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1
、
Functions of law:
①
Keep the peace
②
Enforcing standards of
conduct and maintain order
③
Facilitating planning
④
Promoting social justice
2
、
Definition of
contract( in China ):
A contract shall
be an agreement whereby the parties establish,
change or terminate their civil
relationship.
3
、
Offer:
Definition: offer is a proposal by a
person to another indicating an intention to enter
into a contract
under specific terms.
Requirements for an offer:
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①
Intention
：订立合同的意愿
the offer
’
s words
must give the offeree
assurance that a
binding agreement is intended.
②
Definiteness:
明确具体
indicates
or
describes
the
goods
or
services,
expressly
or
implicitly
specifies the quantity and the price
for the goods.
③
Communication:
传到到受要约人
an offer becomes
effective when it reaches the offeree.
4
、
Superior force:
不可抗力
Is a clause
in contracts which essentially frees both parties
from liability or obligation when an
extraordinary event or circumstance
beyond the control of the parties prevents one or
both parties
from fulfilling their
obligations under the contract.
Elements: externality,
unpredictability, irresistibility.
5
、
Damages:
Compensatory damages provide a
plaintiff with the monetary amount necessary to
replace what
was lost and nothing more.
To
place
the
claimant
in
the
position
in
which
he
would
have
been
had
the
contract
not
been
breached.
Direct losses,
consequential losses, pain and suffering,
liquidated damages(
约定损害赔偿
).
6
、
Fundamental
breach:
根本违约
A
breach of contract committed by one of the parties
is fundamental if it results in such detriment
to the other party as substantially to
deprive him of what he is entitled to expect under
the contract.
一方当事人违反合同的结果，
如
使另一方当事人蒙受损害，
以至于实际上剥夺了他根据合同
规定
有权期待得到的东西，即为根本违反合同。
7
、
Remedies for
the buyers
Buyer
’
s right to
compel performance:
要求实际履行
the buyer may require performance by
the
seller
of
his
obligations.
If
the
goods
do
not
conform
with
the
contract,
the
buyer
may
require
delivery
of
substitute
goods
only
if
the
lack
of
conformity
constitutes
a
fundamental
breach
of
contract; If the goods do not conform
with the contract, the buyer may require the
seller to remedy
the lack of conformity
by repair.
Buyer
’
s right to
avoid the contract:
撤销合同
the buyer
may declare the contract
avoided
：
the
seller commits a fundamental breach or
The buyer gives the seller a Nachfrist notice and
the seller
rejects it or does not
perform within the period it specifies.
Remedy
of
reduction
of
price:
减价赔偿
If
the
goods
do
not
conform
with
the
contract
and
whether
or
not
the
price
has
already
been
paid,
the
buyer
may
reduce
the
price
in
the
same
proportion as the value
that the goods actually delivered had at the time
of the delivery bears to
the value that
conforming goods would have had at that time.
Price reduction applies to
the special situation:
The buyer
accepts goods
The seller must not be
responsible for the nonconformity
实际所交货
物交货时的价格
/
符合合同规定的货物交货时的价格
Non-conformity of part of the
goods:
部分不符
(1)If
the seller delivers only a part of the goods
or if only a part of the goods
delivered is in conformity with the contract,
articles 46-50 apply in
respect of the
part which is missing or which does not conform.
(2)The buyer may declare
the
contract avoided in its entirety
only if the failure to make delivery completely or
inconformity
with the contract amounts
to a fundamental breach of the contract.
Early delivery;
excess quantity:
提前交货，超额交货
(1)if
the seller delivers the goods before
the date fixed, the buyer
may take delivery or refuse to take
delivery. (2)if
the seller
delivers a
quantity of goods greater
than that provided for in the
contract,
the buyer
may take delivery or
refuse to take delivery of the excess
quantity. If the buyer takes delivery of all or
part of the excess
quantity, he must
pay for it at the contract rate.
8
、
Trademarks:
①
Definition: A sign or
symbol that distinguishes one
party
’
s goods or services
from another. (True
trademark, trade
name, service mark, collective mark, certification
mark)
②
Acquiring trademarks:
Priority of use (USA,EN,CAN)
Priority of registration
③
Registration criteria:
distinctive, not be generic or descriptive.
9
、
Patent
①
Definition: a right granted
to an inventor by a national government to
exclusively make, use, and
sell an
invention for a certain period of time.
②
Why
grant
patent?
on
private
side:
to
protect
private
property;
on
public
side:
to
encourage
invention and
industrial development
③
Subject matter:
Inventions(20 years), Utility models(20 years),
Designs(10 years).
10
、
Right of
priority(Paris Convention):
National
treatment:
a member country can not
discriminate against foreigners in granting patent
or trademark protection.
Compulsory license:
it
grants patent or trademark rights to third parties
if the patent or trademark
owner does
not use it.
Right of priority:
an applicant who has filed for
protection in one member country shall enjoin a
right of priority of 12 months for
patent for inventions and utility model, 6 months
for patent for
patent for design and
for trademarks to file in another member state.