商法案例英文版ppt全套教學(xué)課件

1、Chapter One Company Law Introduction “The limited liability corporation is the greatest single discovery of modern times. Even steam and electricity are less important than the limited liability company.” Professor N. M. Butler President of Columbia University Section One Corporate Personality 1. Do

2、ctrine of Corporate Personality This artificial person has most of the legal rights of a natural person: it may sue or be sued as though it were a real person, it must pay taxes, it may apply for business licenses in its own name, it may have its own bank account, and it may hire employees, and so f

3、orth. 2. “Piercing the Corporate Veil” Factors (1) failure to maintain adequate corporate records and messing up corporate and other funds,(2) grossly improper capitalization, (3) diver-assets, (4) the formation of the corporation to avoid an existing obligation, (5) the formation of the corporation

4、 to perpetrate a fraud or conceal illegality, and (6) a determination that injustice and inequitable consequences would result from the corporate entity. Case StudyCase: Salomon v. Salomon & Co., Ltd. 1897 A.C. 22 Case Study Questions:What are the basic facts of Salomon case?Shall Mr. Salomon be per

5、sonally liable for the debts of the company to third party? What do you think of the judgments of high court, the Court of Appeal and House of Lords? Which judgment do you agree with? Case StudyCase 1-1-1: Carte Blanche Pte Ltd v. Diners Club International Inc. Section Two Formation of Corporations

6、1. Process of Incorporation a) Preparing articles of incorporation (in some American states called the charter or the certificate of incorporation) according to the requirements of local lawb) Signing of the articles by one or more incorporators MBCA 1.(f)c) Submitting the signed articles to the con

7、cerning government institute for filing MBCA 2.012. Incorporators The person or persons who execute the articles of the incorporation are called “incorporators.” Traditionally, at least three incorporators were required; but quite a few American states and even China today require only one incorpora

8、tor.3. Articles of Incorporation 4. Ultra Vires Doctrine Whenever a transaction was beyond the corporations limited purposes or powers, either party to the contract could cancel it despite of the other partys full or partial performance. 5. Pre-incorporation Transactions A corporation is not depende

9、nt on a contract made by its promoter for its own interests unless the corporation takes some affirmative action to execute such a contract. The promoter is liable in person for all contracts made on behalf of the corporation before its existence unless the promoter is exempted by the terms of the a

10、greement or by certain circumstances. 6. De Facto Corporation Doctrine and Corporations by Estoppel The imperfect in incorporation cannot be overlooked thus the association cannot be legally accepted as a de facto corporation. In such a context, there is no corporation. If the involved individuals p

11、roceed to run the business in spite of such irregularity, they may be held personally liable as partners for the businesss debts.Case StudyCase: Newborne v Sensolid (Great Britain) Ltd (1954) CA Case Study Questions:What was Mr. Newbornes status when he signed the confirming letter ?Is it true that

12、because Mr. Newborne is personally liable on the agreement, he could enforce the agreement in his personal capacity?Case StudyCase 1-2-2: American Vending Services, Inc. v. Morse Section Three Corporate Finance 1. Corporate Stock The ownership of one or more shares of stock of a corporation is a man

13、ifest of membership in the corporation. The stock of a corporation may be classified into common stock and preferred stock. 2. Acquisition of Shares Shares of stock may be obtained in two ways: (1) from the corporation by subscription, either before or after the corporation is organized, or (2) by t

14、ransfer of existing shares from a shareholder or from the corporation. 3. Rights of Shareholders a) Ownership Rights b) Right to Vote c) Preemptive Offer of Shares d) Inspection of Books e) Dividends f) Capital Distribution g) Shareholders Actions 4. Liability of Shareholders Generally, a shareholde

15、r has limited liability. This means that the shareholder is not in person liable for the debts and liabilities of the corporation. 5. Bonds A bond is a filing promising to pay back a loan of money to a corporation. The relationship between the bondholder and the issuing corporation is that of credit

16、or and debtor. Case StudyCase 1-3-1: Weston v. Weston Paper and Manufacturing Co. Case 1-3-2: State Ex Rel. Pillsbury v. Honeywell, INC. Section Four Corporate Fiduciary Duties At the core of corporate law lie duties of trust and confidence fiduciary duties owed by those who control the corporate ma

17、nagement system to the body of constituents known as the “corporation”. 1. Duty of CareThe duty of care asks for the attentiveness and prudence of managers when performing their decision-making and supervisory roles. According to the statutory standards, a director must execute his duties in good fa

18、ith, in a manner that could be reasonably believed for the best interests of the corporation, and become informed in performing their decision-making and oversight functions with the care a person in similar position would reasonably believe appropriate under the circumstances. The business judgment

19、 rule is a rebuttable presumption that directors are honest and well-meaning while performing their functions, and that their decisions are informed and rationally undertaken. The business judgment rule presumes directors do not breach their duty of care. 2. Duty of Loyalty The duty of loyalty deals

20、 with fiduciaries conflicts of interests and forbids fiduciaries to put their own interests ahead of the corporations. Corporate fiduciaries breach their duty of loyalty if they divert corporate assets, opportunities, or information for personal gain. Case StudyCase 1-4-1: Shlensky v. WrigleyCase 1-

21、4-2: Klinicki v. Lundgren Mergers & Acquisition, and Dissolution 1. Mergers and Consolidations Upon a statutory merger, the surviving or new corporation automatically has title to all assets of the disappearing corporations, and inherits all the liabilities of those corporations. Shareholders in all

22、 the corporations involved are entitled to receive whatever consideration is specified in the plan of merger. 2. Voluntary Dissolution Most American state statutes include systematic provisions for dissolution previous to commencement of business by the incorporators or initial directors and dissolu

23、tion at any time with the consensus of the shareholders. Case StudyCase : Alpert v. Williams Street Corp.473 N.E.2d 19, 26 (N.Y. 1984)Case Study Questions:What are the basic facts about Alpert v. Williams Street Corp. case? What is the principal issue that the court deals with?Did Madison 28 Associa

24、tions exclusion of Alpert through two-step merger violate the state law? How does state law protect shareholders dissenting from a merger? What is the basis for the courts decision? Chapter Two Contract LawIntroductionDefined as Enforceable legally binding agreementA promise or a set of promises for

25、 the breach of which the law gives remedy, or the performance of which the law in some way recognizes as a dutyAn agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at lawSection One Elements of a Contractelements of a contract are: (a) a contra

26、ct is an agreement; (b) entered into by and between competent parties; (c) made for legal purpose; (d) to carry out parties free will; (e) in exchange of something of value; (f) in proper form if required by law.Case StudyCase : Lucyetal.v.Zehmeretal.84 S.E.(2d) 516,196 Va. 493 (1954)Case Study Ques

27、tions: 1, What is the legal issue of the case?2, If evidence showed Zember was intoxicated as high as a Georgia pine, should the decision be different?3, Does the Supreme Court of Appeals of Virginia consider the contract of transferring the farm an agreement or “merely a joke”?Case StudyCase 2-1-2:

28、 Goldsworthy v Brickell and AnotherParker LJ , 16 July 1986“Upon whatever precise basis it is sought to uphold a transaction which was originally obtained by undue influence it is an essential ingredient that it would be inequitable to allow the influenced party to set aside the transaction.”Case st

29、udyThe High Trees caseCentral London Property Trust Ltd v High Trees House Ltd 1947 K.B. 130Case study questions:1, How do you understand the doctrine ofpromissory estoppelinEnglish contract law?2, In common law countries, consideration as a condition for a valid contract is slowly eroding in modern

30、 practices, especially in commercial transactions. In this case, was the full payment of rent held to be enforceable or unenforceable held by the Kings Bench?Section Two Formation of a ContractA contract is based on an agreement, and every agreement involves an offer followed by an acceptance. An ag

31、reement arises when one party makes an offer, and the other party accepts it. Effective offerThree requirements are necessary for being an effective offer:a) Contractual intentionb) Definitenessc) Communication to specific offeree(s)Valid offerThree elements are essential for being a valid offer:a)

32、By the offereeb) Unconditionalc) Within the time limit and in the proper mannerMajor difference in the two major legal systemsDifferent rules as to offer and acceptance:civil law applies “receipt rule”, common law turns to “postbox rule”Case StudyJOSEPH F. PAPA, JR., ET AL. v.NEW YORK TELEPHONE COMP

33、ANY ET AL.Case Study Questions: 1, Is Papas application an offer or acceptance? The failure to include Papa in the yellow pages is a rejection of Papas offer or contractual violations and negligent actions of the respondents?2, Has a contract entered into by and between Joseph F. Papa, JR. And New Y

34、ork Telephone Company?Cast studyMoulton v. Kershaw and Another Supreme Court of Wisconsin, 1884.59 Wis. 316, 18 N.W. 172. 59 Wis. 316, 18 N.W. 172. (1884)Case summaryIn this case, what was the offer? And what was the acceptance? If Kershaws letter really was an offer, and Moultons letter really was

35、an acceptance, then there would definitely be a contract. Kershaw won by convincing the Court that their letter was simply a request to receive an offer. The true offer in this case was Moultons letter, and Kershaw never accepted the offer. Complete the following case brief:Facts: Issue: Rule: Analy

36、sis:Conclusion:Section Three Breach of Contract and RemediesParties to a contract are obligated to perform the contract thoroughly and completely in accordance with the terms and condition.Breaches A failure to perform or act called for by the contract, nonconforming performance,nonperformancesuperv

37、ening impossibility of performance delay in performance/ delayed performanceanticipatory breachbreach of warranty/ minor breach breach of condition / material breachRemedies Usu. available for the nonbreaching partyspecific performance, damages, liquidated damages, rescission, restitution, and injun

38、ction.Case studyCehave N.V. v Bremer Handelgesellschaft m.b.H. (The Hansa Nord)1976 QB 44 Court of AppealCase Study Questions: 1, How do you understand “warranty” and “condition”?2, Do you think the buyer is entitled to reject the shipment and seek for compensation? Are the judgments delivered in th

39、e English Court by the judges, Denning and Ormrod, to the similar effect?Section Four Discharge of a ContractCategorized into discharge by performance, discharge by action of parties unilaterally or jointly discharge by external causes beyond the control of the contracting partiesconsensual discharg

40、estatutory dischargeChapter Three CISGIntroduction CISGThe 1980 Vienna Conventionover 50 years of negotiationsdrafted by UNCITRALAdopted in Vienna in 1980 effect since January 1, 198881 contracting statesOrganized in four partsOrganized: Party Article 1-13: sphere of application and general provisio

41、nsParty Article 14-24: formation of the contractParty Article 25-88: sale of goods (rights and obligations of buyers and sellers)Party Article 89-101: final provisions (ratification and the entry into force of the Convention)CoverageCISG applies to international sale of most commercial goods that ar

42、e movable and tangible. governs contractual issues such as the formation of contractsthe remedies available to buyers and sellersSection One Formation of a CISG Contract Like contract laws in most countries, CISG agrees that contracts are formed through offer and acceptance. Art. 23a contract is con

43、cluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention.OfferArt. 14A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the

44、 offeror to be bound in case of acceptance.RequirementsEffectiveness WithdrawlRevocation AcceptanceArt. 14A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptanceFormTimeAcceptance with modificat

45、ionsSection Two Obligations of Buyer and Seller“Sales of Good”, as Party III of the Convention, governs the obligations and remedies of sellers and those of buyers with Chapter II and Chapter III. The relevant articles are including but not limited to those in the brackets.Obligations of Seller Deli

46、very of goods (Article 31 and Article 32 concerning place for delivery, Article 33 regarding time for delivery)Handing over of documents (Article 34)Conformity of goods (Article 35, Article 36 concerning the sellers assurance of the quality of the goods, Article 41 and Article 42 regarding the selle

47、rs assurance of the ownership of the goods)Obligations of BuyerPayment of the price (Article 53-56, Article 57 concerning place for payment, Article 58 and Article 59 regarding time for payment)Inspection of the goods (Article 38, Article 39)Taking delivery (Article 60, Article 66-70)Case studyCase:

48、 Treibacher v. TDY D.C. Docket No. 01-02872-CV-HS-NECase study questions:1, Has the buyer in following case fulfilled is obligation of taking delivery?2, What are the main grounds for the judgment of the district court?Section Three Remedies for BreachRemedies for Breach of a CISG ContractIn Chapter

49、 II and Chapter III of CISG, the relevant articles are including but not limited to those in the bracketsBuyers RemediesRemedies for breach of contract by the seller are provide in Section III of Chapter IIDamages (Article 45)Specific performance (Article 46, Article 47)Request for repair and substi

50、tution (Article 46)Avoidance (Article 49, Article 51 )Reduction in price (Article 50)Refusal to taking early delivery or excessive quantity (Article 52)Sellers RemediesRemedies for breach of contract by the buyer are provide in Section III of Chapter IIIDamages (Article 61)Specific performance (Arti

51、cle 62)Avoidance (Article 64 )Missing specification (Article 65) Some of Provisions Common to Sell and BuyerFundamental breach (Article 25, Article 51, Article 70)Anticipatory breach (Article 71 concerning suspension of performance, Article 72 regarding anticipatory avoidance)Installment contracts (

52、Article 73)Damages (Article 74-77)Exemption (Article 79, Article 80)Case studyCase: Fucinati S.p.A. v Fondmetall International A.B.Case study questions:1, which law is the one governing the contract in the case?2, Could hardship be a ground for avoidance in accordance with any article of CISG?Case s

53、tudyCase: St. Paul Guardian Insurance Company and Travelers InsuranceCompany v.Neuromed Medical Systems & Support, GmbH, et al. Case study questions:1, In the following case, When did the risk of loss pass from the seller to the buyer held by the court?2, How the risk of loss is dealt with by CISG c

54、hapter IV of part III?Chapter Four Agency LawIntroduction The basic theory of the agency device is to enable a person, through the services of another, to broaden the scope of his activities and to receive the products of anothers efforts, paying such other for what he does but retaining for himself

55、 any net benefit resulting from the work performed .In the eyes of law, an agency is “a fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or actions” .Section I

56、 The Agency Relationship 1. Defining the Agency RelationshipAn agency relationship comes into existence when one person agrees to act on behalf of and subject to the control of another one.Principle Agent It is an accepted principle of agency that the term “agent” includes both natural persons and c

57、orporations. 2. The elements of an Agency Relationship A) Consent:B) Control:In brief, it means that the agent must respond to the directions of the principal. it is the element of constant subjection to the will of the principal which differs the agent from other fiduciary and the agency agreement

58、from other agreements. C) On behalf of :The acting party must be behaving “on behalf of” the principal in order to have the special powers and liabilities that come with the agency relationship. An actor is an agent of another only if it is agreed that he is to act primarily for the benefit of the o

59、ther and not for himself. 3. The Dual Agency RuleThe rule requires that an agent cannot act on behalf of the adverse party to a transaction in relation to the agency without the permission, express or implied, of the principal. If the two principals do not know the double employment, the transaction

60、 between them is voidable. Case StudyCase 4-1-1: Yeiverton v. LammCase 4-1-2: Thayer v. Pacific ELec. Rwyl Section Two Internal Matters: Rights and Duties between Agent and Principal 1. Duties of Principal to Agent (a) to pay compensation for services rendered when compensation reasonably occurs, (b