Assent is Not an Element of Contract Formation

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

Download Full-text

Contract Formation in Taiwan

10.1093/oso/9780198808114.003.0015 ◽

2018 ◽

Author(s):

WU Ying-Chieh

Keyword(s):

General Requirement ◽

Reasonable Time ◽

Contract Formation

This chapter examines the rules of offer and acceptance in the formation of contract in Taiwan law. An offer is binding unless: the offer states otherwise, the revocation reaches the offeree before or at the same time as the offer, or if the offeree does not respond within a reasonable time. An acceptance only becomes effective when it reaches the offeror. The postal rule does not apply, but if the postal acceptance is delayed for reasons not attributable to the offeree, the offeror who knows of the delay must inform the offeree of it, otherwise the offeror will be bound at the time that the acceptance would normally have arrived. In a ‘battle of forms’ situation there is no binding contract if the different terms are core to the contract. Silence may amount to acceptance if communication of acceptance is waived by the offeror or by custom, or acceptance by conduct is inferred. There is no general requirement of form for a valid contract, but exceptionally, formalities are necessary.

Download Full-text

Contract Formation in Hong Kong

10.1093/oso/9780198808114.003.0010 ◽

2018 ◽

Author(s):

Lusina HO

Keyword(s):

Hong Kong ◽

Social Context ◽

Common Law ◽

General Rule ◽

Good Faith ◽

Local Context ◽

General Duty ◽

Contract Formation ◽

Formal Requirement ◽

The Law

This chapter examines the law on contract formation in Hong Kong which is closely modelled on the English common law but adapts the English solutions to the local context if and when required. The test for ascertaining the parties’ meeting of the minds is objective, the agreement (an offer with a matching acceptance) must be certain, complete, and made with the intention to create legal relations—the latter being presumed to be present in a commercial context and absent in a familial or social context. Offers are freely revocable although the reliance of the offeree is protected in exceptional circumstances. Acceptances become effective as soon as they are dispatched. In the ‘battle of forms’ scenario, the Hong Kong courts follow the traditional ‘last-shot’ rule. There is no general duty to negotiate in good faith, and even agreements to negotiate in good faith are normally unenforceable for lack of certainty. As a general rule, contracts can be validly made without adhering to any formal requirement. Online contracts will normally be valid and enforceable; the formation of such contracts is governed by common law as supplemented by legislation.

Download Full-text

Introduction to Problems of Performance

10.1093/oso/9780199731404.003.0046 ◽

2018 ◽

Author(s):

Melvin A. Eisenberg

Keyword(s):

Contract Price ◽

Contract Formation ◽

Specific Performance ◽

The Right ◽

A Performance

This chapter provides an introduction to problems of performance, which for the most part concern post-contract formation issues, such as a promisee’s rights where the promisor has rendered a performance that is imperfect but substantial. Generally speaking, problems of performance concern sanctions for breach other than damages or specific performance, such as suspension of performance or termination of the contract by the aggrieved party. These sanctions are often much more severe than damages. For example, if a promisee has the right to terminate a contract the promisor may lose the profits she would have earned if the contract had continued in force, as well as the value, or at least the contract price, of the performance she rendered before the contract was terminated.

Download Full-text