What is the applicable law of the case, the CISG or state law？ Specific Issues----

(1) Whether the contract is between parties whose places of business are in different countries

(2) Whether the parties has opt out the CISG effectively?

(3)Whether the CISG preempts state law? (Whether the federal court has the jurisdiction over this case?)

Reasoning:

1、Place of business requirement

2、Choice of law clause

3. Federal preemption

Decision:

3. 之真假红豆证是否应该强制执行 Facts:

a. b. c. d. e. Colombian request Buyer(Cometals) for a C/O issued by an EEC chamber of Commerce

f. Plaintiff: D说红豆质量不好拒绝接受。诉讼的目的是让他们的合同由法院强制执行,这样买家可以接受货物和付款。

g. Defendant:Their agreement should be declared invalid, unenforceable.他们的协议应该被宣布无效,无法执行。

Legal issue:

Whether the court should enforce the contract between C and T.

----Whether the contract between C and T was void or not.

----Whether the contract between C and T was illegal.

Reasoning:

a. Legal principles: Conflict of law/ applicable law ---- the law of New York or the Netherlands?

The court supports Tarbert’s contention that the law of N.Y. is applicable in this case according to the rule of the closest relationship.

b. The contract between Tarbert and Cometal in this case is illegal.The contract is illegal because of the existence of the false certificate of origin.

c. Separable or inseparable part

(1) Maxims / public policy / universal law

(2) Plaintiff maintains that illegality is “non-essential” and “separable”. Therefore, only portion of the contract is unenforceable.

The court’s opinion is that illegality is an essential and inseparable ingredient of the

negotiations of the parties. The whole contract should be unenforceable.

Decision:

Unenforceable、void、illegal

4. Facts:

a. Buyer(Chateau)

Sabate argued--- The case should be heard in France according to the forum selection clause in the invoice sent to Chateau.

Chateau claimed--- The verbal contract had been concluded and the later forum selection clause was not part of it.

Legal issue:

General issue----Where should the case be heard?

Specific issue----Whether the forum selection clause in the invoices was part of the contract

----Whether the oral agreements between two parties were sufficient to create a binding verbal contract.

----Whether the unilateral attempt of Sabate by adding a new term was effective to modify the verbal contract.

Reasoning:

a. The relevant rule: the CISG

b. Specific reasoning steps:

Judge reasons out that the parties had concluded a verbal contract.(---Art. 11/14/18/23)

Judge points out the wrong logic of Sabate’s contention by clarifying the difference between Art. 29 and Art. 19.

Judge emphasizes that Sabate’s adding forum selection clause in the invoices is the unilateral attempt to modify the verbal contract of the parties, and Chateau’s failure to object to such attempt should not be taken as an agreement. (---Art.29 / 8) Decision:

The verbal contract for the purchase of corks was vaild and binding.

The attempt by the seller to later include a new and material term in the invoices was not effective.

The buyer did not assent to the new term simply by receiving and paying for the goods.

Reserved and remanded.

5. Legal issue:

Where the case should be arbitrated?

---1.Whether the covering letter purporting to exclude parts of the Russian contract was ineffective as a rejection of the March offer?

---2.Whether F’s retention of the letter and its acceptance of C’s performance

amounted to an acceptance?

---3.If the contract is valid, whether the case should be arbitrated in Moscow？ Reasoning:

（1）Plaintiff’sClaim：The covering letter purporting to exclude parts of the Russian contract was a rejection of the March offer.

Defendant’sClaim：The Memorandum Agreement dated March which it signed and sent to Filanto was an offer.

Judge’s ruling：In light of the parties’ course of dealing, Filanto had a duty timely to inform its objection to the incorporation by reference of the Russian Contract, otherwise, it was bound to arbitrate.There was indeed an agreement to arbitrate between these parties.

（2）Plaintiff’s Claim：It’s effective to object to the incorporation by reference of the Russian Contract.

Defendant’sClaim：F’s retention of the letter and acceptance of C’s performance under the Agreement…should be deemed as an acceptance

Judge’s ruling：Chilewich had commenced its performance under the agreement, F knowing that but fails to notify the offeror of its objection within a reasonable time and was willing to accepting C’s performance.Under certain circumstance, plaintiff should be deeded to have assented to those terms.

（3）Plaintiff’s Claim：The court should order arbitration to proceed in this judicial district

Defendant’sClaim：The case must be arbitrated in Moscow.

Judge’s ruling：A. The chosen forum in this case does have a reasonable relation to the contract at issue. B. There is no reason to believe that the Chamber of Commerce in Moscow can not provide fair justice to these litigants

一 T or F

1. CISG, adopted by UNIDROIT, came into force on January 1, 1988.(F)

2.CISG is applicable to Commercial sale of goods between parties whose places of business are in different countries.(F)

3.Stocks, vessels, aircraft and ships are excluded from the CISG.(Y)

4.CISG became effective in China in January 1, 1988（Y）

5.In most legal systems, contracts that violate the laws of a state or nation are void. .(F)

6.A valid contract includes 4 elements: mutual assent, legally sufficient consideration, legal capacity, not for illegal purposes. （Y）

7.A contract is not formed until the offer is accepted by the offeree. （Y）

8.Under CISG, an acceptance is effective when it reaches the offeror. （Y） a. An offer becomes effective when the offeror dispatches it towards offeree. F

b. Before the offer reaches the offeree, it can be revoked by the offeror at will. F

c. An irrevocable offer cannot be withdrawn. F

d. Even if an offer is irrevocable, it may be withdrawn. T

e. After an offer reaches the offeree, it’s unlikely to make it invalid. F

本文来源：https://www.bwwdw.com/article/myb4.html