INTRODUCTION TO LAW

1. Course content
- State and law: nha nuoc va phap luat
- Civil law in vietnam: focus on contract law, how to create, wrap , make the
contract valid
- Public international law
- Private international law
2. Course objectives:
- Concept of the state, its structure, vietnamese legal system
- How they classified and organized
- Notion, validity
- Diff types of remedies (bien phap khac phuc hop dong) in law when some one
is breaching the contract
3. Vietnamese legal documents: constitucion 2013, civil code 2015, commerce 2005,
promulgation, treaties 2016;
international treaties ( dieu uoc quoc te):
+ CISG (cong uoc ve hop dong, hang hoa, hop tac quoc te): 2015 vietnam become
member (sing and viet are the contracting member)
4. Teaching method:
- Lectures, handouts
- Socratic dialogue ( nha triet hoc so craft): a student ask 🡪 didn’t give a clear, ask
qs, stu is the one who answer by themselves ---- give u reference qs
5. Learning method:
- Legal thinking
- Discussion
- Group presentation
- Self-study
6. Couse assessment:
- Attendance: 15 days, more 4 times absent – expel , every time absent - lose 2
points; sent an email in advance, provide prof
- Mid term: writing test 20% (multiple choice/case qs: day 11 + presentaton 10%
- Final: take-home assignment/open-book exam ( less 20% percent dao van; over 20
have to rewrite; have a qualified on a due day)
- Bonus: add to your mid term exam
Arbitration: commercial arbitration, to deal with disputes in trade only, the court not
belong to the state, non-government (like taxi service(non-govern, expensie) vs bus
(belong government, cheap)
 Award (bản án) is the decision made by the arbitrator, judgement is the decision
made by the court
Dispute: tranh cai, conflict (dispute settlement: giai quyet tranh chap)
Negotiation: thuong luong, not dam phan (carry another meaning but not in law)
Mediation: hoa giai

Form of resolution of disputes

1. Negotiations between the parties
2. Mediation
3. Resolution by the arbitration or the court
⇨ Point of view: step by the step (save time, money) no compulsory article to go
step by step just FORMS OF RESOLUTION / go with flow: not just about
busniess sense but legal sense
Article 317: we do not have to follow step by step
Read the law 🡪 apply the law: legal thinking

CHAPTER I: STATE AND

LAW
1. Definition
2. Sources
3. Categories/classifications
How to mention the law: article – clause – point – of the law ABC
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STUDY CASE
1. Claim abt the meal: no point cause u re already consume
Claim abt the service: maybe depend on the proof you gave
Hospitality industry: deal social media issue, (legal/economic perspective)
2. Revoke (thu hồi) the driver license 🡪 not work anymore
3. Bribery:
giving maybe some culture, may receive and give gifts to business partner
(holidays,…) those things can be giving culture. Only thing make it become
bribery is benefit exchange 🡪 identify: relationship, has this case do anything back
to the employee 🡪 no eveidence to support this so its no a bribery ortherwise
company may have a reason to dismiss you
One point need to consider: big/multinational company have code of conduct (bo
nguyen tac ung xu )/code of effort. If youre a director, not allowed to receive a gift
with a prize more than 5m vnd
� Double check: code of conduct of that company and law
� Not just base on the law but need to base od code of conduct of the company
4. When u sign a contract 🡪 become a law to a party to follow (franchise agreement
become a law, no change that).
Base on franchise agreement
Commercial law: party need to go with what has mention in the agreement, what
they commited already
SME (small and medium enterprises (doanh nghiệp)): only hire lawyer when it comes to
disputes
LAW/RULE: scale
National essembly can make the law in Vietnam ? congress in US
Example: religion u have follow rule
Law is binding 🡪 everyone need to follow, have to comply with the law, can not go
against the law
INFORCE/INFORCEMENT: (bắt buộc)
If you don’t follow the law, receive the sanction/punishment to make sure the law is
working in the country

DEFINITIONS
- Characteristic of law: a body of rules/ national assembly/ binding - applicable to
everyone/ law can be enforced (thi hành) by the use of sanction
- Law is rule, but rule may not be law
Eg: student in ftu2 forced to wear uniform in tue and thurs, but not all student in hcmc
have to do it (wear the uniform)
- Differences:
 People who make it: everyone can set the rule (leader of a club…), but only the
authority of the state (national assembly) can set the law
 Law: applied to everyone, rule: applied to a small group/organization
 The seriousness of the sanction:
o Criminal: jail, death penalties>fine
o Administrative: fine
o Civil (not relevent to authority, between 2 parties): compensate for
damages (đòi bồi thường thiệt hại)
Eg: A nợ tiền B k trả, B đòi tiền A
 The enforcement agency (cơ quan chức năng): police officer, local authority 
diversity: the whole system work  make sure that no one break the law
Đi du học ở Anh nhưng phạm lỗi thì vẫn bị phạt theo luật VN (as long as being a vn
citizen) (double check)

SOURCES OF LAW IN VIETNAM

Legislation (văn bản luật) Delegated legislation (văn bản dưới luật)
Higher validity
National assembly Can be made by agency, state order

Constitution (Hien Phap)

Acts (dao luat): company acts  law on
enterprises
In vn, law = act
Code (Bo luat): civil procedure code, labour
code, criminal procedure code, commercial code

Law (specific field) = code (more general): same validity

Acts and codes are equal in validation, if there are any conflicts between them, which
prevail will depend on circumstances
Criminal crime: abuse, murder, coruption (tham nhũng), drug trafficking, cyber crime,
task avasion (trốn thuế), money laudering (rửa tiền)…

CONSTITUTION: 1946 - 1959 – 1980 -1992 – 2013

*what makes constitution special:
- hard to change, require lots of processes and agreements: 50% law can be
Two third of national assembly to make constitution 🡪 more challenging compared to
other law (But why they make it very complicated
- Position of constitution in vietnamese legal system: is like the supreme law
(highest validity in vietnamese legal system/control the power of
government/protect human rights)
If conflict between constitution and other law  constitution prevails, law need to
be revised/amended/can be abolished bc that go against the constitution, we call it
unconstitutional ( vi hien – trai voi hien phap)
CASE STUDY: Circulate (thong tu): every citizen allow to have on motorbike only,
reason behind that they can not control the increasing number of vehicle travelling on the
road 🡪 put a bun on that, restrict
=> what do u think abt that policy: circulate here is unconstitutional, we can not restrict,
is human right
CHAPTER 1 OF CONSTITUTION: most important is article 4 (communist party
(ĐCS) - NPT is the most powerful in vietnam, diff position -key position
of vnam big4 - could be prime minister, secretary →
THE PURPOSE OF CONSTITUTION: various fundamental issue of the country,
basic theme to protect yourself, protect the citizen; all the state need to be mentioned in
constitution (that provide the power for staff agency, they are just allowed to work and
operate as long as it stick to constitution, not go beyond this )
Other countries, constitution may not be written (UK) they got some underline in
principle that can be recognized
CASE STUDY: the difference between the versions of the constitution of vietnam?

→ Chapter II “Human rights and citizen’s fundamental rights and duties: First of all,
unlike all previous Constitutions, for the first time the 2013 Constitution clearly defines
and stipulates right in Article 3 that the State has the responsibility to "recognize,
respect, protect and ensure the rights human rights, civil rights". Therefore, when
regulating human rights and citizen rights, most articles of the 2013 Constitution directly
stipulate "everyone has the right to...", "citizens have the right" to clearly affirm that
these are The natural rights of people and citizens are recognized by the Constitution
and the State is responsible for respecting, ensuring and protecting these rights, not the
State "granting" or "gratifying" these rights. for people, for citizens.
=> weapon

=> CONSTITUTION: in USA, prime minister is the most powerful but in vietnam
there are many positions, the power in vn divided into different franchises

LAW AND CODE

Law on cyber information security 2015
6 Codes: labour code, civil code, vietnam maritime code 2015(bo luat hang hai),
criminal code, criminal procedure code (bo luat to tung hinh su)

CODE = LAW
Made by the NA By government, state

Criminal code: everything constitute (cấu Specific field (law on commerce) about
thành) the crime activities in commerce only
````
CIVIL CODE: contract, property, change Example: act of buying sth for your lunch
our name (personal rights), ->trên phương diện ng mua là civil
→ scope narrow activity, nhưng trên phương diện ng bán
(trader) là commercial activity vì generate
Is a set of law profits
Legal validity: both are the same legal
validity, nothing is higher than others, both Example: law on enterprises:
same national assembly, want to set up company, what are
difference is the govern is scope code is the procedure → that is law on
much broader than the law enterprises or what are your right
and obligation
=> ABOUT how to set up, organize,
manage the company

 Tùy thuộc vào mqh giữa 2 bên sẽ lựa

chọn Law/Code phù hợp
Legal validity: both are the same legal validity, nothing is higher than others, both same
national assembly, difference is the govern is scope code is much broader than the law =>
LEGISLATION
 Delegated Legislation (van ban duoi luat)
-national assembly: quốc hội

Ordinances Decree Circular Decisions

(pháp lệnh) (nghị định) (thông tư) (quyết định)
HIGHEST LOWEST
Issuing The Standing Government - Minister (bộ trưởng) The president,
party Committee of the (only) - Heads of ministerial-level Prime Minister,
National Assembly (can’t be made by Agencies (thủ trưởng cơ State auditor
(ủy ban thường vụ the Prime quan ngang bộ) general (kiểm toán
quốc hội) Minister because nhà nước), people’s
it is an individual, The 4 ministerial-level committees of all
and the agencies (hold the position level (communes,
government is an like the minister but we don’t districts, provinces)
organization) call them as minister) are:
1. The State Bank of Vietnam  Both individual
(governor – thống đốc) and
2. The Government Office organization
(head: chủ nhiệm văn
phòng chính phủ -
chairman)
3. The Government
Inspectorate of Vietnam
(thanh tra chính phủ)
4. Committee for Ethnic
Affairs (under control of
NA)

- The Excecutive judge of the

Supreme People’s Court
(chánh án tòa án nhân dân
tối cao)
- Chief prosecutor of supreme
People’s procuracy (viện
trưởng vks nhân dân tối cao)

Circular can be made by

individuals only
Function - Lower legal - To implement - It is a document to explain Initiates the actions
authority than a the law, use to and guide the to be taken to
law provide implementation of state implement the
 - Adding or guidance, details documents issued and under policy
adjusting about the law or the management of a certain
specific matters ordinance  industry
that are not make the law  Provide a detail guidance
covered by laws more specific on the decrees
or need further and easily
clarification applicable in
- Can be updated real life
into law when it’s
stable and sth
important enough

Law will be
prevail compared
to Ordinance,
because Law is
Legislation, while
Ordinance is
Delegated
legislation

Ordinance will
prevail compared
to Decree (because
ordinance holds a
higher legislative
authority, which is
Standing
Committee of the
National
Assembly),
compared to
decree, which is
issuing by the
Government
Legal - Constitution of
basis Vietnam (2013),
article 74: Grants
the Standing
Committee the
authority to issue
ordinances
- Law on the
 Promulgation of
Legal Documents
(2015) (Amended
2020): Specifies
the procedures
for issuing
ordinances and
the authority of
the Standing
Committee

Examples Ordinance on Decree Circular 20/2009/TT/BTC: Decision 2033/GD-

foreign exchange 01/2008/TT-BCT: prescribing the rats and TTg: approving the
management Decree providing collection, payment, scheme to develop
(phap lenh quan li guidelines for management and use of production and sale
ngoai hoi) examining, charges for inspection of of Tra catfish in the
reviewing, machinery, equipment and Mekong river delta
systemizing and supplies subject to strict labor up to 2020.
safety requirements
handling of the
Decision 2190/QD-
legal documents
Circular 66/2009/TT/BTC: TTg: approving the
applied in the prescribing the regime on master plan on
industry and collection, remittance, development of
trade sector. management and use of fees Vietnam’s seaport
on passports, visas and system through
Decree papers on entry exit, transit 2020, with
02/2009/TT-BC: and residence in VN orientations toward
Decree providing 2030
guidelines for the
distribution and
spending of the
budget to support
the direction and
implementation
of activities
against
smuggling, trade
fraud and
counterfeiting by
the market
management
force
Function of People’s procuracy: prosecution (criminal case) (investigate (by the police)
 prosecute (khởi tố)  judgement made by court) and supervision

District People’s Court (lowest)  Provincial People’s Court  High People’s Court
(toà án nhân dân cấp cao)  Supreme People’s Court (highest)

Executive judge > judge, but they are also a judge but they do administrative things như
phân công judge nào giải quyết vụ nào

Ordinance > Decree > Circular > Decision

Law  Decree  Circular: all are important, follow the procedure if people want to find
out the solution

Review session:
1. What do you know about the order?
+Issuing party: president
+function: (art 17) add a new law
+example:
*No. 32/2020/QD-TTg of the Prime Minister: Amending and
supplementing a number of articles of Decision No. 15/2020/QD-TTg dated
April 24, 2020 of the Prime Minister regulating the implementation Current
policies to support people facing difficulties due to covid19 pandemic

2. What do you know about the resolution (nghi quyet)? (who make it,
function, example)
+Issuing party: the standing committee of the national assembly (art 21),
national assembly (art 17), people’s council at various levels (provinces,
districts and communes) (art 3), judge councils (hoi dong tham phan) of the
ppl supreme court
+function:
*provide a guidance to implement the law (art 74, law on org of national
assembly)
*deciding important national issues (art 15, law on org of national
assembly)
*addresing urgent issues and budget decisions (art 4, law on state budget)
 *managing socio-economic policies and development plans (art 3, law on
org of the govenrment)
In some cases, can resolution be equal to the law?
Resolution is delegated lagislative, if it is made by the NA it can be considered
legislative document, and has the same validity with the Law
+example
3. What do you know about the decisions (quyết định)?
+Issuing party: the president, the prime minister, ppl’s committee of various
levels (province, district, commune), state auditor general (tong kiem toan
nha nuoc)
+function: initiates the actions to be taken to implement the policy
4. Official letter (cong van)
Not a legal document in Vietnam, because it is not mentioned in the art 4
→ not binding
People will ask sth they misunderstood (like the laws…) and the
5. Directive (chi thi)
It is an Administrative documents, not a legal document, not binding
because they are not delegated legislation
 Oficial letter and Directive are administrative document
Ordinance:
- Function: cover the issue which has not been mentioned in the law yet, those
things changing , unstable - when things more stable may upgrade the audinance
into the law.
- Example: phap lenh ve quan li thi truong/quan li ngoai hoi
(bạn mượn tiền không trả → invalid)
=> Ordinance is first applicable because it is highly argued authority and made by the
standing committee of the national assembly

Decree:
article 19: prime minister make the decree, T or F → FALSE: only the
government so that it’s the power of government (organization) and
not the power of the prime minister (an individual/different from the
government) base on law on promulgation of legal document of viet nam (luat
ban hanh van ban vi pham phap luat)
Law already say that is the job of government so its government

- FUNCTION: 2 main -
+ provide explanation for several article on the law (somehow they … in
general way, can not apply in reality, need to be more specific explanation
and that is provided by a decree/ we have to base on the decree bc the main
fanfiction is to provide explanation to a law, many decrees so we need to
pick up one explaining the law
+ Cover sth new which has not been covered by the law or
ordinance, depending on the importance of issue, can be
covered by ordinance or decree. WHICH ONE IS MORE →
ordinance bc it is by the national assembly, which is higher
than the government (similar to ordinance)

Circular:
Who? - article 4:
- Minister
- head of ministerial agencies (we have only 4) (thu truong cua co quan ngang bo)
- executive judge of the supreme people’s court (highets court in hierachy in vn)
(chanh an toa an nhan dan) Only the ex judge (the supreme people’s court) to
make a circular
 - the chief procurator of the supreme people’s procuracy.
The minister of the ministry: They just have the power to make circular in their field
only (vien truong vien kiem sat nhan dan toi cao)

The Governor of the SVB (thong doc ngan hang nha nuoc) is entitled to make the
circulars

- FUNCTION: article 24 (law on promulgation of legal document of viet nam)

+ Explain the decree (one law can be accompanied by diff decrees/need to
double-check/cant rely on one law only) Ordinate explain the decree,
Decree explain the law

DIFFERENCE OF CIRCULAR OF OTHER DELEGATED

LEGISLATION:
1. 2 cais te: Created by organization
All four people here is individual not organization
2. Circular made by a numerous party, diff joints, not just one compared to ordinance

Decision:
- Who: article 4: (2) The president, (1) prime minister, (3) state
auditor general (tong kiem toan nha nuoc),... → can be made by
people council, people committee, those are organization is not the individual
(13: people committee of the … for example, those are organization not individual
⇒ decision can be made by organization and individual (BOTH)
- FUNCTION: article 20,28
+ Provide specific guidelines for articles, clauses and paragraphs assigned in
the legal normative documents promulgated by superior agencies
+ Measures for implementation of the constitutions, laws and legal normative
`documents promulgated by superior agencies, resolutions of the people’s
councils at the same

OTHER DELEGATED LEGISLATION: (ARTICLE 4)

RESOLUTION: depends, if this made by national assembly →
legislation/but by other agencies then it called delegated legislation
ORDER: can be made by president
JOINT RESOLUTION:
JOINT CIRCULAR (thong tu lien tich): can be issued more than one agencies, share the
administration things, TWO MINISTER OF 2 MINISTRY CAN MAKE JOINT CIRCULAR

LEVEL OF PEOPLE’S COURT:

district-level people's courts is the lowest court in VN
the provincial-level people's courts
The high people’s court
The supreme people’s court

The difference between chanh an va tham phan

Judge peer the case (xet xu)
Executive court (judge but do administration thing) in charge of the court (allocate the
judge to suitable case)

EXECUTIVE JUDGE VS JUDGE

EXECUTIVE JUDGE JUDGE

Hear the case, settle the dispute - Head of the court, Inject of a court
(judge but do administration thing) - All the administration things,
Only the ex judge (the supreme people’s allocating/assign the judge to a
court) to make a circular particular case

People’s court and people’s procuracy

People’s court People’s procuracy

Handle simple and criminal cases - Prosecution (khoi to vu an hinh su)
Deal with the disputes - Supervise all judicial activities (hoat
dong tu phap ) (check and balance)
- (conducted by the court, investigation
agencies other staff agencies as well
Ex: you commit criminal crime → many relevant agency investigation
→ stage of investigation: investigation agencies belong to the police. They are the one
commit the crime
→ send to people’s procuracy → agree with the police → prosecution (khoi to
vu an hinh su) → when they admit
→ people’s court: do the hearing and to decide whether that person is guilty or not guilty
→ recheck all investigation process
Ex: court hear the case representative of people in the court
-=> want to make sure the court hear the case correctly. If they
disagree → do some action, the court hear the case failure → check and
balance (have to control other, cant give so much power on a
agency/rely so much/ or give too much power to one step agency

Ministry of Vietnam. Ministers have the power to make the circular in their area.
(provide detail function of the decree)

Ordinate explain the decree

Decree explain the law
Head(s) of the Ministerial Agencies (Thu truong cac Bo) equivalent to Minister and have
the right to make circular

CATEGORIES OF LAW
First instance court decision (Toa so tham) → Appeal (khang cao)

CRIMINAL VS CIVIL LAW:

- Perpetrator: thủ phạm
- Deter: răn đe = prevent
- Remedy = seek for compensation
 - The suspected: bị can (before prosecution  judged  defendant)
- Accused: bị cáo: you are judged to be guilty by the court

Difference between biji cao (bi khoi to) /bi can (bi chung minh co toi) :
suspected/defendant
CRIMINAL LAW CIVIL LAW
FUNCTION (2 functions) Punish someone if May not commit with a crime
they commit a crime, and prevent
others from committing a crime
Public prosecutor: công tố viên Plantiff: nguyên đơn
Defendant/Accused: bị cáo Defendant: bị đơn
Guilty/Not guilty Liable/Not liable
Sanction Jail, fine, death penalty Compensation, damages, specific
performance, injuction (order from
the judge – lệnh cấm, vd: lệnh
phong tỏa tài sản)
Negatively destroy lives Less serious
Function of People’s procuracy: prosecution (criminal case) (investigate (by the police)
 prosecute (khởi tố)  judgement made by court) and supervision
In arbitration (private): the clamant (nguyên đơn – ng kiện); the respondent (bị đơn –
ng bị kiện)

Discretion: The power to start the case (quyen quyet dinh)

In civil law, it is up to the plaintiff whether or not they decide to sue the other person
(who do sth unconrrectly to you)
In criminal law, if you are hit by a car and get a big bồi thường and you accept that bồi
thường then you dont mean to sue them anymoner, but the person who hit you will be
prosecuted anyways because it is trái vs criminal law → it is up to the state

Beyond reasonable doubt (bằng chứng cần có để kết án): require a very high standard
of proof to prove that s.o is guilty (criminal case)

Balance of probabilities (chứng cứ thuyết phục hơn): bên thắng kiện chỉ cần chứng
minh sự việc có khả năng xảy ra cao hơn 50% (civil case)  Standard of the evidence in
Civil is somehow is not serious

Specific performance (n) buoc thuc hien dung hop dong

Injunction (n): order from the judge – lệnh cấm – vd: lệnh phong tỏa tài sản

1. Article about robbery or article 168

2. Labour dispute, law of labour/labour code
3. Civil dispute, belong to civil law
4. Article 93
5. Depends Case by case article 260: hit someone and they
died → criminal (lead to the death of one person); still
alive (61% - criminal; 1% - damages
8. Health condition of the victim; safety article
9. Two main issues: one is dispute about the property distribution -
inheritance → belong to civil law; second: death → criminal

In criminal case, we have less serious (<3y)/serious(3y-7y)/very serious(>15)/extreme

serious(death penalty) → base in the sanction punishment
Ex: Ms. Nguyễn Phương Hằng - less serious crime

Tình tiết giảm nhẹ: có bằng khen (not giấy khen) (vd như tham gia hsg cấp tỉnh, qgia,
tham gia hđ đoàn hội…)

Court system in VN: District -> Provincial (extremely serious) → High people → Supreme
PRIVATE VS PUBLIC LAW
Difference: involvement of the state
+có invlove của state  public law
+k có  private law

Private law Public law

-between ordinary people in everyday -between government organization and
transactions (u and me, businesses and ordinary citizens (also between different
companies) government organization)
-k có involvement của state -có involvement của state
Law of contract Criminal law (involve các bước và nhiều
Tort law – luật bồi thường thiệt hại ngoài bên liên quan, từ public law đến
hợp đồng prosecutor…, state-defendant)
Property law Constitution law – law that handle with
Family law the constitution law (state-citizen and state
Company law agencies-state agencies rela, protects our
rights-đảm bảo bởi chính phủ)
Administrative law (citizens-local
authorities/states, vd: married -at local
people’s committee, divorce – at the court)

Law and procedural Law

Substantive law – luật nội dung Procedural law – luật hình thức
(majority)
Defines rights and obligations Establishes processes for resolving
disputes
 -Penal code: define the crime - Civil Procedure Code: Want to sue
-Civil code: basic civil rights, provide all someone in the court, need to … ;
your rights in all situations ( personal tell you the procedure to sue
images except some cases: wanted news someone
lenh truy na) ask the damages when you - Criminal Procedure Code
lost sth
-law on credit institutions(luat ve
cac to chuc tin dung): commercial
bank, finance company (cong ty
tai chinh), cong ty cho thue tai
chinh → what are the process to
establish a commercial bank in
vn; function and operations;
rights and obligation every single
institutions; allow or not allow
- law on investment: construction
project need approval from
government, local → go to
procedure to get approval; right
and obligation to involve in that
project/of investment
- law on VN commercial arbitration
(luat trong tai thuong mai vn)(both)
Because vừa tells the rights and
obligations to sue a person, vừa tells the
procedure
Source of law in VN= legislation + delagated legislation (statutory law – luật thành văn)

Legal System ( he thong phap luat)

Common law (thông luật – hệ thống Civil law (dân luật – hệ thống pháp
pháp luật Anh-Mỹ) luật châu Âu thuộc địa)
-used to describe legal system based on -used to describe legal system based on
the English legal system old Roman Law (luật La Mã)
-part of the British Empire (đế quốc Anh) -built and consolidated (củng cố) in
France, 18th century

-unique feature: judge-made law: law -essential features: civil laws are a
made by the judge, (via precedents – án lệ) codified set of legal rules (tập hợp các quy
 decide who wins the case (án lệ) tắc pháp lý được hệ thống hóa)
-the judgement of the courts operate not -the codified law bears a binding for all.
only to resolve the particular dispute of the There’s little scope for judge-made law in
specific parties before the court, but also civil courts. Yet, looking into the practical
stand as precedents for the resolution aspect, the judges follow the precedents
(nghị quyết) of the future disputes in court
decisions -writing of the legal scholars do have a
-precedent: action, situation or decision substantial influence on the courts: cite
has already happened, can be used as a some argument to support for their
reason why a similar action or decision adjustment, just some countries
should be performed or made
-precedents are not widely used, but still
parts of Civil Law
+precedents are not legal documents in
VN (article 4), binding in some cases
-case law: part of common law
+rules of law announced in court
decisionsimportant part of precedent
+consist of interpretations of statues (diễn
giải các quy chế), regulations and
provisions in the constitution

-“The doctrine (học thuyết) of Stare

decisis”: a Latin phrase meaning “to stand
on decided cases”, 2 aspects:
+a court shouldn’t overturn (đảo ngược)
its own precedents unless there is a
compelling reason to do so
+decisions made by a higher court are
binding (ràng buộc) on lower courts
Eg: Hongkong (used to be UK’s colony), Eg: China, Vietnam, Laos, Japan, Italia,
Malaysia, Singapore, India, Sri Lanka, Finland, Argentina, state Lusiana (in the
Scotland, The US, Canada, South Africa US), Quebec, France
Sources of Common law:
+precedents (most popular sources of
law) - made by the judge in the superior
court
+statutory law – made by the congress
If there is a conflict  Statutory law
 may prevail (bc congress/parliament to
hơn) but judge-made law is more popular

Canada and us common but its feral state: situation every state has their own
law (traffic law in cali diff from NYC, have their own law → applicable for
every state
Canada: provinces (canvak) follow civil law- overall can say canada is common law
→ Most in european follow the civil law (french, spain, italy)

Other legal system: islamic law (shariah law) (he thong phap luat hoi giao)
- Heavily influenced by religious and incorporate it into legal framework
- Source of law: qu’ran (what thánh ala said could be the sources of law)
- Xem thêm trong docs btvn

Precedent có 2 cơ sở pháp lý:

- Ratio decidendi: binding authority (everyone have to follow), how the judges apply and
interpret the rules and make decision and set out the rules for the future cases
- Obiter dicta: persuasive authority (don’t have to follow, reference only)

- Segregation = seperation: thường related to “phân biệt chủng tộc” ở Mỹ

Doctrine: law establish “segregation but equal” under USA Law

In 1896, segregation (nguoi da den dung nha ve sinh rieng) but equal
(same quality) → discrimination ← unless they have a compelling
reason not to follow this
=> UNCONSTITUTIONAL base on the US constitution
=> maybe untrue but they stick to this principle

- Customary practice/law (tap quan): art 5 civil code 2015 vietnam: it is a rule (who made:
people in the region, not a single person), recognize in a long period of time

Common law (precedents) (made by the judge) VS The statute (luat thanh van) (the
legislation made by the Congress (higher authority)
-> if they got in conflict, statute prevails : bc the statute is created by the
congress under the usa, while common law set out by the judges →
clearly the statute has higher authority
The role of precedents in Vietnam
1. Are there precedents in VN?
→ Yes, precedent is available in Vietnam. The Supreme People's Court of Vietnam
maintains a database of precedents that is available to judges and lawyers. This
database includes precedents from all levels of the Vietnamese court system.
2. Who make precedent in VN?
→ under article 4 of Vietnamese constitution, Precedent in Vietnam is made
by the courts, specifically the Supreme People's Court of Vietnam and the lower
courts. Lower courts can also make precedent, but their decisions are not binding on
other lower courts. However, if a lower court makes a decision that is consistent with a
previous decision of the Supreme People's Court, that decision will be given more
weight by other lower courts.
3. Role of precedent in VN?
support the judge to make a decision: put agreement decision to support, using case law
adopted support argumentmore convince when you persuade people defendant in the
case
4. The role in VN compare to that in other countries ?

The concept and role of precedents in the legal systems of Vietnam and the United
Kingdom (UK) differ significantly due to their distinct legal traditions.

1. Binding Precedents: In the UK, the common law system relies heavily on
binding precedents. The decisions of higher courts, such as the UK Supreme
Court or the Court of Appeal, are binding on lower courts within the same
jurisdiction. This means that lower courts must follow and apply the legal
principles established by higher courts in previous cases. In contrast, Vietnam
does not have a formal system of binding precedents. Court decisions in Vietnam
do not create binding legal precedents that must be followed by lower courts in
subsequent cases.

2. Stare Decisis: The principle of stare decisis is a cornerstone of the UK legal

system. It means that courts are generally bound to follow the precedents
established by higher courts. This ensures consistency and predictability in the
application of the law. In Vietnam, although the principle of stare decisis is not
formally recognized, court decisions can have persuasive value and influence
subsequent cases. However, they are not binding on lower courts.

3. Role of Legislation: In the UK, Parliament is the supreme law-making authority,

and statutory laws enacted by Parliament take precedence over common law
precedents. Precedents can be overridden or modified by legislation. In Vietnam,
legislation, including statutes and regulations, is the primary source of law. The
legal system in Vietnam relies more heavily on codified laws rather than judicial
precedents.

4. Judicial Interpretation: In the UK, judges have the authority to interpret and
develop the law through their decisions. They establish legal principles and refine
the law in response to changing circumstances. In Vietnam, while judges have
the power to interpret the law, their decisions do not have the same binding effect
as in the UK. The Supreme People's Court of Vietnam issues judicial
 interpretation documents that provide guidance but are not binding precedents.

Overall, the UK legal system places a strong emphasis on binding precedents and the
doctrine of stare decisis, while the Vietnamese legal system relies more on legislation
and does not have a formal system of binding precedents.

Pros Cons
1. Uniformity & Consistency: Every 1. Complexity: Need to search for
local court must apply the law many cases. The body of case law
based on precedents set by the becomes complex, and precedents
higher court  stare decisis (giữ can sometime conflict with each
nguyên các quyết định đã có) other

2. Efficiency: Save time and 2. Inflexibility: Sometimes it could be

resources, bc it eliminates the need a wrong decision  have a knock
to start from scratch every time a on affect, as they are bound to
new case arises follow them  stare decisis

3. Flexibility: Allows the law to evolve 3. Limitations on judical discretion:

gradually through judical decisions, Judges may feel constrained by
adapting the changing societal the precedents, limit their ability to
norms use their own discretion in deciding
a case
4. Predictability: Similar cases will go
through a similar process of
judgement, resulting in fairness
among all cases

Example: in VN, Ngoc Trinh, under

the criminal prosecution, for and
against the case (society: not that
serious to be criminal/do it on
purpose, traffic law, post on tiktok
trend, influencers follow, harm the
society): interpretation - case by case
- that situation mabe unpredictable

 It is a sources of law in VN, but not legal document (article 4, law on promulgation)

The process of applying the law in one case:

1. Legislation and delegated legislation – statute law
2. Customary law (article 5)
 3. Analogy of law (article 5) (tương tự pháp luật): using a similar law to apply in
your case (applied by the court) - challenging to find a similar law to apply
 Eg: look for the regulation in the law can provide you a solution to solve the
problem in property leasing contract (which is not mentioned in the law) by apply
the law which is used to solve the real estate leasing contract issue
4. Basic principles of the civil law, Precedents and Equity (những nguyên tác cơ bản
của áp dụng dân sự) (article 3, civil code 2015): is determined based on the
reasons, accepted by everyone in the society… there is no law but everyone
believe that you have a reason (accepted by the society) to do so:
- Fairness/equality
- Party autonomy (quyền tự chủ, quyền tự quyết)/Freedom of contract: sự thỏa
thuận giữa các bên trong hợp đồng (pháp luật có thể k quy định nhưng phải tôn
trọng sự thỏa thuận giữa 2 bên)
- Equity (lẽ công bằng): the judge can based on the fair of 2 parties (when there are
no law to solve the case)
- Case law, precedent (decision made by the court) is not legislation but still the
source of law to handle the case when there is no law applicable (article 4 - law
on promulgation)

Civil Laws (slide): codified (pháp điển hóa) set of legal rules - formly written form,
very systematic so that everyone can follow
+ Precedents are not widely used but still part of Civil Law
+ Writings of the Legal Scholars (those who do a lot of research in the legal field: uni
lecterer, lawyer, arbitrator… and public some researches and those research can be
applied by the judges to support their ideas) do have a substantial influence on the
courts
*In VN, the judgement follow the statutory law only, they can use some points
in the civil law but like a ref (they dont make it clear)
*France, germany when made judgment, make a cite to support the
argument

+ Doctrine (học thuyết)

Common Laws: sometime can be hard to find the law, judge-made law
(Phong tuc is not a custom; it’s a tradition)

QUESTION AND ANSWER:

1. Is precedent a law? → No, is a source of law, not the legislation
or delegated legislation, ppl can use it when its no law
applicable in the case
2. Common law and statute law got into conflict, which one will prevail? →
statue law

LEGAL NORM (quy pham phap luat)

 Mandatory rule of social behavior established by the state
 Differences between law and legal norm: law is a collection of legal
norm (legal norm is a small part of the law)
Eg: Constitution of VN has 120 articles → some clauses → some points, and in
each points they may consists of many legal norms

Elements of Legal norm:

 Hypothesis (giả định): describes the circumstances in which the
disposition or sanction of the norm come into action (compulsory)
o Who?/ Which? (not just refer to human, it can be an object
sometimes)
o In which situation?
 Disposition (quy định): indicates the right and obligations of the
participants in relations arising under the circumstances envisioned in the
hypothesis. (compulsory)
o What can/can’t we do?
o What should we do?
o How can we do?
o What must/mustn’t we do?
 Sanction (chế tài): defines the consequences for persons who violate the
prescriptions of a particular norm (not always compulsory, because it
only applicable to criminal norm)
o What are the legal consequences?

Example:
● The Buyer shall be entitled not to pay in full or pay a part if he discovers goods
are in damage upon delivery and can pay only after the Seller’s replacement.
 • A married man who lives with another as spouse shall be imprisoned from 3
months up to 1 year.
• If the value of the leased property decreases in comparison with its condition at
the time it was received, the Leaser shall be entitled to demand damages.

Article 600 of vietnam civil code: An individual or legal entity must compensate for
any loss and damage caused by any worker or trainee belonging to it during the
performance by the employee or trainee of his or her assigned duties. The
individual, legal entity or other subject has the right to demand such worker or trainee
reimburse it an amount of money in accordance with law.

First sentence:
- Hypothesis:
+ who (individual or legal entity whose worker on trainee causing the
loss or damage during performance under his or her assigned duties)
- Disposition: have to compensate for any loss or damage
- Sanction: no
Second sentence:
- Hypothesis: the individual legal entity or any subject who actually
compensate for the loss
- Deposition: have the right to ask the worker the compensation
- Sanction: no
CONSTITUTION 2023

ARTICLE 24:
3 sentences - 3 legal norm
- Hypothesis: everyone - no circumstance mentioned
- Deposition: allow to follow any religion or follow non
- Sanction: no
2nd: hypo - all religions; depo: equal

ARTICLE 31:A defendant shall be regarded as innocent until the crime is proved
by in accordance with legal procedure and the sentence of the Court has acquired
full legal effect.

- Hypothesis: who - defendant (nguoi bi buoc toi) ; situation - where the crime
has not been proved and the sentenced has not acquire
- Deposition: regarded as innocent (nguoi khong co toi)
Incorporate with the current law
Comply with the current law

CHAPTER II: BUSINESS CONTRACT

-some contract that you may sign: employment contract, service contract, land
transfer contract

-when you buy things from the market, shops,… -> contract

The one who sell you is the seller

Eg: when you buy things, your obligation (nghĩa vụ): you have to pay, your right:
you receive the product  contract is an agreement

“undertaken”: you commit it, means that once you already make a commitment,
you have performed the right and obligations as committed.

→ Contract committed → law to a party (not allow to go against

the contract - for parties only)

- Definition of Contract: a promise or a set of promises for the breach of

which the law gives a remedy, or the performance of which the law in some
ways recognizes as a duty
+Art 385, VN Civil Code 2015: Contract means an agreement between
parties in relation to the establishment, modification or termination of civil
rights and obligations

If u breach a contract  receive a remedy  a contract is an agreement thay

can be enforced in court

- Essence of the contract:

+Legal validity: giá trị pháp lý
+Commiment: cam kết

When the contract is created, it is considered the law of the party and everyone has
to follow the law  you need to read the contract carefully or later on you will be
binded by the contract
 CLASSIFICATION OF CONTRACT
Bilateral contract Unilateral contract
(hợp đồng song vụ) (hợp đồng đơn vụ)

definition Whereby each party has an One party has an obligation

obligation to the other

Most contract is bilateral

example Employment contract Health center to donate your

human organ (only + one part
Loan/credit contract have obligation – you provide
your organ)

Gift giving contract (hợp đồng tặng tài sản) – unilateral contract: ba me tang
qua cho con thi ba me co obligation phai chuyen nhuong tai san cho con, con con k
co responsibilities phai lam gi nguoc lai (ba me co doi thi con cung k can tra lai)

Donation contract depends on the terms on the conditions to decide it is bilateral

or unilateral

*Note:

+ Reward offer is NOT UNILATERAL - not the contract (agreement

between parties) – one side opinion → Hành vi hứa thưởng
+ Leave a “di chuc” (testament) to you (only son of the family)
→ unilateral ACT → NOT CONTRACT (do not need
agreement) (your parent give you without your permission)

PRINCIPLE CONTRACT ANCILLARY

(hop dong chinh) CONTRACT (hop
dong phu)

Definition The effectiveness of which The effectiveness of which

does not depend on another depends on a principal
 contract contract

Example Credit contract/Loan contract: Security contract (hợp đồng

hop dong vay/hop dong tin bảo đảm): to make sure you
dung (borrow money from the can return the money to the
bank) bank (pledge (cam co),
mortgage (the chap tai san),
guarantee (bao lanh)) →
you fail to pay the
interest then the bank
will take the prosperity
here

A contract for the A conditional contract

benefit of third (hợp đồng có điều kiện)
person
Whereby contracting
definition parties must perform The performance of which
obligations for the depends on the occurrence,
benefits of a third modification or termination of
person and the third a specified event
person enjoys benefits No party have perform the
from such performance obligation – only perform when
the contract happen

example Insurance: you parent buy Human organ: only happen

a insurance for you After when you die → the
18, benefitsary of that contract already sign
contract
*Note:

+ Insurance contract: Only compensate for your when there are

accident → NOT CONDITIONAL CONTRACT (you have
already pay the fee that means the contract already
perform)
+ Proportion contract →NOT CONDITIONAL CONTRACT

COMMERCIAL CONTRACT
PARTIES (các bên trong hợp đồng)– ART 2 – LAW ON COMMERCE:

- Business entities (đơn vị hoạt động kinh doanh): conditions to be a

business entity:
 Individual/Economic organization
 Commercial activities: generate the profit (mua cf sang k phai commercial
activity because no k make profit cho minh – ma no make profit cho quan cf
(circle k)  then the circle k is a commercial activity)
 Regularly
 Independently
 Business registration:
o business household (ho kinh doanh ca the) – district level people’s
committee: uy ban nhan dan
o company – department of planning and investment: so ke hoach va
dau tu (in hcm: business registration office: phong dang ky kinh
doanh)

1. Trader (thuong nhan) – (doanh nhan)

→ Is that the same or different?

→ doanh nhan (refer businessman - individual - just work for

company) – trader (organization or individual)
 - Definition: (art 6 – commercial law)

What could be the party of trader?

→ 2 parties: individual – economic organization

What could be an economic organization?

Types of companies:

+ limited liability

+ cong ty co phan

+ partnership (cong ty hop van)

+ cong ty trach nhiem huu han mot thanh vien

+ doanh nghiep tu nhan (proprietorship/sole trader)

*Commercial activities (art 3) means activities for the purpose of generating

profits, including: sale and purchase of goods, provision of services, investment,
commercial promotion and other activities for the profit purpose.

Is our university a trader? (truong dh cong) → not business entity: it

make profit but it does not a main function of univeristy, we are
not economic organization, and registion at ministry of education and
training not department of planning and investment → don vi su nghiep nha
nuoc (public uni)

Truong dh tu  not business entity: k co business registration (k di toi department

of planning and investment de dang ky ma toi department of education and training
de dang ky) and business k phai main purpose

Are we trader? → No

Employee is a trader → you generate the profit => NO you work for the
company, depending on the company so we do not make profit by ourselves
Are you a trader if you are direct manager of a “cong ty co
phan” (CEO, chairman) → NO because director mana is hired by a
company, they do not work independently

“banh Trang nuong” → no bc khong dki kinh doanh

Branches of company  not business entity: they do not work

independently

FPT Company  business entity: economic organization, it has business

registration, work indepentdenly

Vinamilk agent: business entity: the principal and the agent agree for the agent to
conduct in its own name  work independently (by using their own name, not
vinamilk name)

Article 166: Commercial agency:

Commercial agency means a commercial activity whereby the principal and
the agent agree for the agent to conduct in its own name the sale or
purchase of goods for the principal or to provide services of the principal to
customers in order to receive remuneration.

DEFINITION:
- Agreement: accepted from both parties
+ agree between the parties (more than 1)
+ content: what it is about (establishment, modification, termination of your
rights and your obligations)
→ when mention of contract, we mention about the right and
obligation
NOTE: NOT ALL CONTRACT MUST BE IN WRITTEN FORM
Example: buying food from street vendor → CONTRACT (you and
seller - you make a obligation like make a payment and you
receive your right like the food)
 Object: goods, service
Art 3.2, Law on Commerce:
+ All types of movables (động sản) including those to be formed in the
future → sth u sign now the good not exist, the next few day
then the good will be formed
Eg: movable: car, food, drinks
Future department does not attached to point a

+ Things attached to land

→ Land belong to all the people and the state is the one who
administrate those things, under administration of the state
→ what we trade is the land use right (quyền sử dụng
đất) not the ownership of land → that’s why only things
attached to land (land is not the good in Vietnam)
Eg: tree, apartment, mineral (khoáng sản), crop
 FORM OF CONTRACT

(art 24 and 74 law on commerce)

1. Verbal or written form or established by specific acts (process in buying in
supermarket with conveyor no cashier)
- Verbal contract: not in written, no evidence in recording the contract,
sometimes you have dispute with it you can not prove unless you recorded it
 when it comes to valuable things, it is usually written contract
Eg: mua bánh tráng trước cổng trường
- Specific acts: make the payment = contract is already made, without talking
Eg: quét mã QR khi mua cà phê ở Circle K mà không cần nói chuyện (quét
mã = đồng ý mua bán)
- Written form
2. For types of contacts for purchase and sale of goods, which, as provided for
by law, must be made in writing, such provisions must be complied with
→ In general sale of goods can be made in different form
(verbal, written, specific acts)
- kinds of contract must be in the written form only: international
contract, import/export contract (art 27, clause 2, law on commerce),
insurance contract, franchise contract (art 285), promotion service (art
90)
*Note: will and testament is not a contract
→ equivalent to the written form (using electronic devices) →
DATA MESSAGE (thông điệp dữ liệu) (article 15 + article 5)
*Note: careful bc lots of risks in signing those contracts, can be edited, deleted: it
can be automatically deleted after a long time (zalo), it can be edited (messenger)
…

GOVERNING LAW: art 4

Eg: Company A ----–(loan credit)------ Bank B
- 1st applicable: specialize/specific law (luật chuyên ngành): law on credit
institution
- If there is no specific law, then we refer to commercial law
 - If there is no commercial law, then refer to civil code

1. Must comply with the commercial law and relevant law

2. Comply with provisions of such law (should be applicable
first) → hoat dong thuong mai dac thu should covered by a
specific law - luat chuyen nganh
3. Not provided for the commercial law and others shall comply with the
provision of the civil code

- Party autonomy – freedom of the contract: the parties decide what they want in the
contract – limitation: not contrary to the law (eg: 8% is the maximum for the
compensate in the law on commerce, you cant said it up to 20%)
- However, when it is not hoạt động thương mại  apply the civil code 1st

Case study 1:

Case study 2:
 - Vietnamese company: established in Vietnam, whether it is founded in other country
Eg: unilever is a vietnam company if it established in vietnam

QnA session: mua tài liệu trên mạng (đọc được) thì là hàng hóa hay dịch vụ  hàng hóa
thì phải customize được  là hàng hóa

Revision:
● Sales contract must be made in writing → False (verbal, special,...)
● Franchise contract must be made in writing → True (Art 285 -
Commercial franchise contracts must be made in writing or in other
forms of equivalent legal validity.)
● Commercial contract is governed by the Commercial Law only → False (có
thể áp dụng Civil code, specific law)
● The applicable law for the contract signed between two Vietnamese
companies could be the Chinese Law if the parties so decide.
→ Article 5: Application of treaties, foreign laws and international
commercial practices
1. Where a treaty to which Vietnam is a contracting party stipulates the
application of foreign laws or international commercial practices, or
contain provisions different from those of this Law, the provisions of
such treaty shall apply. (CISG)
2. Parties to commercial transactions involving foreign elements may
agree to apply foreign laws or international commercial practices if such
foreign laws or international commercial practices are not contrary to
the fundamental principles of the Vietnamese law.
→ Contracts involving foreign elements mới được áp dụng foreign law,
nếu không thì phải Vietnamese Law.
→ Article 663.2 (phải xét từng legal basis xem có thoả mãn hay
không)
Trong trường hợp 1 director là người Trung Quốc thì cũng không được,
bởi vì director chỉ là legal representative của cty, hợp đồng là ký kết giữa
2 công ty, không phải 2 giám đốc.
Trong trường hợp contract được ký ở Trung Quốc thì oke.
Trong trường hợp mua hàng hoá ở Trung Quốc thì cũng oke luôn.

HIERARCHY (cấp bậc) TO APPLY COMMERCIAL LAW TO

ACTIVITIES
1. Specific law: particular law that govern a specific issue (example: insurance
contract should be covered by the insurance business law - not directly
mention in commercial law; the law on real estate business; law on credit
institution; law on advertisement; law on electricity; law on protection and
…; law on enterprises)
2. Law on commerce
3. Civil code
Example: in uk have sale of goods but vn dont
We are allow to follow … only when we have foreign element - if no foreign
element in your transaction we have to go with vietnamese law only

How do we know the contract involve the foreign element (663.2 civil code -
commercial dont include)
 - Nationality of party is foreigner → involve foreign element
- Establishment happen in foreign country (travel to sing to
make contract → yes)
- Subject matter of relation is located in foreign country
(goods, commodities, selling things or buying things located
oversea → yes even that have been transported to vietnam

Exam
ple: the applicable law for the contract signed between two vietnamese companies
whose legal representatives are chinese could be the chinese law if the parties so
decide
→ FALSE because the party here is vietnamese bc there are 2 vietnamese
companies (the one sign the contract is chinese but he signed on behalf of the
vietnamese country)

Example: Labor contract mainly governed by LABOR CODE ONLY noe relevant
to commercial activities

OFFER AND ACCEPTANCE =

contract
1.OFFER (đề nghị giao kết hợp đồng):
Commercial law is silent here, then just refer to CIVIL CODE (art 386 –
> art 397) and CISG (art 14 -> art 24)

A, Criteria for an offer

Difference between art 386.1 civil code VS art 14.1 CISG
Offer: give offer
Offeree: receive offer
To be bound: if the offeree accept their offer, the contract is created
Offeree agree, the contract is bound to you
→ the intention to be bound
Difference:
+ Civil code:
o Offeree can be determined party (anyone can identified/one or more
person) or public (anonymous);
o No compulsory information about the goods, quantity, price  more
flexible
+ CISG:
o Another condition that offer need sufficiently definite – offeree: 1 or
more specific person (there is no public, vietnam law is broader);
o Compulsory condition that should be mentioned in a offer: price
quantity, price
Similarity:
+ The key characteristic of a offer is intention to be bound

The offeror can only be sent by the seller?→ FALSE (u want

to order sth → offer; purchase order - an offer from a buyer side)
→ offerer can be made from the seller side or buyer side

Eg: (slide chụp lại)

1. The letter just ask information  Inquiry (thư hỏi hàng)  not an offer
2. Offer: it provides information about goods, quantity, price and show the
commitment to be bound “we can apply you any quantity from 10k MT up to
15k MT monthly”
3. Advertisement on social media is an offer?  no (cisg, because there is no
identified person to be sent), can be true (vietnam law, because it is sent to the
public)
4. The first 5 people come to the shop will receive discount, offer or not?  no
(cisg), yes (vn law, 5 people are sent to the public)
5. Invitation to treat (to negotiate): when you take the good and bring it to the
counter (you are making the offer to buy it)  not an offer when they just
display the goods
Invitation to treat, inquiry, mass distribution of a catalogue of merchandise,
brochures, advertisement (depend)  not offer

Art 386.2 civil code: people should responsible for what they offer, can not send to
everyone - can but need to responsible

B, Withdrawal (rut lai chao hang) and revocation of an offer

Brochure (to vn can be an offer - to cisg not an offer

INVITATION TO TREAT - negotiate
**Brochure - a disclaimer at the end → not an offer
Meet the commitment of boundaries of offer
Example:
- Advertisement on social media under vietnam law constitute an offer
—-------------------------------------------------------------------------------------------------

Difference between the withdrawal and revocation Similarity:

The outcome is the same: the offer is terminated, no longer valid
WITHDRAWAL (rút chào hàng) REVOCATION (hủy chào hàng)
Before the offeree has send the
 acceptance
Time: much longer than withdrawal - as
long as the offeree has not send you
acceptance

Art 15.2 CISG: An offer, even if it is Art 16 CISG

irrevocable, may be withdrawn if the (1) Until a contract is concluded an
withdrawal reaches the offeree offer may be revoked if the
revocation reaches the offeree
before or at the same time as the
before he has dispatched an
offer acceptance.
(2) However, an offer cannot be
revoked:
(a) if it indicates, whether by
stating a fixed time for acceptance
or
otherwise, that it is irrevocable; or
(b) if it was reasonable for the
offeree to rely on the offer as being
irrevocable and the offeree has
acted in reliance on the offer.

Example Statement: an offer An offer can not be revoked if indicate

can be withdrawn at any start a fixed time that
time by the offeror → False → offer make a clear this is
- Restrict the time/limit the time to irrevocable offer → can not
withdrawn - only when arrive at revoke at any time - but can
the same time or before as the withdraw
offer However they may mention time for
Example: acceptance
+ send offer by post (2 choices:
regular mail – take time to Validity: they mention abt the time the
arrive + express mail – come offer to be valid, also time for you to
earlier) → withdraw by sending accept the offer, cannot accept beyond
express post → earlier or have that validity (time for acceptance)
the same time of offer → irrevocable
+ Send an offer by express *Most offer mention the time for
post → withdraw by online acceptance bc time of price keep
platform: email, call changing - offer hard to revoke
+ send by email then can not be
withdrawn (send another email may B, mention time, didnt mention
arrive after the first email) irrevocable however the
communication make offer
Example: when i send, he didn't irrevocable → offer can not
read the email yet, if i send revoke
withdrawn may come before → offeree need to show proof
the offer → CISG silent bc 1980 (some indication from offeree
as the mail not make offeree believe that it is
developed/popular - u can see irrevocable)
the vietnamese law **offer can not be revoked still can
Art 388.2.b civil code: go the inbox withdrawn - the diff is the time - vice
→ withdrawn arrive or reach versa
the offeree already, doesn’t
matter it is read or not →
IMPOSSIBLE TO WITHDRAW,
HOWEVER CAN REVOKE THE
OFFER

Reach the offeries in the case sending by email

Vietnameese Civil Code artle 388 clause 2 point b

DIFFERENCE BETWEEN CIVIL CODE AND CISG

- Similarity:
+ before/as the same time, correspondingly with 389.a)
+ Can revoke as long as the offeree not send an acceptance
- Difference:
+ Civil 2 opportunities - CISG 1 condition
+ Difference point B (missing in CISG): if the offeree is
clearly …. Arisen - offeror can still withdrawn → put
condition in the offer

Which one is beneficial for offeror ?→ Vietnamese Law protect the

offeror better by providing opportunities to make
withdrawn
 Art 389 civil code Art 15.2 CISG
An offeror may modify or withdraw An offer, even if it is irrevocable,
an offer to enter into a contract in may be withdrawn if the
the following cases: withdrawal reaches the offeree
(a) The offeree receives notice of before or at the same time as
modification or withdrawal of the the
offer prior to or at the same time offer.
as receipt of the offer;
(b) The offeror clearly specified the
circumstances in which the offer
could be modified or withdrawn
and such circumstances have in
fact arisen.

Art 390 Civil Code Art 16 CISG

An offeror may revoke the offer to (1) Until a contract is concluded an
enter into a contract if such right offer may be revoked if the
was specified in the offer and the
offeree receives the notice of revocation reaches the offeree
revocation of the offer prior to the before he has dispatched an
offeree providing a notice of acceptance.
acceptance of the offer to enter 2) However, an offer cannot be
into the contract revoked:
(a) if it indicates, whether by stating
a fixed time for acceptance or
otherwise, that it is irrevocable; or
(b) if it was reasonable for the
offeree to rely on the offer as being
irrevocable and the offeree has
acted in reliance on the offer.
Civil Code: 2 conditions to satisfy
- Time limit
- The right in the contract to be revoked while cisg not mention the right to
revoke
Eg: “if the offeree may not reply in the next 3 working days, the offeror can
withdrawn it”  put that in your offer email to protect your right

CISG:
 - If the revocation indicates a fixed time for acceptance  irrevocable
- If it was reasonable for the offeree to rely on the offer as being irrevocable
and the offeree has acted in reliance on the offer
- Easier for the offeror to revoke Vietnam Civil Code
- More flexible to withdrawn than in CISG

→ CISG more flexible to offeror to revoke

Takeaway: even vietnamese out condition for revocation be flexible for offeror
to revoke it bc under cisg 15.2 no way to ??

Example: According to vietnam, withdrawn is always allowed if the

withdrawal reaches the offeree before he has dispatched an
acceptance → false

Example: According to the CISG, the revocation is always allowed if

the revocation reaches the offeree before te has dispatched an
acceptance → 16.1 → not always true , it true if we apply 16.1 but
not true if we apply 16.2b

Revision:
● An advertisement on social media could constitute an offer if the
applicable law is the Vietnam's Law → True bởi vì made to the public
● According to the Vietnam's Law, the withdrawal is always allowed if
the
 withdrawal reaches the offeree before he has dispatched the
acceptance
→ False bởi vì phải state the circumstances have arisen in fact
● According to the CISG, the revocation is always allowed if the
revocation
reaches the offeree before he has dispatched an acceptance → False
vì có
2 exceptions

ACCEPTANCE

VIETNAMESE LAW:
- Art 392: When an offeree accepts the offer to enter into a
contract but specifies conditions or amendments to the
offer, the offeree shall be deemed to have made a new offer.
- Art 393:
o Acceptance of an offer to enter into a contract means a
reply by the offeree accepting the entire contents of the
offer.
 o The silence of the offeree shall not be deemed to be an
acceptance of the offer to enter into the contract, unless
otherwise agreed or unless it complies with the custom
established by the parties
- “MIRROR IMAGE” RULE: you see yourself in the mirror, follow
100%, difference → new offer// accept the offer unconditionally,
not allow to change inn original offer, if you change come to new
offer, you become the offerer bc you are making a new offer
CISG:
- a reply to an offer which purports to be an acceptance but
contains additions, limitations or other modifications is a
rejection of the offer and constitutes a counter-offer (change the position – the
offeror becomes the offeree and vice versa)
- depend on change, not every changes lead to new offer:
+major change: means you change/alter the term materially (=significantly) and
lead to new off
+minor change: you change the terms but it’s just a minor change, not significant
 may constitute an acceptance

How can we know that “materially alter the term” (thay

doi mot cach co ban)  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

Eg: 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 (and the offeror may not object it)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.

The acceptance must be received within the time limitation set

forth in the offer (VN art 394, cisg art 18,21)
 Silent is not an acceptance (CISG 18.1, Civil Code 393)
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.

MATERIAL BREACH OF A CONTRACT (vi pham nghiem trong)

Example:
+ u send me an email to offer, i am the offeree, reply agree and
add new language → may not care the minor change or major
 change → my reply is not acceptance, what i reply is the new
offer

+ Free on Board means the seller is responsible for the product only until it is loaded
on board a shipping a vessel, at which point the buyer is responsible.
With CFR, the seller must arrange and pay all costs to ship the product
to a destination port, at which point the buyer becomes responsible. →
the change in extent of one party’s liability and price (CFR higher than FOB)
Example:
+ U send me an email “party have to go to vietnam hcm people
court for the …” → rep ok but we prefer to arbitration when it
comes to international → change from court to arbitration (trong
tai thuong mai) → settlement of dispute (giai quyet tranh chap) →
CHANGE IN MATERIAL THE TERM”

b. THE ACCEPTANCE MUST BE RECEIVED WITHIN THE TIME LIMITATION SET

FORTH IN THE OFFER (validity of acceptance)

FORMS: written/oral/specific act (u make a payment/deposit)

SILENCE IS NOT AN ACCEPTANCE (chung minh giao dich tu nhung lan trc
la im lang la dong y cua 2 ben roi nen nhung lan sau co the chap nhan)

→ Answer: C
B (offeror) just give a offer which is not accepted by offeree
Can not just base on that information to tell that the contract is created because it is just
AN OFFER not a contract (need to be signed between parties)
- keep silent → it’s legal if you keep silent → it means that you
don’t agree with that offer including that provision → that is just the
unilateral intention from company B only. → B said that “if we have
not heard from you we will assume that you have agreed to renew the
contract” but if we are silent it means we don’t agree with that provision as well.
- if you want to make it clearer → you just send them an email to
reject.
 Both A and B have the same result: to terminate the terms

Example: you sign a rent contract for 1 year

Argue: if party don’t say anything than the contract will continue to the next year
because 2 parties have signed already
→ in this case, just from 1 side only, can not binding to the offeree
because it is not the agreement between 2 parties

In breach: vi pham hop dong

Answer: There is practice between parties under long-term contract -
keep silence again than means that you have to deliver in requested
time → B is in breach
 The acceptance shall not be withdrawn
Can not withdrawn the acceptance if you send it by email (because the withdrawal will
come after the acceptance), however we can withdrawn the acceptance by express mail
(if we send by regular mail), or email/call (if we send by express mail)

Art 397 Civil Code: Withdrawal of notice of acceptance to enter into a contract
The offeree may withdraw the notice of acceptance to enter into a contract if the notice of such
withdrawal arrives prior to or at the same time as the offeror receives the reply accepting the
offer to enter into a contract.

Art 22 CISG
An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same
time as the acceptance would have become effective.
→ 2 law are the same

Statement: Offeree is entitled to revoke the acceptance in same cases →

not have the term “revocation for acceptance” - acceptance can be
withdrawn only - revocation to offer only

terminated: bi loai bo
STEP 1: Need to decide what is the applicable law → CISG -
+ vietnam, poland is the member of CISG
 + the party has not chose other law to govern this contract
→ CISG automatically applicable
→ Is not valid on 30th - make a new offer means reject then original is
terminated under art 17 CISG - Y silent with the new offer made by X.
means that the contract is not formed yet. And Y has the right to sign a
contract with another person without confirming with others → X can
not claim for damages.
→ the acceptance on 29/5 also invalid because at that time, the original
offer is already expired → the contract is not formed → X cannot claim
for damages → Y wins

REQUIREMENT FOR A VALID CONTRACT

(điều kiện hiệu lực của hợp đồng)

*Note: Not every contract will make it auto valid

4 main conditions
+ The party to contract phai hop phap (chủ thể hợp đồng phải hợp pháp)
+ The voluntary consent of the parties (sự tự nguyện giao kết hợp đồng)
+ Purpose and content of contract (mục đích và nội dung hợp đồng phải hợp pháp)
+ Forms of the contract (hình thức hợp đồng phải hợp pháp)

The party to the contract

- Legal capacity (nang luc phap luat dan su)
- Civil capacity (nang luc hanh vi nhan su)

The difference between legal capacity and civil capacity

 -

- Legal: (art 16-18 civil code)

Capability provided by the law for you to have that right and obligation
Example:
+ every vnamese citizen have the right to education → legal
capa
+ The right to sign a contract: everyone has a right to sign the
contract → legal capa
+ The same to everyone - both vietnamese citizens all have legal capacity
- Civil:
Example:
+ Whether you can perform the right ot not belong to civil (cannot
control , make division bc i am experiencing the mental
health problems so that is my own capability → belong to
civil capa
At which age, you have your legal capacity ? → at the time you were born but
at the age of 18 you have full legal capacity - it will terminated at the
time you die

Exception:
Your legal capa would be limited by the law? → go to jail, in prison,
criminal offence

LEGAL ENTITY (LEGAL PERSON) (phap nhan)

Misconception: the legal person just refer to organization created by the law - not every
organiza can be considered as legal person
only and you're not a legal person - you’re “natural person” (the nhan/tu nhien nhan) bc
we are not created by law, by our parents
 Condition for being legal person
Art 74 civil code

1. Lawfully established
- Established by the authority: PM, minister of education.. (if it is a uni, school…)
- Economic registration certificate (business registration) (if it is a company)
2. Organizational structure
+ Have management body
3. asset /property
Example:
→ FTU2 is not legal entity because its just a department belongs
to a whole university
4. Independently participate in a legal relation
+ Plantifi (in civil case)
+ Defendant (in civil case)
If you legal person you can sue other
If not than you can not sue the organization
Example: they can not sue the hcmc campus on the court, if they sue they need to sure
the foreign trade university
An Limited Life Company (LLC) (cong ty trach nhiem huu han) → legal entity
+1 member
+multi members:
1. Highest: member’s council (hội đồng thành viên)  chairman
2. Director/general director  controlling board (ban kiểm soát)
Example:
- Four of you setting up a company - get debt
→ Property of the company not the member - debt of company not debt of member
- company reliable for that debt not you
 → Your liability to llc is what u contribute to - lose 500 (vốn ban đầu) than that’s
it you don't need to pay more →apply the procedure for bankruptcy (làm thủ tục
phá sản) (xù nợ một cách hợp pháp)
- Secured creditor/ unsecured creditor (chu no co bao dam/khong bao dam) - bank
(secured - have condition)
A brand of a Joint Stock Company → not - dependent unit of company
1. General Meeting of Shareholders
2. Board of Management (hội đồng quản trị)
3. Director  controlling board (điều hành cái 2,3)
- A branch of a JSC is not a legal entity because it is not created by law. A legal
entity is a company or other body that is created by law and has the rights and
obligations of a person.
- A branch of a JSC is not a separate legal entity from its parent company. It is
simply a location where the parent company does business. The parent company
is responsible for the debts and obligations of its branches.

Representative office of a LLC → no - dependant unit of company (not

satisfy condition 3 and 4) you can sign the contract with the beach but
u can not sue

A coffee shop → no - business household (ho kinh doanh ca the) property

of the owner and that business is not separated - can not sue the
coffee shop in the court have to sue the owner

A sole proprietorship (doanh nghiep tu nhan) → no - cannot bankruptcy -

your company, asset, property are the same, use all your property to
pay → unlimited liability - only form that not have legal entity status

Legal entity Not legal entity

VJCC, ministry of industry of sale, Barber shop, branch, representative,
LLC, JSC sole proprietorship

The ministry of finance

- Yes, the ministry of finance is a legal entity in Vietnam. It is a governmental
agency that is responsible for managing the country's finances.
 - Property belong to government (argue) → still under control of
government of vietnam however financially it is independent - own
funding, property - satisfy all 4 conditions
Ho Chi Minh communist youth union and Vietnam student uinion
- Yes