CHAPTER 1: STATE AND LAW

I. Definition of law
Discussion
1. The guest is not legally entitled to a refund because he has already eaten the meal
and if he/she is not unpleasant with the service, he/she shall report to the manager
immediately. But to avoid the case being rumored in social media, the manager can
resolve the dispute by offering him some vouchers or coupons.
2. It depends on whether that is mentioned in the employment contract or not.
3. She can legally accept the gift without threatening her employment status but it
also depends as for international companies, there are rules that higher positions
could not receive gifts from lower positions.
4. It depends on the franchise agreement, but if the franchisor doesn't allow for any
changes, the franchise restaurant owner should change the policy.
Definition (Not all rules are law but all law are rules)
Law is a body of rules, created by the State(Nhà nước), binding within its
jurisdiction(thẩm quyền) and enforced(thi hành) with the authority of the state through
the use of sanctions(chế tài).
*The authority of state could be judicial bodies: cơ quan tư pháp, local committees, Cục
quản lý, kiểm soát thị trường, police,...
II. Sources of law

Legislation: văn bản luật Delegated legislation: văn bản dưới luật

Constitution: Hiến pháp Ordinance: Pháp lệnh

Acts: Đạo luật Decree: Nghị định
Codes: Bộ luật Circular: Thông tư
→ Constitution has the highest Decision: Quyết định
validity because: SOURCES OF LAW
- It is the “supreme law”: the
foundation for other laws and all ⇒ Directive and offer are not
laws must abide by the constitution legal documents
- It provides laws on all aspects, deals
with the relationships between the
state agencies, humans’ basic
rights,etc…
→ Acts and codes have the same
validity but differ in the
governing scope:
- Acts = laws: they have smaller
scope and deal with specific aspects
 - Codes contain laws and they have
wider scopes, dealing with many
aspects

* 4 cơ quan ngang bộ:

State Bank of VN: Ngân hàng Nhà nước Việt Nam -> Thống đốc (governor) Ngân hàng
Nhà nước có thể ban hành Thông tư
Government Office: Văn phòng chính phủ
Ethnic Committee: Ủy ban dân tộc
Government Inquisitor: Thanh tra chính phủ

III. Categories of law

● Criminal law and civil law

Differences Criminal law Civil law

PURPOSE Punish the perpetrator of a Seek remedy for a private wrong

crime (mistakes that belong to private
Deter others from people or closed/personal
committing crime relationships)

PARTIES Public prosecutor (công tố Plaintiff (nguyên đơn) sues

viên) defendant ( bị đơn)
Investigator (điều tra viên)
The accused/defendant (bị
can/bị cáo)

DISCRETION TO Decided by the state Decided by the plaintiff

INITIATE AN
ACTION

DECISION OF Guilty / Not guilty Liable / Not liable

COURT

BURDEN OF Prosecutor has to prove Plaintiff has to prove the case with
PROOF beyond reasonable doubt balance of probabilities, even if the
(there's enough rate is 51%
concrete proof for the
accused to be judged
guilty → need stronger
power because the
evidence and court's
decisions affect
people's lives a lot)
>> 50%
 SANCTIONS Jail sentence, fine,... Damage, specific performance(buộc
*Community sentence: cải thực hiện nghĩa vụ), injunctions(lệnh
tạo không giam giữ cấm hoặc bắt buộc thực hiện),...

Discussion
5/.While driving the car beyond the speed limits; A crushed into B and made him injured
→ Based on the injury levels of the patient. According to Art.260.1b
penal code 2015, if a patient's health is affected from 61% to above,
then the criminal sanction is applicable (jail from 1-5 years)

8/.A customer got poisoned after having lunch in a restaurant

→ Art 317 penal code, if the patient's health is affected from 31% to
60%, then the criminal sanction is applicable(jail from 1-5 years)
*Arbitration(in commerce or marriage cases): claimant (who sues) and respondent (who
is sued)

● Private law and public law: are concerned with relationships

Private Law deals with the relationships between ordinary people in every transaction,
between businesses and companies.
- Civil Law: contract law, tort law (luật bồi thường thiệt hại), property law
- Family Law
- Company Law
Public Law deals with the relationships between government organizations and citizens
- Criminal law
- Administrative Law: Luật hành chính
- Constitutional Law: Luật Hiến pháp
● Substantive (Luật nội dung) and procedural law (Luật tố tụng)

Substantive Law Procedural Law

Define rights and obligations → Establish procedures for resolving

they answer what should we do in a disputes → they answer the process
specific situation involved in suing someone
Ex: Civil Code, Penal Code, Law on Ex: Civil Procedure Code, Criminal
Commerce,etc. Procedure Code

● Common Law(Thông luật) and Civil Law (Dân luật): both describe legal systems
(the way law is structured and operated)

Common Law: Malay, Singapore, Canada, Civil Law: India, Germany, Vietnam
India
 -Legal system based on English legal -Originate from European Mainland,
system (America, Australia, British Empire) especially France - Germany, based on old
(except Louisiana) Roman Law
-Unique feature: judge-made law = case -The court implements and uses the laws.
law(án lệ) ⇒ the laws are made by Civil Law is a codified set of rules, binding
for all.
the judges, judgements solve
-Writings of the legal scholars have
disputes of some parties and are
substantial influence on the courts
based on precedents(tiền lệ) to solve
similar future disputes
-Case law: the rules of law announced in
the court decisions, it is part of the
decision and binding for everyone.
Consists of statutes(quy chế), regulations,
provisions(điều khoản).

*THE DOCTRINE OF STARE DECISIS

(Học thuyết về sự quyết đoán của Stare →
stand for decided cases = be bound by
case laws)
-Not overturn(be against) the precedents
unless there is a compulsory reason
-Higher courts’ decisions are binding on
lower courts

● Court in VN (from little to big): District People's Court → Province/City

People's Court → High People's Court → Supreme People's Court
● VN recognizes the precedents made by Judicial Council of Supreme People's Court ( Hội
đồng Tư pháp ND tối cao) and the Chief Justice of Supreme People's Court publishes them
to help the courts study and adopt them when deciding later cases
● Pros & Cons of precedents

PROS CONS

1.Consistency (tính nhất quán) & 1.Complex system → confusion

Predictability 2.Rigidity
2.Time-saving
3.Equality & Justice
4.Flexibility
● Legal norm: a mandatory rule of social behaviors established by the state: A law includes
lots of legal norms

Hypothesis (giả định) Who? What situation?

 Disposition (quyết định) Should/Should not do anything? How to do it?

Sanction (chế tài) Punishments

● Why state is born: Due to the appearance of social class, the possession of
private and extra property → arise the conflicts. So the state is a
special political organization and there are 3 general reasons: protecting the rights and
interests of the ruling class; maintaining the stability of the society; having enforcement
power
*Separation of powers: quyền lực phân lập → Tam quyền phân lập

Legislative power: lập pháp Executive power: Hành pháp Judicial power: Tư pháp

Power to make the law VN: The Government. Power Power to interpret the law
to administer the law

● Form of State: thể chế nhà nước (học qua presentation)

CHAPTER II: BUSINESS CONTRACT

I. Fundamentals of a contract
1. Definition: A contract is a promise or a set of promises for the breach of which the
law gives a remedy or the performance of which the law in some way recognizes as a
duty (The US Restatement 2nd of Contracts, Section 1) → a contract is an agreement
that can be enforced in court
A contract means an agreement between parties in relation to the establishment,
modification and termination of civil rights and obligations (Art 385 Civil Code).
Example: Sales contract, tenancy contract,etc.
2. Essence of a contract: is the key condition on which a contract is based. The validity
of contract is based on Art 3.2 and 401.2
-Art 3.2. “....any commitment or agreement which does not violate a prohibition by
law or is not contrary to social morals is binding for performance by the parties
and must be respected by parties”
-Art 401.2 “....From the time when a contract takes effect, the parties must exercise
the rights and perform the obligations to each other as undertaken. The contract
may only be amended or canceled as agreed by the parties or as provided by the
law”
⇒ When brought to court, contract = law
3. Classification of contracts
●Unilateral (đơn vụ) and bilateral (song vụ)
 Unilateral: only 1 party has the obligation. Ex: Life insurance contract → only
the insurance company has to pay a death benefit in exchange for the
policy owner; property awarding contract (tặng tài sản như real estate)
Bilateral: each party has obligation to the other
●Principal and ancillary contract
Principal: the effectiveness doesn't depend another contract
Ancillary: the effectiveness depends on the principal contract
Example: Loan Agreement - Mortgage agreement (HĐ thế chấp)
●Contract for the benefit of the 3rd person: contracting parties must perform
obligations for the benefit of the 3rd person and the 3rd person enjoys benefits
from such performance. That 3rd person is called “beneficiary”. Ex: Parents
buy life insurance for their children → their children are
beneficiaries.
●Conditional contract: a contract whose performance depends on the occurrence,
modification or termination of a specified event. Ex: A will buy B's horse if it wins
in the race.
II. Commercial contract
* Commercial acts are for the profits, including sales of goods, service provision, trade
promotion and other profitable acts
1. Parties (Art 2 - Commercial Law)
a. Traders conducting commercial activities as provided in Art 1 of the Law
b. Other orgs/individuals conducting commerce-related acts
c. The Gov shall specify the application of this Law to individuals who
independently and regularly conduct commercial acts without having to
make business registration. Ex: street vendors, sell small
things/foods/drinks with/without specific location
⇒ When opening a coffee shop, need business registration because
this is a service provision
So, who are traders? (Art 6.1 Commercial Law): Traders include lawfully
established economic organizations/individuals that conduct commercial
activities in an independent and regular manner and have business registration.
2. Objects (Art 3.2 - Commercial Law): Goods include
a. All types of movables (động sản), including those formed in the future (fruits
that are not ripe yet)
b. Things attached to land (house, construction, related property)
*Land is not a commodity because it's the property of people and controlled by the
State
3. Form (Art 24 & 74 - Commercial Law)
 a. Contracts for sale and purchase of goods may be expressed in verbal or
written form or established by specific acts (ex: paying at the cash counter
at supermarket without having to inform).
⇒ Agreements/contracts that are compulsory in written form: Contracts for
International sales of goods (Import/Export)
b. For types of contracts for purchase and sale of goods as provided by the Law,
must be made in writing, such provision must be complied with
*Art 3. Interpretation of terms: 15. Forms of validity to documents include
telegraph, telex, facsimile, data, message and other forms
*Art 3.5. Data message means information created, sent, received and stored in
electronic media
⇒ Contracts can be formed through data message like Zalo but there
are a lot of risks, especially security
4. Governing Law (Art 4 - Commercial Law)
a. Commercial activities must comply with the Commercial law and relevant
laws
b. Particular commercial activities provided for in other laws shall comply with
the provisions of such law
c. Commercial activities which are not provided for in the Commercial Law
and other laws shall comply with the provisions of the Civil Code

Order of application: Specialized Law (Law on Investment, Law on

Security, Law on Tourism, Law on Enterprises...) → Commercial Law
→ Civil Code
5. Discussion
The Commercial Law also regulates the acts of goods exchange and
sales of goods, deals with relations between members of the
company, their rights and obligations ⇒ The commercial law is
applicable.

1.False → verbal, written form and specific acts

2.Franchise contract must be made in writing
3.False → specialized law, commercial law, civil code
4.False. There needs to be a foreign element involved in the contract
CASE STUDY: 2 VNese companies have legal representatives who are Chinese so
the applicable law for the contract shall be VNese law
Foreign element: Art 663.2
- At least 1 party is a foreign natural person/juridical person
- The parties are VNese but the establishment, modification and termination
or the subject matter (property,etc) are in foreign nation
Art 664. Order of application: A country's law (As agreed) →
International commercial law
III. OFFER AND ACCEPTANCE
1. Criteria for an offer

VN(art 386.1) CISG(art 14)

Offer to enter into a contract means a A proposal for concluding a contract

clear expression by the offeror of its addressed to 1 or more specific
intention into a contract and to be persons constitutes an offer if it is
bound by such offer made to another sufficiently definite and indicates the
determined party or to the public intention to be bound in case of
(offeree) acceptance.
A proposal is sufficiently definite if it
indicates the goods and
expressly/implicitly fixes or makes
provisions for determining the quantity
and price
REMARKS:
Inquiries, catalogs, brochures and advertisements are not offers but an invitation
to treat (negotiate with the seller)
2. Withdrawal and Revocation: Withdrawal is easier than Revocation because if
the offer is irrevocable, it can be withdrawn with some damage.
*Withdrawal

VN (art 389) CISG (art 15.2)

(a) Offeree reaches notice of (2)An offer even if it is irrevocable may

modification or withdrawal of the offer be withdrawn if the withdrawal reaches
prior to/at the same time as the receipt the offeree before/at the same time as
of offer the receipt of offer
(b) The offeror clearly specified the
circumstance in which the offer could
be modified/withdrawn and such cases
have arised in fact
⇒ In VN, the withdrawal is stricter

*Revocation

VN(art 390) CISG(art 16)

An offeror may revoke the contract if (1)Revoke if the revocation reaches the
 such right was specified in the offer offeree before he/she dispatched an
and the offeree receives the notice of acceptance
the revocation before the offeree (2)Cannot revoke if:
providing a notice of acceptance of - It indicates that it is irrevocable
offer - If it is reasonable for the offeree
to rely on the offer as being
irrevocable (through specific acts
established as custom/oral
form,etc)
⇒ The CISG is more flexible in terms of revocation
3. Acceptance
1. The offeree shall accept the entire content of the offer

VN CISG

Art 392: When an offeree accepts the Art 19

offer to enter into a contract but (1)A reply to an offer which purports to
specifies conditions or amendments to be an acceptance but contains
the offer, the offeree shall be deemed to “changes”--> a counter-offer
have made a new offer (2)If the acceptance contains additional
Art 393: Acceptance means a reply terms which do not materially change
by the offeree accepting the the terms is still an acceptance
entire contents of the offer → (3)Additional terms, among other
mirror image rule (accept 100%) things, are related to price, payment,
quality and quantity, place and time of
delivery, extent of 1 party's liability to
other/settlement of dispute

2. The acceptance must be received within the time limitation set forth in the
offer (VN art 394 & CISG art 18,21)
Forms of acceptance: written, oral, specific acts
IS SILENCE ACCEPTANCE?
+ VN (art 393.2 civil code): Silence of the offeree shall not be deemed to be an
acceptance of the offer to enter into the contract unless otherwise agreed or
complied with the custom
+ CISG (art 18.1): Silence or inactivity does not in itself amount to acceptance
→ Chọn C.
B is in breach because B regularly met A's orders without
expressly confirming its acceptance → establish silence as a
custom
3. The acceptance shall not be withdrawn
+ VN: art 397: The offeree may withdraw notice of acceptance to enter into a
contract if such notice arrives prior to or at the same time as the offeror
receives the reply accepting the offer to enter into a contract
+ CISG (ART 22): similar content as above

FTU2 is not a legal entity because it doesn't meet the 3rth and
4th (when being sued, the defendant would be the name of the whole
company) condition of Art.74 ⇒ only part of the whole company
The property of the company is different from that of members → if
the company cannot pay debt, it's the company's obligation only,
not related to members ⇒ if unable more, go for bankruptcy

Polish seller & Vietnamese buyer → foreign element → CISG (Poland

and Vietnam are contracting members of CISG) but in both VN and
CISG, X specifies additional condition = a new/counter-offer → the
original contract is rejected and Y has the right to reject the
new offer from X or sign contract with another buyer
 The hotel has legal right to withdraw its offer of employment
because Jasmine Ha accepts with material change (salary) → make a
new offer → company has the right to reject
IV. BUSINESS CONTRACT
1. Validity of a contract - requirements
a. Parties to the contract
- The parties have civil legal capacity (năng lực pháp luật dân sự) and
capacity for civil acts appropriate to the established civil transaction
- Legal capacity: Individuals (art 16-18 civil code)
The civil legal capacity of an individual means the capability of the individual
to have civil rights + obligations
All individuals have equal legal civil capacity
Commencement: birth, termination: death
The civil legal capacity of an individual may not be restricted, except where
otherwise provided by this Code or other relevant laws
*Age of majority (tuổi thành niên: from 18) & minors (vị thành niên)
Age of majority: People with full civil capacity
+ Age (điều kiện cần)
 + Health condition (điều kiện đủ)
People with limited CC(minors): their civil transactions depend on the legal
representative (Art 21 Civil code)
21.2 Age under 6: Civil transactions shall be established and performed by
his/her legal representative
21.3 Age from 6-15: must have the consent (cho phép) of legal representative
to perform civil transactions, except meeting the needs of daily life suitable
for the age group. Ex: if sell a bike to buy video games ⇒ invalid
because not appropriate to age
21.4 Age from 15 - <18: be entitled to perform civil transactions except for
buying real estate, movables that need registration or civil transactions that
need consent from legal representative

*Lack of CC (mất năng lực) (Art 22): those with mental problems
*Limited cognition or behavioral control(Art 23.1): based on the opinion of
forensic-psychiatric examination by any authorized organization. Example: elderly
people who have memory problems (must be checked by competent medical offices)
*Restricted capacity(Art 24.1): drug addict (problem: sell property in the family to
trade for drug)
NOTICE:Only with court's decision to declare if someone loses legal capacity

- Legal capacity: legal entities (art 86 Civil Code) - Pháp nhân

Commencement: establishment, termination = termination of organization

WHAT ARE JURIDICAL PERSONS? (ART 74 CIVIL CODE) - an organization that

meets 4 conditions
a) It is legally established as prescribed in this Code and relevant laws;
b) It has an organizational structure prescribed in Article 83 of this Code;
83.1. Each juridical person must have an executive body(cơ quan hành chính).
The organization, duties and powers of the executive body of a juridical person
shall be stipulated in its charter or establishment decision.

JSC (công ty cổ phần) LLC (công ty trách nhiệm hữu hạn)

General meeting of shareholder Member's council (HĐ thành viên)

Board of management (Chairman) Chairman
Director/GD Director/General Director
Ngoài ra, Controlling board (Inspection,
Committee)

c) It has property independent (between investors, shareholders, members,...)

from other natural and juridical persons and bears liability by recourse to its
property; When we contribute the asset to the company → the asset
belongs to the company → the company is liable for that, receive
profit from that; if contribute the debt cert to the company → the
company has to pay for the risks
d) It participates independently in legal relations in its own name.
*THE DIFFERENCE BETWEEN BRAND AND REPRESENTATIVE OFFICE
● Branch can do partly/entire function of the company → conduct
commercial acts and gain profits
● The representative office cannot generate profit → cannot sign
commercial contract + conduct market survey + commercial promotion
activities (provide administration service) → facilitate the business
(limited functions - lower level than branch)
● Branch and representative office are not legal persons →
dependent units
● Sole proprietorship is not a legal entity → individual owner,
has every unlimited liability and responsibility, cannot
satisfy 3rd and 4th condition of art 74
● If the coffee shop is run by 1 person → not a legal person, with
family members → business household (hộ kinh doanh cá thể) → not
a legal entity because the property is not independent from members

- COMPETENCE TO ENTER INTO A CONTRACT

+ Legal representative: head of the business - Mr.A-
Director of the LLC → director, chairman of the member
council
For JSC → chairman of the board of management
For proprietorship
+ Authorized representative (power of attorney - authorization letter:
giấy uỷ quyền - must be included in the contract): shareholder (cổ
đông), member, company president or authorized by Member's
Council, Board of Directors, Owner,...
+ Scope of authorization: authorized representative has
narrower scope, deals with the specific field → must
base on the contract
+ Duration (Art 563 Civil code): based on negotiation between parties;
based on the law; if there is no rule/law regulating this, duration
would be 1 year
+ Sub-authorization → is only allowed
2. Voluntary consent: Absence of free will
 - Deception and Duress (Art 127 Civil Code): Invalidity of a civil transactions
due to deception, threat or compulsion (sự cưỡng ép)
Deception: intentional act, misleading the other party as to the subject,
nature of the entity or content of transactions. Example: lying about the origin
of goods, ingredients, recipes, quality.
Threat/compulsion: intentional act, compels the other party to conduct the
civil transaction to avoid danger to life, honor, reputation, dignity
or property → VD: if A kidnaps B's son and says that if B makes a contract
to give A 100 million as a gift, A will free B's son.
- Mistake (Art 126 Civil code): Invalidity of civil transactions due to
misunderstanding
1. If there is misunderstanding that makes parties fail to meet the
objectives of the establishment, the mistaken party has the right to
request to declare invalid
2. Case 1 shall not be invalid if parties may meet the objectives or
correct the misunderstanding immediately to achieve the objectives
⇒ EXAMPLE: if the contracting parties sign the contract in transferring the use of land
of 250 square meters but the seller hasn't legalized the ownership so he doesn't know that
part of the land is in the planning area so he still sells it with 250m2. So the buyer can
ask the court to declare invalid.
1.The contract is voidable and Walker can ask the court to declare
invalid, if Rose can give birth → the price will be changed
2.The contract should not be voidable because this is a commercial
activity and the price in the market can be changed ⇒ so this is a
special feature of commercial activity. So if the buyer signs the contract, he should
be aware of the risks that prices are changeable so he could not
declare invalid → just a prediction, not a mistake

DIFFERENCE BETWEEN VOID AND VOIDABLE CONTRACT

Void contract is invalid no matter what the parties do
Voidable contract is valid until the parties request the court to declare invalid

3. Purpose and content of the contract: Not contrary to the law or social morals
a. Purpose of the contract (Art 118): Objectives of civil transactions
Objectives of a civil transaction are legitimate interests which the parties
wish to achieve (lợi ích mà chủ thể mong muốn đạt được) at the time when
they enter into transaction
b. Content of the contract (Art 398):
- Subject matters of the contract: đối tượng hợp đồng
- Quantity/quality
- Price/payment
- Time limit, place, method of performing
- Rights and obligations
- Liability for breach
- Methods of settlement of disputes: phương thức giải quyết tranh
chấp
The contract that has compulsory terms of conditions: tenancy contract, employment
contract, tour contract, life insurance contract

DIFFERENCE BETWEEN NOTARIZE & CERTIFY

- Notarize checks the legality of document → notary (công chứng
viên)/notary public
- Certify if the copy is authentic, certify the signature →
notary / local people's committee
c. Legal prohibitions or contravention of social morals (Art 123): vi phạm đạo
đức
No trafficking in new-born babies; no contract for overtime working without
further income
The contract that is not illegal but contrary to the social morals: love (sex contract
between beauty queens and rich men)

4. Forms of the contract

Legal basis: Art 119 Civil Code, Art 24 + 74 Commercial Law →
verbal, written, specific acts

(1). True

(2). True

(3). False

Void contracts
a. When? Art 122:
 b. Classification: Art 129 - 130

(?) The sale of apartment contract is void if it is not made in

writing ⇒ False because according to article 129, if the contract
is not in written form but one or more parties have performed at
least 2/3 of the obligations then it is valid
c. Legal consequences: Article 131

If a party has performed the contract → return the

property/compensation
 5. REMEDIES FOR BREACH OF THE CONTRACT
1. Exemptions (miễn trừ) for non-performance
Art 294:

b. force majeure: trường hợp bất khả kháng. EX: Delivery contract cannot be
performed in case of natural disasters like floods, storms, war, accidents,changes in
government decision.. primarily prevent the payment obligations
ART 156.1 CIVIL CODE: 3 main conditions (highlighted) - objective,
unpredictable, unable to overcome

objective manner: not subjective, something out of our control

CISG 79.1: A party is not liable for a failure to perform any of his obligations if he
proves that the failure was due to an impediment beyond his control and that he
could not reasonably be expected to have taken the impediment into account at the
time of the conclusion of the contract or to have avoided or overcome it or its
consequences
→ specify the time regarding the predictability
When they sign the contract the pandemic already happened →
predictable → not a force majeure unless it is regarded a force
majeure in the agreement

c. Example: A and B sign the contract on sales of iron. A agrees to

pay money for B to buy the raw materials but because A doesn't pay
on time, B cannot deliver the materials on time ⇒ not B's fault
but A's fault

d. Example: A and B sign the contract on sales of silk but then in COVID-19,
company A is in the infected area so the government requires A to temporarily shut
down, so A cannot deliver the silk on time. So A can be excluded the obligations

Art 295. Commercial Law

promptly: ngay lập tức
Art 79.4: within a reasonable time , if not, liable for damages

Hardship: thay đổi hoàn cảnh cơ bản. Difference between the hardship and force
majeure: hardship and force majeure are based on the reasons that cannot be
foreseen. In case of force majeure, parties are excluded from the obligations as
provided in the law and it is mainly situated in the context of non-performance and
can refer to the suspension or termination of the contract. Otherwise, hardship
refers to the need for changes in the contract to balance the rights, benefits and
obligations of the contracting parties.
2. Remedies for breach of the contract