INTRODUCTION TO LAW

Vocab:
-state and law: nhà nước và luật pháp
-civil law in Vietnam: luật dân sự
-public international law: công pháp quốc tế
- private international law: tư pháp quốc tế
-remedy: chế tài (=punishment)
-contract: hợp đồng, giao kèo, khế ước
-validity: giá trị pháp lí
-framework: cơ cấu tổ chức
- civil code: bộ luật dân sự
-civil law: pháp luật dân sự
-law on commerce: luật thương mại
-law on promulgation of legal documents: luật ban hành văn bản quy phạm pháp
luật
-law on treaties: luật điều ước quốc tế
-International treaties: điều ước quốc tế
- CISG: convention on contract for international sale of goods: công ước quốc tế
Form of resolution of disputes: giải quyết tranh chấp
1. Negotiation between the parties.: thương lượng
2. Mediation between the parties by a body, organization or individual selected by
parties to act as the meditator: hòa giải
3. Resolution by the Arbitration (trọng tài) (not deal with commercial issue) or
the Court (tòa án) :
 CHAPTER 1: STATE AND LAW
I. Definition of law:
+defined as a body of rules
+created by the state
+binding within its jurisdiction (ràng buộc trong quyền hạn xét xử)
+enforced with the authority of the state through the use of sanctions (thực thi với
các cơ quan nhà nước có quyền sử dụng các biện pháp trừng phạt)
+ National assembly: Quoc hoi
II. Sources of law in Vietnam:
-Legislation: also known as the acts, are forms of law that can provide the
authority to make regulations (pháp chế: van ban luat)
+Constitution (hiến pháp): the law of the law
*a collection of laws and regulations creating a ruling document for a government
*promulgated by parliament.
first: 1946 by Uncle Ho
Now: 2013
- The basis law/ supreme law of the country

+Acts (luật), codes (bộ luật)

-Delegated legislation (van ban duoi luat) is law made by some person or body
other than parliament, but with the permission of parliament.
+Ordinances (pháp lệnh) : (highest)
*a law or rule made by commitee (a government or authority, not by the state
*used to adjust or regulate
*unstable, uncertain  can be updated into law when it’s stable
Example: Rezoning of property: zoning ordinance Annexation of property. Text
amendments to local zoning or land development regulations.
+Decrees (nghị định): an official statement that something must happen (lệnh)
*made by government, used to provide guidance, details about law
* main function: to implement the law, used to provide guidance, details about law
Ex: degree implement law on commerce,...
+Circulars: (thông tư) (lowest)
*used to guide and explain in detail about general rules of legal documents
- guide detail about dregree
*promulgated by the state, competent (có thẩm quyền) agencies and individuals:
executive judge of people’s supreme court (tòa án nhân dân tối cao) , chief of
people’s procuracy, Minister, Head of minesterial – level agencies
the lowest court: people district court (tòa án nhân dân cấp huyện)
the higher: provincial court ( tòa án nd cấp tỉnh)
the higher: High court
the highest: supreme court
1. Minister (bộ trưởng): related to joint circular (thông tư liên tịch)
-Ministry of education and trainning (bộ GD&ĐT)
-Ministry of foreign fair (bộ ngoại giao)
-Ministry of finance
-Ministry of health……
2. Head(s) of the ministerial agencies (cơ quan ngang bộ):
3. Office of the government (văn phòng chính phủ)
4. Government Inspectorate (thanh ra chính phủ)
5. Head of the supreme people’s procuracy (toàn án nhân dân tối cao)
+Decisions: ban hành các hiến pháp để thực hiện chủ trương nhà nước
-issued by the prime minister, president, people committees of province, districts,
communes…
6. Unconstitution: Vi hiến: if legal document đi trái với Hiến pháp
EX: Mỗi người chỉ có 1 chiếc xe máy -> Trong Hiến pháp: Mọi người can buy
everything they want -> unconstitution
7. Prosecute: Khởi tố:
8. Procuracy: Viện kiểm sát
9. Official letter: Công văn: not the legal document
Notes:
LAW  DECREE  CIRCULAR: all are important, follow the procedure if
people want to find out solution
III. Categories of law:
-criminal law and civil law: (xem slide)
- prosecuter: kiểm sát viên
- accused/defendant: bị cáo
- plaintiff: nguyên đơn/bị đơn

Private law Public law

-between ordinary people in -between government organizations and
everyday transactions (you and me, ordinary citizens (also between different
businesses and companies) government organizations)

Both are concerned with relationships

Substantive law (luật nội dung) Procedural law (luật hình thức)
-define rights and obligations -establish processes for resolving
disputes (tranh chấp)
-handle the legal relationship between
individuals (or individuals and the state) - Civil Procedure Law
-kind of punishment someone may - Criminal Procedure Law
receive after their criminal trial
Ex: using someone’s information or
-define types of crimes and severity pictures wrongly without their
(mức độ nghiêm trọng) acceptance and it is widely spread on
social platforms afterwards. This has a
- Civil law, Commercial law, Law on
negative effect on their mental health 
enterprise,…
victims can sue for justice.
Ex: territory education law gives an
idea about right and obligation of a
learner

Common law Civil law

(thông luật/HTPL Anh Mỹ) Dân luật / HTPL
-used to describe legal systems (hệ -used to describe legal systems which
thống pháp luật) based on the English are based on old Roman Law (luật La
legal system Mã)
-part of the British Empire (đế quốc -built and consolidated (củng cố) in
Anh) France, 18th century.
-one of the unique features of the Essential features:
common law is that it is judge-made
-civil laws are a codified set of legal
law (phán xét tạo ra luật-đây là một
rules (tập hợp các quy tắc pháp lý được
thuật ngữ được sử dụng trong kinh
hệ thống hóa)
doanh)
-the codified law bears a binding for all.
-judgments of courts – resolve particular
There’s little scope for judge-made law
dispute of specific parties before court +
in civil courts. Yet, looking into the
stand as precedents for future disputes
practical aspect. The judges follow the
of similar nature.
precedents.
Precedent (tiền lệ): action, situation or
-writing of the legal scholars do have a
decision has already happened, can be
substantial influence on the courts
used as a reason why a similar action or
decision should be performed or made.
-huge impact on the world
Singapore, Malaysia, New Zealand, Europe, Russia, Mexico, Chile,
Australia, Canada, US, South Africa… Vietnam….
Case law: part of common law
-rules of law announced in court
decisions
-consist of interpretations of statutes
(diễn giải các quy chế), regulations and
provisions in the constitution.
“The doctrine of Stare decisis”-a Latin
phrase meaning “to stand on decided
cases”. Stare decisis has 2 aspects:
1. A court shouldn’t overturn (đảo
ngược) its own precedents unless there
is a compelling reason to do so
2. Decisions made by a higher court are
binding (ràng buộc) on lower courts
-Both are terms used to describe legal systems
A legal system: is the way the law is structured and operated in a country
-England and Vietnam have different legal systems.
-Case law is also commonly used civil law countries now, including Vietnam

Vocab:
-violate: vi phạm
-be liable to a fine of from…: chịu 1 khoản tiền
-face a penalty
-everyday transactions: giao dịch hằng ngày
-codify: hệ thống hóa
- Probation: cải tạo không giam giữ
PROS AND CONS OF USING PRECEDENTS:
Pros Cons
-make the process of prosecution much -sophisticated system
more straightforward and effective 
-segregation but equality
time-saving
-conflict and confusion
-provide a more realistic way of judging
different cases instead of analyzing the -rigidity (sự lạnh nhạt)inflexibility
law + Complex: system complicated
-prevent the mistakes, help the judgment + some precedents: out-dated - > rigid
more convincing, create consistency and (not evry easy to change -> khong co
uniformity (tính đồng đều) own decision) -> not suitable in present
-fairness time
-predictability and transparency + No rooms for new things
-fill the gap for the current law +
+save time: if use precedent: have same
output, same previous cash
+ Creating comsistency: make the
system,uniform
+Enhance justice in the legal system
+Flexible: dealing with new made law
+ More predictable: transparent, can se
the output

ROLES OF PRECEDENTS IN VIETNAM:

-assist judge in their judgment
-make judgment more convincing
-not compulsory
- precedent in VN is NOT legal document (based on article 4: law on
promulgation of law)
- resoure of law but not legal document

-> neu ko co
- to apply when there is no law governing that situation
- still have obligation -> limited
LEGAL NORM: (quy phạm pháp luật)
-a mandatory rule of social behavior established by the state
-small part of law
Elements of a legal norm:
-Hypothesis (giả định): describes the circumstances in which the disposition (sự
sắp xếp, định đoạt) or sanction (sự trừng phạt) come into action.
-Who? In which circumstances/situation?  background information and
assumtion of this situation
+independent and dependent variables (các biến độc lập và phụ thuộc) are parts of
hypothesis.
*an independent variable (1) stands on its own and is not changed by other
variables.
*the dependent variable (2) depends on other factors.
 (1) can cause a change in (2) but (2) cannot cause a change in (1)
Ex: How does the amount of makeup one applies affect how clear their skin is?
(Mức độ trang của một người sẽ ảnh hưởng ntn đến làn da trắng sáng của họ)
 (1) is makeup and (2) is the skin
-Disposition: indicates the rights and duties of participants in relations arising
under the circumstances envisioned (mường tượng/hình dung) in the hypothesis
(quy định)
What should/must/not allowed the parties do? Go against disposition 
Sanction
+the court’s final determination of the case at issue
+act of transferring of surrendering a piece of property (hành vi chuyển nhượng 1p
tài sản) to another person by way of a will or deed (chuyển nhượng, giao tài sản
cho người khác = di chúc, chứng thư)
Ex: husband and wife want to divorce, they have to submit all of the necessary
paperwork. The judge reviews the paperwork and signs off on it, then marks the
case as “disposed”
-Sanction: defines the consequences for persons who violate the prescriptions of a
particular norm (xđ hậu quả đối với người vi phạm quy định của quy tắc cụ thể)
(chế tài)
-more popular in criminal law
Other meanings of sanction:
+give permission: “the authorities have only sanction 3 types of treatments for this
illness”. It means that only three treatments are allowed.
+punish a person: if you sanction a person (in your own country), it means to take
action against them to make them obey the law. Otherwise, you punish them for
disobedience.
Origin of State:

Vocab:
-primitive community/classless society: xã hội nguyên thủy/xã hội không giai cấp
-abstraction: sự trừu tượng
Seperation of powers: Học thuyết phân quyền
Doctrine: học thuyết
 - In VN: concentrated power: tập quyền

- Judicial power: quyền tư pháp

- executive power: quyền hành pháp (in US: the government )

- Legislative power: quyền lập pháp (in US: congress)
What are reasons of the birth of states?
-get closer to understand the state as a historical fact rather than as merely an
abstraction of political philosophy
-avoid some of the fallacious (sai lầm) thinking about the state
What is a state?
-special political organization
-protect the rights and interest of the ruling class (bảo vệ quyền và lợi ích của giai
cấp thống trị)
-maintain the stability of the society (duy trì sự ổn định của xã hội)
-have enforcement power (có quyền lực thực thi)
DISCUSSION:
1. Hypothesis (buyer discovers good are in damage) and disposition (be entitled
not to pay in full or pay a part  rights)
2. Hypothesis (a married man who lives with another as spouseillegal not
allowed to do), sanction (be imprisoned from 3 months up to 1 year)
3. Hypothesis (the value of the leased….received), disposition (be entitle to
demand damages)
SEPARATION OF POWERS:
 Legislative power: quyền lập pháp (power to make the law)
 Executive power: quyền hành pháp (power to administer the law)
 Judicial power: quyền tư pháp (power to interpret the law)
 CHAPTER 2: BUSINESS CONTRACT
I. FUNDAMENTALS OF A CONTRACT:
1. Definition of contract:
 Breach (sự vi phạm) is a legal term
 Termination=accomplishment.
 A contract is an agreement that can be enforced in court
 Civil contract includes agreement, parties (individual, organisation), civil
rights and obligations
2. Essence of contract:
 Legal validity: giá trị pháp lí
 Commitment: lời cam kết
-Amend: sửa đổi
3. Classification of contract:
 Bilateral and Unilateral contract (hợp đồng song vụ và đơn vụ)

Employment contract  bilateral contract

Sponsored by some organizations (related to money)  bilateral contract.
Unilateral contract is not recognized in VN (check lại)
Poster of missing cat or dog  hứa thưởng  not a contract
Child adoption contract  obligation to raise the child  child doesn’t have
obligation  unilateral contract.
Passed uni  parents bought house  unilateral contract.
 Principal and Ancillary contract (hợp đồng chính và hợp đồng phụ)

Principle contract=credit contract/loan contract

Acillary contract=mortgage contract
Mortgage contract depends on credit contract
 Contract for the benefit of a third person (hợp đồng lợi ích dành cho
người thứ 3)
Ex: divorceraise child (annual money)
Conditional contract (hợp đồng có điều kiện)
Ex: wwarranty contract
 II. COMMERCIAL CONTRACT: (hợp đồng thương mại)
Commercial law: article 2: parties: trader (main: company), organization or
individiuals (conducting commerce-related activities.
Street vendor  not a trader.
Form of company in VN: shared holding company/joint-stock company (cty
cổ phần), partnership company (công ty hợp danh-not popular in VN) 
trader
Students (not traders) can sign for commercial contract, everyone can
participate in commercial contract.
Objects of commercial contract: goods or service
 Which are following the goods under company law?
A. building
B. apartment (attached to land)
C. land
D. none of above
A, B are correct
-Land is not a good/property, C is incorrect
-Real estate doesn’t exist now but may be formed in the future.
buy use land right – quyen su dung dat
Form: Art 24 & Art 74-Law on Commerce
Hinh thuc cua hop dong

-Written form Ex: housing contract, apartment selling contract, real estate
contract, international sales of goods contract (hợp đồng xuất nhập khẩu)…
- Specific acts (không nói nhưng làm giữa đối tác)
Buy food at school, in the supermarket… verbal form
Choose food and make a payment (supermarket)contract

Article 74-Forms of service contracts

Another parts

Article 3.15 (email is a written form, a form of data messenger-article 3.5)

Zalo, messenger,… are also written form but there’re full of risks (lost)
Governing law: art 4-law on commerce
1. It means that commercial law would be first of the liable
2. Particular law/ specialised law (luật chuyên ngành)
Ex: land law, tax law, the law of enterprise (luật doanh nghiệp), insurance
law, law of real estate, investment law…
Law in VN considered as specialised law is also commercial activities
Specialised law  commercial law  civil code: three steps to apply the
law for conducting commercial activities in vietnam
VN doesn’t have law on sale of rice, specialized law
 Commercial law
1. Sales contract must be made in writing
False (article 24), process of applying law in VN

2. Franchise contract (hợp đồng nhượng quyền) must be made in writing

True (article 285), Vietnam law on commerc

3. Commercial contract is governed by the Commercial Law only

False (article 4)

4. The applicable law for the contract signed between two Vietnamese companies
could be the Chinese Law if the parties so decide.
False (article 5.2), there’s no foreign element here because they can only apply
foreign contract when having foreign elementsArticle 663 (civil code file)
1/ TH điều ước quốc tế mà VN là tv quy định việc áp dụng pháp luật nước ngoài, tập quán thương mại
quốc tế hoặc có quy định khác với quy định của luật này thì áp dụng quy định của điều ước quốc tế đó

III. OFFER AND ACCEPTANCE

 Offer + acceptance = contract
Forms:
-Offer + Acceptance=Contract
-Offer signed by both the seller and buyer=Contract
1. Offer: (chào hàng, đề nghị giao kết hợp đồng)
CISG: Công ước ....
Criteria for an offer
 (Hung, 2015)

Criteria for an offer:

Offeror: the one who sends the offer

Offeree: the one who receives the offer
Q1: When you send the proposal to the buyer, you’re the sellerif the buyer agree
with your proposal. Can you just tell them that you change your mind and don’t
want to go with the proposal anymore?
A1: The proposal here should be bound to the sellerwhen we send the offer to
the other, it means if the other (offeree) agreecontract informedkey
characteristic: the offer should be binding to the offerorintention to sign the
contract
Q2: Who is the offeree under Vietnamese law?
A2: there are two main parties: another determined party or the public.

Compare Vietnames law and CISG:

Similarity:
If someone sends an acceptance, you cannot reject
Differences:
Vietnamese law CISG
-no condition and no information about -Put another additional condition for the
the goods, quantity and the price that offer (a proposal is sufficiently definite
should be required under the definition if it indicates the goods….the price)
of Vietnamese law
Note: A proposal is to be considered as
the offer if it includes 3 information:
+goods
+quantity
+the price
-the second difference is the offeree: -the second difference is the offeree:
+the public (definitely opposite to +one or more specific person (or
another determined party because it’s another determined party are the
unspecified) same)name that person, know who
they are, what are they located

Ex: a company made an advertisement on the website and social media, they will
sale off the half price for the first 5 people loging in their new prodcut at 9 p.m. Is
it an offer or not?
Not a offer if CISG and offer if Vietnamese law (5 people are sent to the public)
Example in the album:
1/ The letter just ask informationinquiry (thư hỏi hàng)not a offer
Invitation to treat=negotiate
2/ Offer (CISG)
REMARKS:
-Inquiries
-Mass distribution of a catalogue of merchandise (phân phối hàng loạt danh mục
hàng hóa)
-Brochures (tài liệu quảng cáo)
-Advertisement
 Offer (Vietnamese law) and not a offer (CISG) because there are sent to the
public not to you
The following advertisement does not constitute an offer but an invitation to
negotiate with the seller
2. Withdrawal (rút lại/thu hồi) and revocation (hủy bỏ, hủy chào hàng)

Different in some situations

-Dispatches acceptance: công văn chấp nhận
CISG

-Vietnam civil codereach the email if you send by electronic devices, at the time
when the informationn arrives at your database, the offer reaches the offeree, they
don’t care whether you read it or not, as long as you press the bottom, email will
arrive at the inbox of the offereedeliverednot allowed to withdraw the offer
-Another example, today you send an offer by posttake several hours or serveral
days to reach the offeree, later hours you change your mind, you can send an email
and say you want to withdraw the offer just when it reaches the offeree faster than
the postallow to withdraw the offer.
-The time for revocation would be longer than the withdrawal
Ex: you send them the offer today, the offer actually arrived at the offeree
destination but it takes some times for them to accept the offer until they send an
acceptance back to youyou still have a right to revoke the offermore easier
for the offeror to revoke the offer.
-There are some restrictions of revocation:
Article 16.2:
-a) Ex: The validity of the offer may be 5 days or within the certain timecannot
revoke it because they set the time limit (nghĩa là không thể thu hồi trong khoảng
thời gian đó)
Or if the letter says this is an irrevocabe offer (means the offer cannot be
revoked)cannot revoke it
-You can still withraw if the offer is not allowed to be revoked but the condition
for withdrawal will change
b) even though the offer didn’t clearly say it’s irrevocable but the communication
between the offeror and the offeree made the offeree believe that this is irrevocable
offer.
2. Acceptance: (chấp nhận chào hàng, chấp nhận giao kí hợp đồng)

Article 393 civil code 2015:

“Acceptance of an offer to enter into a contract means a reply by the offeree
accepting the entire contents of the offer”
 accept the offer unconditionallynot allowed to change”mirror image”
rulewhat you see in the mirror is what you accept100% similarity
If anything is changinglead to the new offer (means you’re making the new offer
to the offeree)
CISG 19.1account for the offer, however it may not stop, the key characteristic
of the article 19 at the clause 2, (materially=significantly) means not every change
would be constituely a new offer, it may depend on the kind of the change here.
Major change means you change/alter the term materially and lead to the new
offer but if you change and it’s just a minor change, not significantmay
constitute an acceptance
CISG, it can be devided to 2 cases: major or minor change
Distinguish major and minor changerbased on CISG article 19.3
-price, payment, quality and quantity of the goods, place and time of the delivery,
extent of one party’s liability to the other or the settlement of disputesmajor
changes/alter the terms materially.
-if there’re any changes not relevant to the above changesmay be minor changes
Among other thingsmust be under consideration and consider carefully whether
they’re major changes or notthe court or the arbitration will decide
Ex: you send someone an offer, they reply to you that they agree with all the terms
but the languages of the offer should be both Vietnamese and English.
CISG, that change may be the minor change because it may not materially alter
the termsacceptance
Vietnam lawthat would be a new offer because you have changed the
termsdon’t care whether it’s major or minor change.
Ex: You send someone an offer and they reply to you if the offer you mention that
when the disputes between the parties arise, go to HCMC court of the people’s
court for the dispute settlementbut maybe court will take long time and it’s not
the prefered way to set the disputeshould go to the VN International Arbitration
center (domestic court) to settle the dispute
 Vietnam law civil codenot an acceptance, constitute an offer
CISG based on article 19.3that change is regarded as the settlement of
disputematerial change and not an acceptance

What will happen if we reply the offer late (send an acceptance late)? The late
acceptance would be accepted or not?
Based on article 394 VN civil code:
394.1be effective if it is made within that time limit. Otherwise, acceptance shall
be deemed to be a new offer from the party
394.2be effective if they have objective reasons (lí do khách quan) but if the
offeror says that late is latenot an acceptance
the offeror don’t reject immediatelyacceptance’ll be effective
Based on CISG article 18 and 21:
Late acceptance will not be treated as an acceptance unless the offeror agree with
that late acceptance
Or if we have the good reasons for the late acceptanceeffective unless another
parties reject immediately.
Q: What is the form of an acceptance? Can we accept it orally or in the written
form?
A: We have lots of different way to express our acceptance, normally it can be
under the written form or reply an email or send them a letter that you agree with
the offer. But in some situations, you can do oral form that you talk to them in
person or you can call them, you can also perform and act
FORMS OF ACCEPTANCE:
+Written forms
+Oral form
+Performing an act
-SILENCE=ACCEPTANCE?
+VN (Art 393 Civil Code)

Ex: performing an act.

 You put an order to the seller and what the seller do here is that they just
tranfer the goods to you. They don’t say that they agree or disagree but they
send the goods to youperformance
 Someone send you an order and you want to buy it, you don’t need to reply
to buy it or not, just make payment to thema side of agreement
 You send an order to the partner but they remain silentif they are silent,
they accept the offer
the silence is not the acceptance (CISG 18.1 AND VN civil code article 393)

Ex: slience can be treated as acceptance

 If there’s a kind of pratice between the parties before or maybe a custom
between the parties, they treat like I agree with your order or
trancsationthey get that point so you can say that their silence can be an
 acceptance. Howerver, without the practice or custom bewteen the parties,
silence will be never treated as an aceeptance.

A or B is correct.
-If you still keep silent, it means that the contract is not false because silence is not
equal to the acceptance. They set the time for an acceptanceif you reply when
the time passes, that offer will expire
Q: Before the contract, they have signed the contract that if you’re silent in the
next contract, it means that you’ll agree with the offer. Does the slience here mean
the acceptance?
A: You already had that provision in the original contarct, it still works (the silence
here would be continuation of the offer). Normally in the reality, when you sign
the contract, they put a provision that the contract will end at the end of the year.
But if the parties maybe silient, the contract will automatically renewyou don’t
have to say anything because it’s already set out the new contract

Q: The offeree is not allowed to withdraw the acceptance if he already sent the
acceptance to the offeror. Is it true or false?
A:

True, you already sent the acceptance but it has not arrived at the offeror and
then you continue to send withdrawal of the acceptance, it may come earlỉer than
the acceptanceyou’re allowed to withdraw.

Who will wins this case?

-this is the transaction between the seller in Poland and the buyer in VN, involves
foreign element. Poland and VN are members of this convention.
-26/5a change to the offerCISG 19.3, this is material change because it relates
to the price; CISG 19.1, it’s a rejection of the offer and that constitutes a new offer
-Original offer, article 17 CISG, when you reject an offer, the original offer expires
Y wins this case and X cannot claim for damages.
IV. VALIDITY OF A CONTRACT:
Requirement for a valid contract:
 Parties to the contract [Capacity]
 Voluntary consent of the parties
  Purpose and Content of the contract [legality]
 Forms of the contract

1/Parties to the contract:

-The parties have civil legal capacity (năng lực pháp luật dân sự) for civil acts
appropriate to the established civil transaction.

-Commencement: sự bắt đầu, sự khởi đầu

-Termination: sự kết thúc
When does legal capacity of individuals (năng lực hành vi dân sự) start and
end?
-Begin when we were born and end when we die. Everyone should be the same
-However, there’s some situations having some restrictions on your right. For
example, you’re not allowed to get married until 20 if you’re a boy (civil
capacity); you cannot set up a company, vote if you’re imprisoned (legal
capacity)
-Relating to age, time civil capacity
  If your company is about to go bankrupt, you are the owner of the
company, you may be not allowed to set up a company in the next few
yearslegal capacity that the owner of the company should be restricted
Legal capacity Civil capacity
-don’t pay attention to your age, who -pay attention to your age, who you are
you are
-be able to perform activities
-the law gives you the right and
-based on your capacity.
obligation (everyone)
-if you’re not satisfied about the age or
in some situations, your right and
you get something with your health
obligation would be restricted (go to
conditionprevent you from doing
trail or company goes bankrupt)
transactioncivil capacity

-it will be start at the time the legal entities established and be terminated from
the time of termination of such juridical person.
-Legal capacity: năng lực pháp lý
-Legal entities: pháp nhân=legal person (a person created by the law)we’re
not legal person, we’re the natural person (tự nhiên nhân/thể nhân)
-Legal entities is different from natural person
-Article 74legal person refers to an organization
-People say “because I’m the owner of the company, I’m a legal person and
have the right to sign the contract on behalf of the company”False, they
misunderstand between legal person and legal representative (người đại diện
pháp luật-a person who is on behalf of the company to do the transactioncan
sign the contract on behalf of the companybe never considered as legal
person because the legal person refers to an organization)
-Not all organization can be treated as legal persononly when you satisfy the
4 main conditions below set by the law.

Conditions of legal entities:

+be lawfully established (public/private universities are lawfully established
by ministry of education)
*companies have business restrictions*
+be well-structured (article 83)management body (cơ quan quản lí)
[schools-ban giám hiệu (president and vice president)-training management
department-HR department (phòng tổ chức hành chính)-finace department
(phòng tổ chức tài chính)-research department (phòng quản lí khoa học)]

Forms of company in Vietnam:

 -LLC (limited liability company-cty trách nhiệm hữu hạn) has simple
structure and is devided into 2 different forms
+multi-member LLC (popular)
+single-member LLC
 Member’s council (hội đồng thành viên)director/general
directorcontrolling board (ban kiểm soát) (not compulsory for single-
member LLC)
still have the management body
-JSC (joint stuck company-cty cổ phần): general meeting of shared holding
(đại hội đồng cổ đông-includes all the members of JSC)board of management
(hội đồng quản trị)director/general directorcontrolling board (điều hành cái
2,3)
these 2 companies should have more than 1 legal representative  depends on
the form of company
+property independent from other natural and juridical person and
bear liability
+participate independently in legal relations in its own name

 1 billion is used to establish an LLC and be in debt 5 billion

afterwards5 billion debt here is of company not of the members even
though you’re financially able to pay for all that debt but you don’t have
to do because it’s not your job, it’s company’s jobbut the company
 only got 1 billionunable to pay debtgo to bankrupt procedurexù
nợ 1 cách hợp pháp
 JSC would be the same as LLC
 The boundary between legal and illegal is very light (maybe 0)
risk for the creditor (chủ nợ) because when they go bankrupt, you have no right
to get money back.
-Bank is secured creditor (chủ nợ có đảm bảo)
-Participate in the legal relation(s) independently: tham gia vào quan hệ pháp luật 1
cách độc lập
-juridical person: pháp nhân
-authorize: cho phép, uỷ quyền
-competent: giỏi (nhưng chưa đến mức xuất sắc)
Exercise: which are legal entities?
1/Ministry of education and training (based on article 74 civil code)
2/FTU HCMC (phụ thuộc cs chính, article 84 civil code)
3/Branch of an LLC (not have legal person, phụ thuộc vào cty chính) (article 84
civil code)
4/Representative office of a foreign company (article 84 civil code)
5/A noodle shop/restaurant (not be seperated form the property independent of the
ownerjob of family member)
6/Sole proprietorship (hộ kinh doanh cá thể) (don’t have management body, have
unlimited liability for debt, same 5)
7/Partnership (cty hợp danh) (article 74)
Branch Representative office
-can do all commercial activities -limited, not allowed to commercial
(contract) activities, they can do promotion
activities (advertisement, market
survey), find out customers, do
administration things (if the company
 already sign the contract, they need to
take care of customers)
try to facilitate business but can’t
generate from it in that area
 both are not legal person
 Ex about the right and obligation of legal entities that would be
restricted by the law:

-The age of majority: depend on your age, the age of maturity is in the time you
are becoming an adult (18+)have full of civil capacity
-Before 18 but have full civil capacityFalse, the age of maturity is just necessary
condition, we still have to get the sufficient conditions (article 22-24, refer to
health condition)

-“Where a person….other illness”necessary but not sufficient

Q: If a person got mental health problem that makes him/her unable to make
decisionsIs that person considered of losing civil capacity?
A: No because it lacks the sufficency. That’s application will be sent to court and
the court may do examinationu need to show some evidences to say that u’re in
this group “health condition”court will declear that u’re losing civil capacity
Until the court declears that u’re losing civil capacity, u still have full of civil
capacity

Ex: People having difficulty in making decisions:

-The elderly who are sometimes absent-minded and forgot what they talked
previouslycan’t performed and make decisions but sometimes they cancan’t
declear that this person loses their civil capacity & we say they have difficulty in
making decisions

Q: Why does the law put the restriction of civil capacity for those people who are
addicted to drugs/substances?
A: They can’t be aware of what they’re doing and more importantly this will be
hard for their family members, they may sell the car/house..to get money to buy
drugs/substances
-Want to sign a contract  need to have both legal & civil capacity
-Contract will be usually signed by legal representative & everyone should have 1
legal representative
Q: How could we know that the person would be the legal representative of a
company when u do business?
A: You should know that the person signing the contract must be legal
representative. Otherwise, your contract will be invalid
-Company should have some evidences or they have to say that the person making
transaction with u is legal representative.
Or
-Everytime the compay is established, they will credit an ERC (Enterprise
Registration Certificate-Giấy chứng nhận thành lập doanh nghiệp) and that
document should say the basic information about company including who will be
the representative of the company and the position of that person in the company
-Minor refers to anyone under 18
-We can not say the mature age in USA, it depends on circumstances
+Age of consent: time when you become an adult

 Main differences among the minor ages:

-Under 6, you don’t have civil capacityyes, because they can’t make all
decisions, these are established and performed by legal representative
 -6-15, civil transaction is allowed given that they have the consent from
their legal representative
-Civil transaction: food…
-When u refer to letter of attorney, there’re 2 main points u need to double check
 Scope of authorization (phạm vi uỷ quyền): some companies will need
this point. For ex, vice director is allowed to sign the contract at the
value 1 billion. If u don’t know that and you say oke that person is on
behalf of the company to sign the contract, that contract will be
invalid because authorized person may be sign at the limited value
only
 Duration: they said that the vice director has the authorized
representative to sign the contract 3 years onlyAfter 3 years, that
person no long has right to sign the contract.
-Attorney: người được uỷ quyền
-Power of attorney (authorization letter): giấy uỷ quyền của luật sư
-Duration: the time to authorize

Q: Is Mr C allowed to sign the contract?

A:

Q: Exceed the sphere of authorization? (vượt quá phạm vi uỷ quyền?)

A: Yes, based on article 141 clause 2.

Article 142, 143 civil code (xem trong slide thầy gửi)
Q: Who wins?
A: Company A
-B didn’t show any evidence to say you informed the director by phone
2/Voluntary consent:

-Absence of free will: không có ý chí tự do

-Deception and Duress: lừa dối và ép buộc
make the contract invalid
-coercion: sự ép buộc
-the objective of the transaction establishment: mục tiêu của cơ sở giao dịch
-rectify: sửa

-calf: con bê (số nhiều là calves)

-voidable: có thể làm mất hiệu lực
1/ Yes, based on civil code article 126.1 (misunderstandings)
-Both parties thought that the cow couldn’t give birthactually it’s not true
because the cow can also give birth here and that leads to the difference in the
price. Due to the mistake between the 2 parties, one party may declear the contract
invalidVOIDABLE (mistake)
2/ No, based on civil code article 126.2
-Five months alreadyCAN’T BE VOIDABLE (not a mistake)
3/ Purpose and content of the contract:
Not contrary to the law or social morals

[Mục tiêu của sự giao dịch dân sự là lợi ích mà các chủ thể mong muốn có được
khi bắt đầu giao dịch]

-Liability for breach of contract: trách nhiệm do vi phạm hợp đồng

-Contravention: sự vi phạm
 T/F statement: the sale contract is declared invalid if it contains
no price clause.
 False, based on article 398, MAY not MUST. For ex, about open contract, it
doesn’t have the certain price but it depends on the negotiation between parties.
Employment contract (labour code)
Article 11 Contents of the commercial franchise contract:
(Nội dung của hợp đồng nhượng quyền thương mại)
sửa must thành may
-franchisor: người nhượng quyền
-periodical franchise fee: phí nhượng quyền định kỳ
Contracts that law also mentions mandatory terms in condition?
-Regarding to the real estate contract (apartment sales contract, housing sales
contract  land law/law on houses)
-Employment contract is governed by labor code and it would be the specific law
-Health insurance contract, life insurance contractshould be governed by the
insurance business law (luật kinh doanh bảo hiểm)
4/ Forms of the contract:

- Notarization (công chứng). By notary public (công chứng viên) – the person who
construct the notarization. The main function is dealing with legality of a
document, want to make sure that the documents is legally valid, check the whole
content, make sure that the form, the content is in accordance of the law
Ex: the apartment selling… (audio)

- Certification (chứng thực) - by notary public and the person in the local people’s
committee. Want to certify the copy and certify the signature, to make sure the
copy is authentic, confirm the signature.

- If we have copies, we can go the local people’s committee, to certify, notarization

deals with complicated problems….

Article 74: Forms of service contracts

In writing+notarized/certified?
(1) YES. Based on article 24.2

Text, fascimile, messages

YES

(2) True : Law on residential housing (article 21)

(3) NO, based on article 285

VOID CONTRACTS: (Hợp đồng vô hiệu)

Chỉ có court ms quyết được là invalid contract
Classification:

-non-compliance: sự không tuân thủ

-partially invalid: 1 phần không hợp lệ
Legal consequences:
 b
 The sale of apartment contract is void (vô hiệu) if it is not made in
writing
False, based on the article 117.2, it depends on the provision of law

IV. REMEDIES FOR BREACH OF THE CONTRACT:

1. Exemptions for non-performance: (miễn trừ cho việc không thục hiện)

-liability exemption: miễn trừ trách nhiệm

-force majeure event: sự kiện bất khả kháng
-be not liable for: không chịu trách nhiệm
-impediment: sự trở ngại

FORCE MAJEURE (bất khả kháng)

-objective manner: cách thức khách quan

-be remedied: khắc phục
-admissible: có thể chấp nhận

Yes, based on article 79.1, no one could predict the appearance of

SARSunforeseeable event

-promptly notify: thông báo kịp thời

-liability exemption: miễn trách nhiệm
Article 79.4 CISG
 Law on commerce CISG
-promptly notify in writing -give notice
-cases of liability exemption and -impediment and its effect on his ability
possible consequences to perform

+Non-performace: sự không hoàn thành nhiệm vụ