Tiếng anh pháp lý đề bài process of creating a new law invietnam

US law also provides for exceptions when acontract does not comply with the written form but still has legal effect.Article 401 of the 2005 Civil Code of Vietnam stipulates that a contra

BỘ TƯ PHÁP TRƯỜNG ĐẠI HỌC LUẬT HÀ NỘI

BÀI TẬP HỌC KỲ

MÔN:

TIẾNG ANH PHÁP LÝ

ĐỀ BÀI:

PROCESS OF CREATING A NEW LAW IN

VIETNAM

Hà Nội, 2022

A, INFORMATION SECTION

- Topic :

- Group :

- Class : N12.TL2

- Group member/ role:

1 ,

Vũ Hạnh Linh 462434 : Leader

2 , Trần Ngọc Minh 462438 : Member

3 , Nguyễn Thị Thùy Linh 46243 : Member

4 , Phạm Khánh Linh 46243 : Member

PREMABLE

In the era of industrialization and modernization, between enterprises in many different areas exist business relationships expressed through contracts, from which contract law performs as a means of guaranteeing fairness to all parties involved in this relationship The law, in both Vietnam and the USA, has developed principles that determine when a legally enforceable contract is present, law then dictates whether terms of a contract are enforceable In this paper, our goal, while understanding the apparent similarity, is to distinguish between Vietnam and the USA’s contract law, and determine whether these differences affect the respective countries’s enterprises

B, CONTENT

I Definition of contract law

Definition: A contract is a voluntary agreement between two parties, based

upon the exchange of promises or actions, that is enforceable by law

More specifically, in Vietnam, a contract is defined as “an agreement between parties to create, modify, or extinguish a civil right or duty.”1

Contract law is the body of law that relates to making and enforcing agreements, this area of law governs making contracts, carrying them out and fashioning a fair remedy when there’s a breach

A variety of our activities require contract law, for example when we purchase groceries or seek employment; both companies and consumers can participate in a contract A contract makes sure there's no misunderstanding between two parties and contract law guarantees fairness for all parties when the contract is carried out

II Comparison of Vietnamese and American contract law

1 Similarities

Each country will have its own legal system, comes from different conditions

in each country which means that there will be differences in each set of laws and regulations And contract law is not the exception

Regardless of the legal lineage, it matters concept of the contract of the United States and Vietnam They all have the following things in common:

First, yes agreement (or commitment) between the parties join the relationship The first essential element of a contract is a mutual agreement A

1Article 385 of 2015 Civil Code

mutual agreement must be made at the parties’ free will or otherwise it will not be

an agreement It is not possible for a person who has no ability to make a reasonable decision to understand terms of a contract and then communicate his or her intention to agree to these terms Therefore, in order to make a valid, enforceable contract, both parties must be regarded as having capacity in law to enter into such an agreement

Second, the agreement (or commitment) of the parties giving rise to the legally binding (legal obligation)

Third, capacity for civil acts, as a person’s ability to create, exercise civil rights and perform civil duties Capacity for civil acts is subject to the categories of age and mental development.Under both Vietnamese and US contract law, an adult

is entitled to the presumption of full competence to contract unless there is sufficient evidence to rebut such a presumption, such as mental defects or intoxication.2 An adult means a person who is at the age of majority In most states

of the US, the age of majority is 18.3 Under Vietnamese law, the age of majority is also 18

2 Differences

a Form of contract

The form of a contract is a means of recording the legal rights and obligations agreed upon by the parties

According to US law, the form of a contract is determined by the parties themselves The provisions on the written form of the contract only protect the necessary public interests and avoid the phenomena of fraud and fraud The court only intervenes to force the obligee to fulfill its commitments themselves, if the

2 “An adult shall have full capacity for civil acts except for the cases provided in Article 22, 23, and 24 of this Code.” (Article 20.2 of 2015 Civil Code of Vietnam)

3 See Claude D Rohwer & Anthony M Skrocki, Contracts in a Nutshell, West Group, St Paul, Minn., 2000, at 275 Under Alabama law, a person who is unmarried and has not reached the age of 19 years is deemed to be a minor

formalities have been observed US law also provides for exceptions when a contract does not comply with the written form but still has legal effect

Article 401 of the 2005 Civil Code of Vietnam stipulates that a contract can

be entered into in writing, orally or in conduct, if the law does not require a certain form Where the law stipulates that a contract must be notarized, authenticated, registered or licensed, it is mandatory to comply with this requirement Thus, basically, both the US and Vietnamese laws allow entering into a contract of any kind, if there is no statutory requirement on the written form

The difference is that:

First, the United States generalizes the cases where it is mandatory to make a contract, while Vietnam only generally stipulates that the law will stipulate the type

of contract that must be entered into by form certain consciousness

Second, if in the United States, the types of contracts that are required to be signed in writing are specifically listed in a state law to combat fraudulent acts, then in Vietnam, the written form of Contracts are regulated by specialized legal documents in each specific field Therefore, in Vietnam, it is difficult to determine

in general what types of contracts must be signed in writing, for each type of contract, it is necessary to find provisions in specialized legal documents

Third, in the United States, a violation of the form makes the contract unenforceable, that is, the court will not intervene to enforce the contract; In Vietnam, violation of form can lead to the effect of making the contract void if so provided for by law The practice of resolving contract disputes in the past has shown that the courts have declared many contracts invalid due to violations of form (for example, house sale and purchase contracts are not validly notarized or authenticated)

b Conditions of validity

Under USA case law, a contract is valid when the following conditions are met:

 There is an agreement and unification of the will of the parties voluntarily

 The parties have the capacity to sign the contract; 4

 Have reciprocal obligations, except for some exceptional cases

 The purpose of the contract must be lawful or not contrary to public policy; The form of the contract must be in accordance with the provisions of law

In Vietnam, the valid conditions of civil transactions in general and contracts

in particular are specified in Article 122 of the Civil Code, according to which, a transaction becomes effective when

 The participants in the transaction have civil act capacity

 The purpose and content of the transaction do not violate the prohibition of the law, do not violate social ethics; participants are completely voluntary

 If the law stipulates that the form of a contract is a condition for the contract

to be valid, this provision must also be complied with

Thus, basically, except for the condition of reciprocal obligations, the effective contract conditions of the US and Vietnam are quite similar

Regarding non-enforceable contracts, US law divides them into 3 types: void, voidable and unenforceable contracts

4 US case law stipulates competent people signing the contract is a person of full age (18), have the freedom to choose (i.e not beforced or unduly influenced) and have a clear mind at the time of entering into the contract.

A voidable contract is a contract that is considered non-existent, not recognized by the court and not enforced (this type of contract is similar to an absolute void contract according to the concept of legal science in Vietnam)

A contract that can be voided is a contract in which one party has the option to terminate the contract, for example a contract signed in a wrong way (this type of contract is the same as an absolutely void contract in Vietnam)

An unenforceable contract is a contract in which neither party can enforce its contractual obligations, for example in the United States, some types of contracts are required to be signed in writing, if the parties do not comply with the provisions The contract is deemed unenforceable

The 2005 Civil Code of Vietnam also introduced for the first time the basis of

an invalid contract due to an object that could not be performed (Article 411) However, with the way provided in Article 411, "In the event that right from the moment of signing, the object of the contract cannot be performed due to objective reasons, this contract is void", this phrasing may create misunderstanding, is that in all cases, when there is an objective reason that makes the object of the contract impossible to perform, the contract will be considered void

For example: A signed a contract to buy B's goods, but unfortunately, this goods caught fire and was completely destroyed Obviously the subject matter of this contract is unenforceable, but it cannot be said that the contract is void The contract is still valid, the seller violates the contract (cannot deliver the goods to the buyer) but due to force majeure, he is exempt from contract liability

c Procedure of entering into a contract

Like Vietnam, the procedure for entering into a contract in the United States consists of two steps: proposing and accepting the offer to enter into a contract

Firstly, difference is in the way they determine when to enter into a contract.

In Vietnam, consider the contract to be formed at the time the offeror receives the offer to enter into the contract The United States follows the mail box theory, which considers the time of entering into a contract to be the time when the party accepting the offer enters into a contract and accepts the offer

For example, on November 1, 2022, A submitted an offer to sell a shipment to

B On 7/11/2022 B sent a letter agreeing to buy the shipment by post 10/11/2022 A received the letter of acceptance Under US law, the contract ends on 7/11 but according to Vietnamese law, it's 11/10 Due to the different conceptions of the time of contract formation, in international business practice between the two countries, if the parties do not have an agreement on the applicable law, it is difficult to determine where the contract was entered into Thereby determining which country's jurisdiction has jurisdiction to settle contract disputes

Secondly, the laws of the United States and Vietnam both have provisions on

amending or withdrawing an offer to enter into a contract The difference is that: in Vietnam's civil code stipulates that an offer to enter into a contract may be changed

or withdrawn if the notice of change or withdrawal comes at the same time or before the time of receipt of the request This provision applies to all offers to enter into a contract, regardless of the time-limited or no-time-limited offer Meanwhile,

in the United States, the offer to enter into a contract can be modified or withdrawn

at any time before being accepted by the other party

Thirdly, the issue of the invalidity of the offer to enter into a contract.

Vietnam law restricts the right to freely withdraw or cancel an offer before it is accepted of the requester Meanwhile, the issue of validity of an offer to enter into

a contract under US law concerns the right to freely withdraw or cancel an offer before it is accepted Other cases leading to invalidation of the offer under US law such as the main object related to the offer to enter into a contract is no longer

available, the content of the offer is illegal, the offeror is dead or incapacitated before the offer is accepted except in the case of an option contract

Fourthly, the law of Vietnam and the law of the United States basically have

something in common about the requirement to accept the offer to enter into a contract, which is to accept the entire content of the offer and the notification of acceptance answer sent on time but comes from different conditions in each country that have different specific regulations US law has a concept of "counter offer," meaning that it is not considered an acceptance of an offer to enter into a contract but a way of canceling the offer There is no exception under US law for late notice to be considered acceptance of an offer to enter into a contract as required by Vietnam law

The last, withdraw the notice of acceptance of the offer to enter into a

contract The law of Vietnam allows the offeree the right to withdraw the notice of acceptance to enter into the contract before it takes effect, and the law of the United States has never raised the issue of withdrawing the notice of acceptance of the contract coin once it has been sent

d Liability for breach of contract

Vietnamese law prescribes the following sanctions for breach of contract:

1 Forcing the correct performance of the contract.

Pursuant to Clause 1, Article 297 of the 2005 Commercial Law, which stipulates that the contract must be performed correctly:

The fact that the aggrieved party requires the breaching party to properly perform the contract or use other measures to make the contract perform, and the aggrieved party must bear the costs incurred

According to this provision, the violating party will have to strictly comply with the terms committed in the contract; use other means to remedy and perform the contract

The cost of these remedies shall be borne by the offending party

2 Contract penalties

Article 300 of the Commercial Law 2005 provides:

Contract penalties means that the aggrieved party requests the violating party

to pay a fine for breach of contract if so agreed in the contract, except for the cases

of liability exemption specified in Article 294 of this Law

Based on the above provisions, the penalty for breach of contract is only applied when there is an agreement in the contract This means that only when there is an agreement on penalty for breach of contract, the aggrieved party can apply the penalty for breach of this contract And the application of this remedy is not based on whether or not the aggrieved party has suffered damage

3 Forcible compensation for damage.

Compensation for damages is a commonly used remedy for breach of contract

According to Clause 1, Article 302 of the Commercial Law:

Indemnification means the breaching party's compensation for the loss caused

by the breach of contract to the aggrieved party

4 Suspension of contract performance.

Suspension of contract performance is the temporary failure of one party to perform its obligations in the contract When a commercial contract is suspended, the contract is still valid