2 câu: 1 câu tình huống + 1 câu bình luận hợp đồng

A contract comes into existence at the time the offer is accepted

1. Valid offer
- Clear and definite: Art. 14 CISG
- Not terminated by:
o Rejection: Art. 17
o Modification (counter-offer): Art. 19.1 modifying reply = counter-
offer = rejection of original offer
o Revocation: Art. 16.1 offer is revocable before acceptance is
dispatched
 Irrevocable offer Art. 16.2: stated irrevovable or offeree
reasonably relied
o Withdrawal: Art. 15.1 only possible before/at the same time the
offer reaches offeree
o Agreement: mutual agreement of both parties

2. Valid acceptance
- Unconditional
o VN CC: mirror approach – no changes, no added condition Art.
393 CC
o CISG: non-material approach; material modification Art. 19
- Within time limit of offer: Art. 18.2
- Silence or inaction = NOT acceptance Art. 18.1
- Mode of communication
o receipt rule: Art. 18/ Art. 400 ‘acceptance = received by offeror’
o postal rule: acceptance = letter has been posted
o electronic: ‘received’ = avail to be read
- Withdrawal: before/at the same time acceptance reaches offerer Art.
22/ Art. 397
- Revocation: not possible bc after acceptance reaches offerer 
contract is formed

Sample cases

A. 6th June: company A in Singapore offered to sell a cargo to company B

in VN for $12,000. 7th June A: declined the offer. 8th June: A offered
$11,000 for the cargo. 9th June: B replied that they would agree to pay
$10,000. A replied that they would need to think abt this and assured B
that they were not carrying on negotiations to sell anyone else. 27th
 June: A wrote to B declining the offer of $10,000. 28th June: B wrote
back accepting the original offer to sell the cargo at $11,000
Can A refuse to sell the cargo for $11,000?
- A and B are based in Singapore and Vietnam, member states of CISG 
CISG applies automatically under Art. 1.1a
- On 6/6 A made an offer of $12,000 for a cargo to B, which B declined in
7/6  This offer is terminated by rejection under Art. 17 CISG
- On 8/6 A made a new offer of $11,000 for the cargo, which B replied
that they would agree to pay $10,000  B made a material
modification, specifically, price change, to the offer under Art. 19.3
CISG  The offer of terminated by modification under Art. 19 CISG. The
reply of $10,000 is considered an counter-offer to the old offer and it
itself is a new offer made by B
- On 27/6 A rejected the offer of $10,000  This offer is terminated by
rejection under Art. 17 CISG
- On 28/6 B made a new offer of $10,000 and A was able to accept or
reject the offer under Art. 15 CISG

B. A seller in Vietnam sent an offer to a prospective buyer in Germany

stating that he was willing to sell a machine and stated that the offer
was open for 7 days. On the last day of that period the buyer faxed to
the seller: "Please fax whether you would accept to deliver over two
months, or it not, longest limit you would give.” Later that day, the
seller sold the machine to a third party and he sent a fax to the buyer
to inform the buyer of this. Before receiving the fax from the seller, the
buyer found a sub-buyer for the machine and sent a fax to the seller in
which he accepted the seller's offer to sell the machine. The seller
refused to deliver the machine to the buyer and so the buyer sued for
non-delivery. Is there a contract between the parties?
- Parties are based in Vietnam and Singapore, member states of CISG 
CISG applies automatically under Art. 1.1a
- The buyer’s fax "Please fax whether you would accept to deliver over
two months, or it not, longest limit you would give.” is not a
modification to the seller’s offer. It is an inquiry seeking for more
information under Art. 19.1 CISG  The original offer is still effective
- When the buyer sold the machine to a third party and he sent a fax to
the buyer to inform him off this  The seller was attempting a
revocation of offer, which under Art. 16.1 CIGS must reach the offeree
before they dispatch their acceptance
- The buyer sent the acceptance via fax before receiving the fax from
the seller, on the last day of the effective period  Acceptance arrived
before revocation, within the time limit, and accept the entire offer 
This is a valid acceptance under CISG Art. 18 and Art. 19, making the
seller’s revocation invalid
- Because the acceptance is valid, there is likely a contract existing btw
parties

C. On April 22nd 2019, Petrolex (Vietnam) sent an offer for sale of oil to
PMI (Singapore) in which there were 6 terms and conditions; delivery
time was in 6,7, 8/2019. The offer was valid until 16h30 May 17th 2019
(which was Sunday).
On 16h30 May 16th Petrolex drafted the revocation of the offer to send
to PMI but because the following day would be Sunday, the person in
charge of sending it was off-work. Therefore, the revocation was sent
on May 18th!
23h18' May 16th PMI sent an acceptance stating that: "We are happy
to accept your offer on April 22nd 2019 about delivery in 6, 7, 8/2019,
and we will come back to discuss with you about the loading of goods
in details"
Petrolex alleged that the acceptance on late Saturday night was a late acceptance and
there was no contract between the parties, therefore, Petrolex didn't deliver the goods.
PMI argued that the acceptance came to the offeror within the time-limit for accepting
the offer therefore, a contract came into existence. Petrolex had breached the contract.
PMI wished to terminate the contract and claimed for damages.
(i) If the parties did not choose the governing law for the contract, which law would
be the applicable law?
(ii) Under the above law, did a contract come into existence?
- Petrolex and PMI are based in Vietnam and Singapore, member states
of CISG  Applying CISG under Art. 1.1a
- On 22/4 sent an offer to PMI  The offer is valid under Art. 14 CIGS: it
is clear, definite (6 terms) and sets a time limit
- Petrolex attempted to revoke the offer on 16/5 but the revocation only
reached PMI on 18/5 which was too late:
o Under Art.16.1, revocation must reach the offeree before they
dispatch acceptance  PMI sent acceptance on 16/5 at 23:18 of
the offer, before revocation reached them  Revocation is invalid
- PMI’s acceptance only accepts the delivery terms of the offer ‘accept
your offer…abt delivery’ and implies negotiation of delivery details ‘we
will come back to discuss loading’
o Under Art. 19.3 this is a material modification because it will
likely modify time and place of delivery in the initial offer  PMI’s
reply is a counter-offer, not acceptance
o Petrolex didn’t respond or accept this counter-offer  No
contract was formed
 Petrolex did not breach the CISG by failing to deliver, PMI’s
claim for termination and damages would likely fail under CISG
rules

D. On Monday, Big Business Ltd. (BB) offers to sell 300 wrist watches to
Going Places Lid. (GP) at USD50 per watch. The offer to GP is sent by
fax and includes the following statement: "Please send an acceptance
by 12pm today. Delivery will occur on Wednesday". GP emails an
acceptance at 10am. The email is accidentally deleted by an
administrative assistant at BB before it is passed on to BB's
management.
Meanwhile, GP enters into a contract with Next in Line Ltd to produce
new wristbands that can be sold with the watches. Advise GP whether
there is a binding contract with BB. Would your advice differ in the
following circumstances, and if so, why?
(a) GP telephoned an acceptance to BB on Monday afternoon.
(b) GP faxed an acceptance to BB before Monday 12pm but the fax
machine at BB failed to print out the fax due to lack of a new printing
cartridge
(c) The offer from BB had stipulated the following statement: "Please
send your acceptance by first class registered post sent before 12pm."
GP sent a letter of acceptance before 12pm but by unregistered post
which was never received by BB.
- Parties are based in Vietnam and Singapore, member states of CISG 
Applying CISG under Art. 1.1a
- (a) GP telephoned an acceptance to BB on Monday afternoon, after the acceptance
period (ends on 12pm)  Under Art. 18.2 CIGS, a late acceptance is not effective  No
binding contract btw parties
- (b) GP faxed acceptance before Monday 12pm but invalid bc no written
info avail (haven’t been printed yet) Art. 18 CIGS
- (c) BB explicitly prescribed a mode of acceptance (registered post).
GP used a different mode, which never reached BB  Under CISG
 Art. 18.2 , acceptance is only effective when it reaches the offeror.
Here, the acceptance was never received, and the wrong method
was used  No contract under CISG

Essential elements of validity of contract

1. Capacity of the parties to contract

- Individuals/natural persons: legal capacity for civil conducts
- Business org.: Business organization must register their businesses and be granted
business registration certificates
o Legal representative: The person who is appointed according to the company’s
charter (Art. 137 CC 2015)
o Authorized representative: The legal representative may authorize another
person to sign and perform contract (Art. 138, 139 CC 2015)
2. Contents of contracts:
- The goods aren’t banned from importing & exporting in both the export & import
countries
- Must include fundamental terms
3. Forms of contract: CISG Art. 18, VN CC 2015 Art. 119 – written form
4. Principles of complete voluntariness
- Fraud Art. 127 CC 2015
- Threat Art. 127 CC 2015
- Mistake Art. 126 CC 2015
5. Legal consequences of invalid contract
6. Performance of contracts
- Seller: Art. 34, 35 CL 2005; Art. 30, 31 CISG
- Buyer: Art. 50, 56 CL 2005; Art. 53, 60 CISG
7. Liability for breach of contract
- Breach of contract:
o Non-performance
o Improper performance
o Who shall prove? – non-breaching party
o How to prove? – by relevant documents
- Damage/loss: Which loss/ damage can be recoverable? Art. 302 CL 2005, Art. 74 CIGS
- Proximate cause: Loss must be proximately caused by the breaching act of the breaching
party
- The rule on presumption of fault: Where one party breached any of its obligations under
the contract, he shall be presumed guilty, and the breaching party shall bear the liability
 for breach of contract. If the breaching party does not want to bear liability, he must
prove that he is innocent or he isn’t at fault.
- Excuses for breach of contract:
o Force majeure Art. 156 CC VN 2015, Art. 79 CISG
o Dirty hand
o A third pary at fault Art. 79.2 CISG
- Remedies for breach of contract Art. 292 CL 2005
o Specific performance of contracts: Art. 297 CL 2005
 Ground for application: Breach of contract + Fault of the breaching party
- Penalty: Art 418 CC 2015, Art. 300 CL 2005
o Penalty level: Art 31 CL 2005, Art 418.2 CC 2015
o Ground for application: agreement + breach of contract
- Damages: A302 CL2005, A419 CC2015
o Differences btw damages and penalty (ground for application)
 Penalty: Pre-agreement, stipulated in the contract. Non-breaching party
doesn’t need to prove loss. Fixed sum of money
 Damages: No pre-agreement. Prove how much loss suffered, must be
‘material…’. Calculated according to actual loss. Ground for application:
breach, loss, loss = direct consequence of breach, burden to prove: Non-
breaching party must mitigate the loss  mitigatable loss can’t be
claimed
- Suspension of performance: A308, 309 CL2005
o Ground for application: similar to cancellation, suspension  3 options
o Legal consequence:
 Suspended contract is still effective  parties can come back and
continue the contract
 Aggrieved parties can claim damages
- Stoppage of performance: A310, 311 CL 2005
o Ground for application: similar to cancellation, suspension  3
options
o Legal consequences:
 Contract is terminated from the date when one party
receives the notice on stoppage
 From that time: parties no longer have to perform future
obligations. Each party must still fulfill reciprocal
obligations that were already due or performed before the
stoppage.
- Cancellation of contracts: A312, 313, 314 CL 2005
 o Ground for application (A312)
 Pre-agreement stipulated in the contract
 Fundamental breach: non-breaching party can’t achieve its objective
when entering the contract
o Legal consequences of cancellation: Ineffective from the moment contract is
form (cease the existence of the contract) and parties must return all the
received from the contract

Contractual clauses
1 Parties to the contract
- Name: stated in business registration certificate
- Address: stated in business registration certificate
- Capacity of the party
2 Name of goods
- Use the precise name of good: name + trade name/ scientific name, place of origin,
manufacture’s name, major specifications, main use purpose
3 Quantity of goods
- The must be a unity on the unit of measurement
- Method of drafting
o A precise quantity
10 Q7 Audi cars, 100 Macbook laptops
o A precise quantity + tolerance
10,000 MT rice +/- 10%
4 Quality of goods
- Clearly define main characteristics of good
- Use one or a combination of the following methods
o As per national standard: which country’s standard, standard number, year of
issuance
o As per general customary criteria: FAQ, GMQ,…
o As per description of goods: describe as many details as possible
o As per sample: party preserve the sample for comparison
o As per inspected and approved: place of inspection, inspecting agency, method
of inspection, quality certificate (preliminary/ final)
5 Price and payment
- Price
o Select the currency
o Pricing method:
  The price is specified at the time of signing the contract and cannot be
modified if otherwise specified
 The price will be determined after signing the contract and during the
performance of the contract
 Price adjustment: to protect parties’ interest in the event of price
fluctuations in the market
- Payment: clearly specify date of payment, method of payment
o Select one of the following methods of payment: cash payment, bank transfer,
letter of credit (L/C) – double check whether L/C is consistent w the contract
o Contract: delivery in June. L/C: delivery before 15/6. Seller delivered on 20/6 
Seller violate L/C = don’t receive payment from bank. Difference btw contract
and L/C  Seller must for amendment, buyer refuses  Buyer violates Payment
clause
6 Shipment: clearly specify the date of delivery, place of delivery, shipment method
- Time: select a specific date o\r a time period
- Place of delivery: clearly specified in the contract, otherwise will be determined by law
7 Language
- Usually, international sale contract is drafted in 2 languages
- To avoid conflicts which may arise from inconsistency in the contents of 2 versions,
parties must select a preferred language
8 Force majeure
- Give a definition of FM or draw up an open list of typical FM events
- Clearly specify the obligations of the parties in breach
- Stipulate the legal effects