PART I. LECTURER INFORMATION, COURSE DESCRIPTIONA few critical questions should further be offered for the class to ... 2 2 4 8 Unit 2. Conditions, Representations, Warranties and

PART I. LECTURER INFORMATION, COURSE DESCRIPTION

AND TEACHING METHODS

General information • Full course title: Making Contracts in International Transactions

• Type of course: Elective

• Level of course LLM.

• Year of study: 2nd

• Number of ECTS credits allocated: 1

• Name of lecturer(s) and office hours:

Julia A. Karaulova, PhD (Law)

Lecturer, English Language Department #6

1.1 Course aims and learning outcomes

The course is practice-oriented and focuses on contracts as means by which

transactions are made. The principal objective of the course is to provide students with

knowledge in common contract law basics and contract drafting techniques with special

emphasis given on three specific contracts required for such transactions, i.e. sale and

purchase contracts for purchasing goods, loan (credit) contracts for borrowing money,

and pledge (mortgage) contracts for securing the repayment of debts.

Learning outcomes:

Upon termination of the course students are supposed to:

• know, construe and apply the basics of common contract law to international

transactions;

• know the structure of a typical sale and purchase/loan/pledge contract;

• negotiate and draft the contracts in question in English;

• apply appropriate contractual provisions to the required stage of a transaction;

• take a flexible approach to various models and stages of transactions and handle

them properly.

1.2 Course requirements and grading plan

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Course requirements

Students are supposed to attend not less than 90% of classes and be prepared for class

discussions. Conscientious reading of the assigned materials is compulsory. Students

will also be required to submit assignments, given to them at classes or as their

homework, within deadlines defined be the lecturer.

Grading plan

• Class participation – 75 %

Students are expected to attend all the lectures, seminars and participate in class

discussions; since the course is highly interactive, it is essential that students

attend the seminars having read the materials for that day’s class.]

• In-class issue presentation – 10 %

Such a presentation (up to 15 minutes) is performed by each student at least once

in the term. The presentation will be based on the week’s additional readings. The

presenter should supply a brief summary of the argument but offer a critical

interpretation of the reading by drawing out the key ideas of the text, linking them

with others already covered, and registering agreements and disagreements. The

presentation should represent an independent research conducted by the student.

The materials of the lectures given within the course should not exceed 20%. The

presenter should also attempt to consider how the given argument could be framed

differently. A few critical questions should further be offered for the class to

discuss collectively.

• Drafting a contract as collective project – 5%;

• Final assessment questions – 10% (two questions totally)

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PART 2. COURSE CONTENTS

2.1. COURSE CONTENTS AND READINGS BY TOPIC

Scope of the Discipline and Academic Activities:

Activities Scope of Work Academic Hours ECTS

Scope of Work /Total 36 1 Class activities 18

Lectures 8 Practice/seminars 10 Out-of-class activities/ Total 18 Including Self-preparation

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Types of Current Control (report, paper, test) 4

Final Assessment 2

Discipline Contents: Units and Topics Scope in Hours or/and ECTS

Lectures Seminars/practice Self-

preparation Total

Unit 1. Concept of a Contract. Core and

Boilerplate Clauses 2 2 4 8

Unit 2. Conditions, Representations, Warranties and Covenants in English Contracts

2 2 4 8

Unit 3. Indemnity in English law. The application of the concept in international transactions

2 4 6 12

Unit 4. Basics of Contract Formation in Common (English) law

2 2 4 8

TOTAL: 8 10 18 36

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TOPIC 1. Concept of a Contract. Core and Boilerplate Clauses.

Summary: The Body of a Contract: introductory part, operative part, formal conclusion

(signature page). Appendices/Annexes/Exhibits or Schedules – specific meanings and

application models. Definition and Types of Boilerplate Clauses in Common Law

Contracts. Terms, Conditions, and Warranties: different nature and scope of

application.

Seminar Issues

1. The Scope of a Contract Body.

2. The Description and Objectives of Boilerplate Clauses.

3. The Types of Boilerplate Clauses.

4. Standard Provisions and Wordings in Common Boilerplate Clauses.

Essential Readings:

Marshall K, Daniel J. Principles Of Contract Law [e-book]. Lake Mary, FL: Vandeplas

Publishing; 2012. Available from: eBook Academic Collection (EBSCOhost)

Haapio H, Siedel G. A Short Guide To Contract Risk [e-book]. Burlington, VT: Gower;

2013. Available from: eBook Academic Collection (EBSCOhost)

Further Readings:

Arlen Duke, Andrew Robertson, Jeannie Paterson. Principles of Contract Law, 2011;

Adrian Chandler and Ian Brown. Law of Contract, 2008;

Robert A. Hillman. Principles of Contract Law, 2007;

Russian Civil Code Annotated. Translation and Commentary by Osakwe. Moscow

University Press 2000; Publishers NORMA 2000;

Караулова Ю.А., Селезнева В.В. Английский язык: договорное право = Primer on

contract law : учебник для вузов : уровни В2-С1 - М. : МГИМО-Университет, 2010.

Internet-resources

• 1) http://www.duhaime.org/LegalResources/Contracts;

• 2) http://www.ecch.cranfield.ac.uk

• 3)http://www.jpf.org.uk/language/download/Installing_Author_Plus_Pro.pdf

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• 4) http://www.clarity.ac.uk

• 5) http://www.ease.ac.uk

• 6)http://hbswk.hbs.edu/archive/4428.html

• 7) http://www.5ka.ru/104/1510/1.html

• 8) http://www.adbokat.ru/barrister.html

• 9) http://www.csoonline.com/fundamentals/abc_ip.html

• 10) http://www.slovari.info/lawyer/2060.html

• 11) http://www.companieshouse.gov.uk/about/gbhtml/gbf1.shtml

TOPIC 2. Conditions, Representations, Warranties and Covenants in English

Contracts

Summary: General description of contractual conditions available in English law.

Nature of representations and warranties: their distinctions and similarities. Types of

conditions. Concept of covenants. Examples of covenants in facility agreements.

Lecture Outline

1) Conditions vs warranties;

2) Precedent, concurrent and subsequent conditions; examples to them;

3) Express and implied conditions in English contracts;

4) Reps and warranties; nature, scope of coverage, legal effect, remedies for

breach;

5) Positive and negative covenants; their variety in loan agreements

Seminar Issues

1. Analysis of conditions in a sale and purchase agreement;

2. Conditions precedent: language and key provisions;

3. Specific wording and effect of conditions subsequent: examples; release from liability

4. Discharge of a contract: termination, cancellation, repudiation, rescission.

Essential Readings:

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Further Readings:








Internet-resources












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TOPIC 3. Indemnity in English law. The application of the concept in international

transactions involving Russian contractors

Summary: The concept of indemnity. Two-fold nature of the indemnity. Reception of

indemnity in Russian law: recent developments. Specific features of indemnity in

Russian law.

Lecture Outline

1) Definition of indemnity in English law: specific features and two-fold nature;

2) Indemnity as a contract: scope and examples;

3) Types of indemnity clauses;

4) Contents of the indemnity clause;

5) Express and implied indemnities;

6) Specific interpretation of the language “to hold harmless”;

7) Types of international transactions involving indemnity;

8) Indemnity as novelty to Russian law: overview of recent amendments to the

Russian Civil Code (article 406 of the RCC);

9) English indemnity vs Russian indemnity;

Seminar Issues

1. Indemnity vs Guarantee;

2. Indemnity vs Damages;

3. Indemnity vs Warranties;

4. Drafting indemnity clauses.

Essential Readings:





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Further Readings:








Internet-resources












TOPIC 4. Basics of Contract Formation in Common (English) law

Summary: Requisites for contract formation; key cases related thereto;

Lecture Outline

1) Key requisites for contract formation; 2) Meeting of the minds; its Roman analogue (consensus ad idem); 3) Concept of consideration; basic rules and cases; 4) Other factors having impact on contract formation; 5) Promissory estoppel in English and US law

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Seminar Issues

1. Drafting a sale and purchase agreement subject to term sheets provided by the lecturer

(collective project);

2. Drafting a loan (facility) agreement subject to term sheets provided by the lecturer

(collective project).

3. Drafting boilerplate clauses

Essential Readings:





Further Readings:








Internet-resources











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2.2. FINAL ASSESSMENT QUESTIONS

1) The Body of a Contract: introductory part, operative part, formal conclusion

(signature page).

2) Appendices/Annexes/Exhibits or Schedules – different meanings and application

models.

3) Definition and Types of Boilerplate Clauses in Common Law Contracts.

4) Terms, Conditions, and Warranties: different nature and scope of application;

5) Representations and warranties: similarities and distinctions;

6) Types of conditions; relative examples from sale and purchase agreements;

7) Implied conditions; their legal regulation;

8) Covenants in a facility agreement; nature, scope and examples;

9) Discharge of a contract: termination, cancellation, repudiation, rescission;

10) Definition of indemnity in English law: specific features and two-fold nature;

11) Indemnity as a contract: scope and examples;

12) Types of indemnity clauses;

13) Contents of the indemnity clause;

14) Express and implied indemnities;

15) Specific interpretation of the language “to hold harmless”;

16) Types of international transactions involving indemnity;

17) Indemnity as novelty to Russian law: overview of recent amendments to the Russian

Civil Code (article 406 of the RCC);

18) English indemnity vs Russian indemnity;

19)Key requisites for contract formation;

20) Meeting of the minds; its Roman analogue (consensus ad idem);

21) Concept of consideration; basic rules and cases;

22) Other factors having impact on contract formation;

23) Promissory estoppel in English and US law .

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2.3. FINAL ASSESSMENT TIMING

• Final assessment – last week of December (autumn semester);

2.4. SAMPLE TESTS AND PAPERS

Version 1

1) Sale and Purchase Agreement

Build the clause “Sale and Purchase” in which you are expected to specify, firstly, the

actions to be taken by the contractors under the contract; secondly, describe the

warranties made by the Seller with respect to the Sale Shares; thirdly, include the

provision releasing the Purchaser from any obligation to complete the purchase of the

shares until the Seller procures that all shares may be purchased simultaneously at

Completion; and, finally, the Seller’s waiver of, any restrictions on transfer (including

pre-emption rights) which may exist in relation to the Shares under the existing founding

documents of the Seller

2) Boilerplate Clauses. Draft the clause “No Third Parties Rights”

Version 2

1. Loan Agreement

Prepare clause “Repayment” and indicate the provisions describing the predetermined

number and periods of installments for each tranche, their equal nature, the subsequent

dates on which such installments should be paid; the clause can also specify that the

dates for payment of principal of the Loan are intended to coincide with Interest

Payment Dates. The provision that amounts of the Loan that are repaid may not be re-

borrowed should also be included.

2. Boilerplate Clauses. Draft clause “Arbitration”

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Version 3.

LOAN AGREEMENT PAPER

PART I. IDENTIFICATION

(1) Identify the terms according to the meanings ascribed to them by the definitions

below:

________________means, with respect to any amount overdue under this Agreement, a

period commencing on the day on which such payment

becomes due or, as the case may be, on the last day of the

previous such Period with respect to such overdue amount, and

ending on a Business Day selected by the Lender;

_________________means the consolidated and unconsolidated statements (including a

balance sheet, income statement, statement of changes in equity, cash flow statement

and notes comprising a summary of significant accounting policies and other

explanatory notes) of the Borrower and its Subsidiaries prepared in accordance with

IFRS;

(2) Define a loan agreement article and section to which each fragment given below

relates:

The Borrower is not in default under any material agreement, obligation or duty to

which it is a party or by which it or any of its properties or assets is bound and there

exists no Default. (Article: _______________/Section: _________________);

The Borrower acknowledges that it has made the representations and warranties

contained in Section 2.01 with the intention of inducing EBRD to enter into this

Agreement and that EBRD has entered into this Agreement on the basis of, and in full

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reliance on, each of such representations and warranties (Article:

____________________/Section: _______________);

Subject to Article III and Article IV, the Loan shall be disbursed by the Lender from

time to time on any Business Day during the Commitment Period in one or more

Disbursements upon request of the Borrower (Article: _______________/Section:

________________);

PART II. DRAFTING CLAUSES

Draft the clauses of a loan agreement on the basis of the instructions specified infra:

(a) “Amount and Currency” Clause (Article “Loan”)

While drafting the clause at issue, specify the amount of the loan not to exceed a fixed

sum; the currency of the loan; the several tranches in which the loan shall be disbursed;

disbursement number, procedure and time periods:

(b) “First Disbursement” Clause (Article “Conditions Precedent”)

In building the clause, firstly, comply with the form required for the introductory

provision stating that “the Lender’s obligation to make the first Disbursement is subject

to the condition precedent”; secondly, identify properly all necessary actions that must

have been taken and all filings that must have been made by the Borrower in order to

receive Tranche A.

PART 3. FINAL REMARKS

• Plagiarism is considered as a severe violation and as an indication of

incompetence in the course. Plagiarism is understood as making of one’s text

using compilation method for other people’s publications, even connected with

own phrases and sentences. Collective performance of individual tasks is also

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unacceptable. Proved plagiarism an F-mark is given regardless of the fulfillment

of all other requirements.

PART III. TESTING THE KNOWLEDGE

Version 1:

Dai texts Pip offering to sell his car to her for £2,000. Pip replies offering to buy the car

for £1,500. Dai texts back 'no way'. Pip replies by text stating she will accept the car for

£2,000. Which of the following statements is correct?

a) An offer has been made by Dai and acceptance by Pip.

b) An offer has been made by Pip and acceptance by Dai.

c) Dai first statement is an invitation to treat.

d) Pip's second statement is an offer to buy the car for £2,000.

Version 2:

The following statements relate to the postal rules, which one is incorrect?

a) The postal rules can never be excluded from a contract.

b) The postal rules can be excluded from a contract.

c) Under the postal rules a letter of acceptance properly addressed and stamped is

effective from the moment of posting even though it never arrives.

d) The postal rules only apply to acceptance of an offer.

Version 3:

Scenario

If a farmer agrees, in writing, to pay his wife $100 a month to keep farm accounts and

perform farm chores as “you have always done”, is this an enforceable contract?

Documents

PART I. LECTURER INFORMATION, COURSE DESCRIPTIONA few critical questions should further be offered for the class to ... 2 2 4 8 Unit 2. Conditions, Representations, Warranties and