BUSSINESS CONTRACT

Art 385 – Vietnam Civil Code 2015:

DEFINITION
Civil Contract:
- Agreement
- Parties (individual, organisation)
- Civil rights and obligations
Ex: Rent contract,..
Art 3.2 + Art 401.2
ESSENCE OF CONTRACT
Be careful with what you sign, as it is binding onto you
Contract = Law

CLASSIFICATION OF CONTRACT
Bilateral Vs Unilateral Law
Bilateral: each party has an obligation to the other (hop dong song vu)
Uniltateral: only one party has an obligation (hop dong don vu)
Lease contract ~ Rental contract
Reward contract: hua thuong ~ not a contract ~ only a promise not a contract
Ex: Parents give kid a car: unilateral

Principal Vs Ancillary contract

Principal Contract: effectiveness, not depend on other bussinesses
invalid  may lead to the validity of the ancillary contract
Ancillary: effectiveness  depend on a principal contract
if invalid  have no effect on the principal contract

Mortgage: thế chấp; credit contract: hợp đồng tín dụng

Loan bank: need to make sure that you have the financial capacity to return the money
you loan  need to sign security contract/ collateral contract (hop dong bao dam)
Pledge: cầm cố
Mortgage: thế chấp
Guarantee: Bảo lãnh

Contract for the benefit of a third person: is a contract whereby contracting parties must
perform obligations for the benefit of a third person
Conditional contract: the performance of which depends on the occurrence, modification
or termination of a specified event
Di chúc: hành vi pháp lí đơn phương, 0 cần đồng ý hay ko
Testament
Sign a contract already but only perform obligations when the specified event
happen

Hop dong thu mua nong san: only purchase a vegies when it’s the time of the year

COMMERCIAL CONTRACT

Law on Commerce Art 2.

1. Traders (thương nhân): Conduct commercial activities normally refer to
companies (indi) having business registration
2. Other organizations and individuals related to commerce-related activites
3. Individuals who independently and regularly conduct c.a without having to make
business registration (doanh nhan)

Object: Goods, service (hang hoa, dich vu)

Art 3.2
a. All types of moveables (động sản), including those to be formed in the future
b. Things attched to land
No one can own land, land is managed by the State, not us, we only have the land use
rights (depend on the country)

Art 24 & 74
1. Contracts for sale and purchase of goods may be expressed in verbal or written
form or established by specific acts (self-act)
2. Goods provided by law must be made in writing, such provisions must be
complied with. (export & import contract) equal validity with documents
Hợp đồng mua bán hàng hoá quốc tế (export & import contract)

Art 4.
Priority when applying law for commercial activites: Specific Law (Specialized Law:
luat chuyen nganh)  Commercial Law Civil Code
Example of specialized law: Law on insurrance business, Law on Real estate, Law on
enterprises, Law on security (luat chung khoan), Law on tax administration, law on
foreign trade management, competition law
REVIEW SESSION
1. Sales contract must be made in writing: False, it can be made in oral form
2. Franchise contract must be made in writing: True, other equivalent to the written
form
3. Commercial contract is governed by the Commercial Law only: False, need to
based on other relevant laws, too.
4. The applicable law for the contract signed between two Vietnamese companies
could be the Chinese Law if the parties so decide: False, no foreign element.
Depends on whether the Law be contrary to the principles of VN Law: theres a
condition, the contract involves foreign elements (what is it?? The law is silent in this
issue)  based on Civil Code next (foreign representative: not party)
Art 663. 2 Foreign element including
- Foreign enity
- Happened in foreign country
- Subject matter located in a foreign country (doi tuong cua hop dong)

OFFER AND ACCEPTANCE

Stages of making a contract:
- Negotiation
- Formation of the contract
- Performance of the contract
- Dispute resolution
Offer: Đề nghị giao kết hợp đồng
Acceptance: Chấp nhận giao kết hợp đồng
Both sides can offer a contract
Buyer offer an ofer to buy things: PO (Purchase Order)
Contract is formed at the time when the offer and acceptance satisfy all section of law
1. OFFER
Criteria of an offer: need to check theres intention to be bound bu such offer made
Offeree: specific
Consist of 3 elements to be an offer
Compulsory term: show the goods, entity, and the price (only in the cisg)
Withdrawal
Not necessarily a person, can be anomynous. VN law:
Inquiry (thư hỏi hàng): whether goods r available,… just ask for information only? Send
inquiries to many ppl >< offer

Validity: sellẻ keep it in mind  binding to the offerer

Inquiries: not offer
Mass distribution of a cayalogue of merchandise
Brochures
Advertisement: invitation to treat (negotiate with the seller)  not an offer yet
However, it may depend on the situation. If a company posts website/fb, “1st 10 ppl come
to the store get … discount”  yes, contract  intention is clear that they want to sign a
contract. Contract in vn law can be to the public
Depend on the law
Cisg is applicable if the parties r members of CISG community
Have to aply cisg when there are a conflict

Withdrawal and revocation

Art 15.2
Art 16 CISG
Save to send the withdrawal

- specified time that is irrevocable

- the offeree believes that the offer is irrevocable
2. Chào hàng dù là loại chào hàng không hủy ngang vẫn có thể bị hủy nếu như thông báo về việc hủy chào hàng đến
người được chào hàng trước hoặc cùng lúc với chào hàng.
Ðiều 16:
1. Cho tới khi hợp đồng được giao kết, người chào hàng vẫn có thể hủy ngang chào hàng, nếu người được chào
hàng nhận được thông báo về việc hủy ngang trước khi người này gửi thông báo chấp nhận chào hàng.
2. Tuy nhiên, chào hàng không thể bị hủy ngang:
a. Nếu nó chỉ rõ, bằng cách ấn định một thời hạn xác định để chấp nhận hay bằng cách khác, rằng nó không thể bị
hủy ngang, hoặc
b. Nếu một cách hợp lý người nhận coi chào hàng là không thể hủy ngang và đã hành động theo chiều hướng đó.

The time to withdraw is shorter than the time to revoke

Cannot send the acceptance beyond the acceptance time, cannot be revoked
An offer could also be withdrawn if the circumstances of withdrawal is notted by the
offerer
Revocation is available if the rights to do so are specified in the offer

389, 390
If you want to withdraw, the withdraw must come before + at the same time
VN law: more flexible  more condition for an offer to be withdrawn
(circumstances specified in an offer be arisen)  protect the offerer
You can revoke as long as the offeree hasn’t send u an acceptance
The time of revocation has to be specified
Always mention the time of acceptance in the offer in the reality
As long as we mention the rights to revoke  VN civil code is more flexible for the
offerer
The right of the offerer to revoke/withdraw

True/false statements
1. An advertisement on social media could constitute an offer if the applicable law is
the vietnam’s law  true, only false when apply the CISG
2. According to the vietnam’s law, the withdrawal is always allowed if the
withdrawal reaches the offeree before he has dispatched an acceptance  false,
must withdraw prior to or at the same time the offeree receiving the offer
3. According to the CISG, the revocation reaches the offeree before he has
dispatches an acceptance  false, must satisfy the 2 conditions in the Art 16.
CISG
ACCEPTANCE
1. The offeree shall accept the entire content of the offer
If you change a minor thing, any changes to the original offer  constitute a new
offer (couter-offer)
Accept 100% of the offer without any changes (VN law)
Do not materially alter the terms of an offer  still can be accepted (CISG)
The list in the CISG is not inclusive

Ex: 1 email acceptance but suggest

Depend on the applied law  VN law  must formulate a new offer
CISG  more flexible  diversity of language  can be an acceptance
CISG is more flexible
Ex: choose the arbitration instead of the court  acceptance of not?
Settlement of disputes  alter the terms materially

2. The acceptance must be receiver within the time limitation set forth in the
offer
Art 393 civil code, Art 18.1 CISG
Example: send money to the offerer (make a payment)

In law, Silence is not an acceptance

Clear evidence to reject the offer, but in the law, silence is also considered a rejection
No contract??
Custom  long-term contract  silent  contract is created
3. The acceptance shall not be withdrawn
- Vn

Y wins the case because as X asked Y to reduce the price

One condition  counter offer made  the original offer is terminated
 26/5 the original offer is invalid  no contract between X and Y  X is not allowed
to clam for damages
If both parties are from VN, the result would remain unchanged
International treaties: dieu uoc quoc te

Add conditions  the offeree made a new offer

CISG only sales on goods contract: not applicable on offer for work contract
REQUIREMENTS FOR A VALID CONTRACT
1. Parties to the contract [Capacity]
2. Voluntary consent of the parties (đồng thuận giao kết hợp đồng)
3. Ourpose and Content of the contract [legality]
4. Forms of the contract

1. Parties to the contract

The parties have civil legal capacity and capacity for civil acts appropriate to the
established civil transaction
Năng lực pháp luật + Năng lực hành vi
civil legal capacity (ảt 16-18 civil code)

Legal entity: Pháp nhân

Legal person: made by law aka some of the organizations

Main conditions of an organization to be a legal entity:

1. Legally established
2. Well-organized structure
3. Asset >< property (tai san ca nhan khac tai san chung)
4. Independently participate in legal relations
FTU2 is still a dependent unit from FTU1, facilities belong to the main campus  not
legal entity
Legal entity/not?
Sole trader (sole propriatorship)  No  sue the owner of the company only (4)
Types of businesses: sole propriatorship, shareholding company, limited liability
company (cty TNHH),…
Representative office (văn phòng đại diện)  dependent  no (4)
Branch of a company  no cause branch is just extension  (3) (4)
As LLC  Yes
Charter capital (von dieu le): total value of assets that have been promised or contributed
by the members/partners/owners
Bankrupcy
Thủ tục phá sản: xoá nợ