Lesson 11 + 12 RECAP Flashcards
Indeholder lidt fra alle lektioner (30 cards)
What are the four phases in the lifecycle of a contract?
Pre-contractual phase, contract formation, operative phase, and post-contractual obligations.
What is the legal function of a Letter of Intent (LOI)?
To express the intent to negotiate or conclude a contract — may be binding or non-binding depending on wording and context.
What is the key risk associated with ambiguous pre-contractual documents?
They may unintentionally create binding obligations and lead to pre-contractual liability.
How can you make clear that a document is not legally binding?
Include “subject to contract” clauses, disclaimers of liability, and use non-committal language like “intends to” or “may”.
What is “culpa in contrahendo”?
A civil law doctrine imposing pre-contractual duties of good faith, e.g., not breaking off negotiations arbitrarily or misleading the other party.
Which civil law systems codify duties of good faith in negotiations?
Germany (§311 BGB), France (Art. 1112 Code Civil), Italy, Switzerland, Denmark (§36 Contracts Act).
How does common law treat pre-contractual negotiations?
Generally allows withdrawal without liability, unless a contract exists or specific obligations are explicitly agreed.
What is “consideration” and where is it required?
A bargained-for exchange that forms the legal basis of a promise — required in common law systems but not in civil law.
What elements are required for contract formation?
Offer, acceptance, intention to be legally bound; plus consideration in common law.
What is the role of “synallagmatic obligations” in civil law?
It reflects the mutual exchange of duties, which replaces the need for consideration.
What determines governing law if not chosen in the contract?
Rome I (habitual residence of service provider), Rome II (place of damage), or national conflict-of-law rules.
What determines jurisdiction if not agreed upon?
Brussels Ia Regulation (EU), Lugano Convention, or domestic law (often based on defendant’s domicile).
What is a typical governing law clause?
“This Agreement shall be governed by and construed in accordance with the laws of [Country], excluding its conflict of law principles.”
What is a jurisdiction clause used for?
To establish which court or tribunal will have the authority to resolve disputes.
What is the doctrine of “ordre public”?
A national court can refuse enforcement of foreign awards/judgments if they violate public policy.
What is the difference between litigation and arbitration?
Litigation is through state courts, arbitration is a private, binding process with easier international enforcement under the New York Convention.
What are typical advantages of arbitration?
Confidentiality, faster process, choice of arbitrators, enforceability across borders.
What clause is required to initiate arbitration?
An arbitration clause within the contract, clearly stating the seat, rules, and scope.
What governs enforcement of arbitral awards internationally?
The New York Convention (1958) on the Recognition and Enforcement of Foreign Arbitral Awards.
What’s the main limitation of arbitration compared to litigation?
Generally no appeal mechanism and potentially high costs.
What are the key components of a typical international contract?
Preamble, operative clauses (primary/secondary), framework provisions, post-contractual obligations.
What is the difference between primary and secondary operative provisions?
- Primary: deal with core obligations (e.g., price, delivery)
- Secondary: deal with risk management (e.g., liability, indemnity)
What are examples of framework clauses?
Choice of law, jurisdiction, assignment, waiver, entire agreement, termination.
What is a liquidated damages clause?
A pre-agreed sum payable upon breach — valid if it reflects a reasonable estimate of loss.
