国际商法ContractFormationppt讲述.ppt

III 建立民事法律关系的意图 (Intention to Create Legal Relations) *During the negotiation stage, 在磋商阶段 The words ‘Subject to Contract (以合同为准)’ amounts to a strong presumption that NO immediately binding contract is intended. 　推定无合同，不受法律约束 The words ‘Personal Agreement (个人同意)’ does NOT affect the document’s legal position. 　推定有合同，应受法律约束 IV 对价(Consideration) What is Consideration? 对价，即各方当事人给予或同意给予对方当事人的，通常是支付价款或承诺某种行为作回报。 CONSIDERATION is what each party gives or agrees to give to the other, usually Payment or a Promise to do sth. in return. IV 对价(Consideration) What is Consideration? 法律意义上有价值的对价： 可能是一方当事人增进了某种权利(right)、利益(interest)、利润(profit)或益处(benefit)； 可能是另一方当事人承受或承担某种不作为(forbearance)、伤害(detriment)、损失(loss)或责任(responsibility)。 A Valid CONSIDERATION in the sense of the law may consist: EITHER in some Right, Interest, Profit or Benefit accruing to one party; OR in some Forbearance, Detriment, Loss or Responsibility given, suffered or undertaken by the other. IV 对价(Consideration) Types of Consideration Valid Consideration (有效对价) Performed After the Other’s Promise (对方承诺后履行) Executed consideration (已履行对价) A Performed Act in return for a promise. Executory consideration (待履行对价) A Promise given for a promise. IV 对价(Consideration) Types of Consideration Invalid Consideration (无效对价) Performed Before the Other’s Promise (对方承诺前履行) Past consideration (过期对价) What has already been done at the time the promise is made, EXCEPT THAT there is an Implied Promise. * Implied Promise (暗示承诺)— The works were requested by the promisor; 承诺人要求完成工作 The parties MUST have understood assumed that they would be paid for. 双方当事人必须都了解并接受工作应当支付价款。 IV 对价(Consideration) Adequacy Sufficiency Consideration NEED NOT be adequate Adequate: equal in value to the consideration received in return. 对价不必等值 Consideration MUST be sufficient Sufficient: having some identifiable value in order to be capable in law of being regarded as valid conside