国际商法英文笔记知识分享.pdf

__________________________________________________ Lesson 1 I. Obligation and contract A. Definition An obligation is a legal link between two persons : according to one becomes the debtor and a creditor. There are two kinds of obligations: - A binding obligation: something you need to comply with - A non-binding obligation: you may finish the contract without any consequences. All contracts (legal relationship) are based on the free will. Obligation are an undertaking to give or to not give, to do or to do not do. Contract is a legal act, which materialised the exchange of two consents. The first thing you have to do is to check by the legal regime, which is applicable: is it the Chinese or the French law. You have to wonder what the date of effectiveness of the contract. A contract can be materialised by any means: oral, emails. Everything is a matter of evidence in a contractual relationship. The consent should be clear without any reserve or without any conditions. If you undertake to do something in a contract you are the debtor and the other party is a creditor. If you have several creditors it can become complicated: if they are three buyers for your house. Who is the real creditor? In this case the contractors can be jointly liable by obligation. For instance if three people buy a house and one of them is doing a renovation: the three contractors are jointly liable by obligation. B. Defining the right party Defining the proper party is a big issue. For example when you are renting a house, you have to check who is the real landlord. Relative effect of the contract: contract only binds the people who have signed the contract: the other people are called third party. If you are signing a contract with a subsidiary of the holding, which has no money: the subsidiary may not be able to respect the contract. Indeed