Contract Formation in Hong Kong

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.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

15. Good faith

Contract Law ◽  
2018 ◽  
Author(s):  
Mindy Chen-Wishart
Keyword(s):  
Contract Law ◽  
Good Faith ◽  
Diverse Range ◽  
General Duty ◽  
English Law ◽  
The Law ◽  
The Difference

English law does not currently recognise a general duty of good faith, but this position is increasingly being challenged. In addition, good faith informs a diverse range of legal doctrines and principles. This chapter addresses the following: the meaning of good faith; good faith in current contract law; and the nature of good faith. It further considers whether English law should recognise a general good faith doctrine and the difference this might make to various aspects of the law.

Service of Process in England on Overseas Companies and Article 5(5) of the Brussels Convention

1999 ◽  
Vol 48 (4) ◽  
pp. 921-936 ◽  
Author(s):  
Nelson E. Enonchong
Keyword(s):  
Great Britain ◽  
Common Law ◽  
General Rule ◽  
Brussels Convention ◽  
English Court ◽  
Natural Person ◽  
The Law ◽  
Special Rules ◽  
Article 5 ◽  
A Company

It is generally accepted that, in actions in personam, the foundation of the court's jurisdiction at common law is the service of process.1 To this extent the rules as to service define the limits of the court's jurisdiction. So, for a claimant to establish the jurisdiction of the English court over an overseas company2 he must be able to serve process on the company in accordance with the rules of service. The general rule is that an overseas company, like an individual, may be served with process in England if present within the jurisdiction.3 However, since a company is only a legal (not natural) person, it cannot be present in the same way as an individual. It has therefore been necessary for special rules to be laid down by which it can be determined whether or not an overseas company is present in England and therefore may be served with process here. Before 1992 those rules were contained in sections 691 and 695 of the Companies Act 19854 (the pre-1992 regime). However, in 1992 the law was amended and a separate provision was laid down in section 694A of the Companies Act 1985 to regulate the service of process on any overseas company with a branch in Great Britain (the 1992 regime).

GOOD FAITH PERFORMANCE IN CANADIAN CONTRACT LAW

2015 ◽  
Vol 74 (1) ◽  
pp. 4-7 ◽  
Author(s):  
Chris D.L. Hunt
Keyword(s):  
International Trade ◽  
General Principle ◽  
Common Law ◽  
Contract Law ◽  
Good Faith ◽  
Hospital Services ◽  
Similar Statement ◽  
General Duty ◽  
Binding Force

IN Mellish v Motteux (1792) 170 E.R. 113, 157, Lord Kenyon observed that “in contracts of all kinds, it is of the highest importance that courts of law should compel the observance of honesty and good faith”. This passage echoes a similar statement by Lord Mansfield 25 years earlier in Carter v Boehm (1766) 97 E.R. 1162, 1910. Despite these early statements of principle, the modern common law has been notoriously hostile to the notion that contracting parties are under a general duty of good faith in the performance of their obligations (see W.P. Yee, “Protecting Parties' Reasonable Expectations: A General Principle of Good Faith” (2001) 1 Oxford U. Commonwealth L.J. 195), and there is certainly “no firm line of modern cases to support such an obligation” in English law (see L.E. Trakman and K. Sharma, “The Binding Force of Agreements to Negotiate in Good Faith” [2014] C.L.J. 598). Nevertheless, some recent decisions in Australia, Canada, and England have begun to imply obligations to perform certain types of promises, in certain classes of contracts, in an honest manner, crafting, in the words of Lord Bingham, “piecemeal solutions in response to piecemeal problems” (Interfoto Picture Library v Stiletto Visual Programmes Ltd. [1989] 1 QB 433, 439 (CA)). A recent English example is Yam Seng Pte Ltd. v International Trade Corporation Ltd. [2013] EWHC 111 (QB) in which Leggatt J. found there to be an implied duty of “honesty” and “fidelity to the bargain” in the context of a long-term distribution contract. Importantly, His Lordship emphasised that whether such obligations can be implied is a matter of construction, which involves ascertaining the parties' objective intentions through conventional techniques such as the principle of business efficacy. As implying such obligations depends entirely on the context of each contract (at paras [137]–[143]) there is, at present, no general principle of good faith performance in English contract law, despite some case-by-case recognition (see Mid-Essex Hospital Services N.H.S. Trust v Compass Group UK and Ireland Ltd. [2013] EWCA Civ 200, at [105], [150]).

scholarly journals HOW STRICTLY DID THE ATHENIAN COURTS APPLY THE LAW? THE ROLE OF EPIEIKEIA

2013 ◽  
Vol 56 (1) ◽  
pp. 27-48 ◽  
Author(s):  
EDWARD HARRIS
Keyword(s):  
Common Law ◽  
General Rule ◽  
Nicomachean Ethics ◽  
The Common ◽  
The Law ◽  
Principles Of Justice ◽  
The Relationship ◽  
The City ◽  
Positivist Approach

Abstract H. Meyer‐Laurin has claimed that the Athenian courts took a stricti iuris approach to the law and did not take extenuating circumstances into account. Other scholars (Mirhady, Todd) have claimed that the courts sometimes ignored the law and took extra‐legal considerations into account, which was called ‘fairness’ (epieikeia). The essay begins with a careful reading of Aristotle's analysis of ‘fairness’ (epieikeia) in the Nicomachean Ethics and the Rhetoric and draws on an important essay by J. Brunschwig. Fairness was not a doctrine that attempted to undermine the authority of the law or placed the law of the city in opposition to the unwritten laws or the common law of mankind. Nor did the application of fairness introduce non‐legal factors into adjudication. Rather, fairness dealt with the problem of treating exceptions to the general rule contained in a specific written law. The essay then shows how litigants used arguments based on fairness and how the courts sometimes took extenuating circumstances into account. When Athenian judges swore to decide according to the laws of Athens, they did not just consider the law under which the accuser had brought his case. They could also take into account general principles of justice implicit in the laws of Athens as a whole. In this way, they avoided a rigid positivist approach to law. Finally, the essay sheds some light on the relationship between Aristotle's Rhetoric and the arguments used in the Athenian courts.

scholarly journals Lies, Collateral Lies and Insurance Claims: The Changing Landscape in Insurance Law

2018 ◽  
Vol 22 (2) ◽  
pp. 237-265
Author(s):  
Baris Soyer
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Insurance Fraud ◽  
England And Wales ◽  
Insurance Law ◽  
Significant Challenge ◽  
The Common ◽  
Utmost Good Faith ◽  
The Law ◽  
Definition Of

Determining the scope of the fraudulent claims rule in insurance law has posed a significant challenge for the courts, particularly in the last two decades. In the shadow of the doctrine of utmost good faith, the law in this area has developed in an uncompromising fashion introducing draconian remedies against an assured who submits a fraudulent claim. The Supreme Court's most recent intervention has provided much needed guidance on the state of the law. This article, taking into account the fact that in other areas of law more proportionate remedies have gradually been introduced, discusses the boundaries of the fraudulent claims rule in insurance law as it applies in England and Wales and Scotland. Considering that the insurers might be tempted to introduce fraudulent claims clauses into their contracts to expand the common law definition of insurance fraud at the claims stage, this article also evaluates the wording of such clauses often used in practice and concludes that they lack the desired clarity.

Contracts for the Benefit of Third Parties: Hong Kong

2018 ◽  
Author(s):  
Lee Mason
Keyword(s):  
Hong Kong ◽  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Strict Adherence ◽  
The Third ◽  
English Law ◽  
The Law ◽  
The Third Party ◽  
Contractual Rights

This chapter analyses the law on third party beneficiaries in Hong Kong long characterized by strict adherence to the traditional common law doctrine of privity. The law relating to third party rights was only reformed by way of Ordinance in 2016, along the lines of the statutory reform of English law in 1999. A small number of specifically enumerated types of contract are excluded from the scope of the Ordinance; other contracts may be concluded to confer enforceable contractual rights on third parties. Whether a third party may enforce a term of a contract depends on the interpretation of the contract: if the third party right was not expressly conferred there is a presumption that the conferral was intended; but this can be rebutted if the parties made it clear that they did not intend it to be enforceable. The third party must be identified by name, as a member of a class, or answering a particular description and may claim the same remedies for breach as a party to the contract.

In search of a privacy action against breaches of physical privacy in Hong Kong

2018 ◽  
Vol 47 (4) ◽  
pp. 225-247
Author(s):  
Jojo YC Mo
Keyword(s):  
Hong Kong ◽  
New Zealand ◽  
Private Information ◽  
Common Law ◽  
Law Reform ◽  
Confidential Information ◽  
Canadian Province ◽  
Privacy Laws ◽  
The Law

The focus of privacy laws in Hong Kong has always been on the use and dissemination of personal or confidential information, but a person’s privacy can also be intruded by unwanted watching or listening irrespective of whether information is collected or used. Despite an attempt to introduce two privacy torts by the Law Reform Commission of Hong Kong in 2004, there is no timetable as to when these two statutory torts be introduced. Recognition has been afforded for intrusions upon seclusion or solitude in a number of jurisdictions including New Zealand and the Canadian province of Ontario. In England, an intrusion tort has not been separately recognized, but the decision in Gulati v MGN confirmed that damages may still be awarded for an action for misuse of private information in instances where there is no disclosure or publication of the wrongfully acquired information. This article looks at the possibility of developing a common law action of privacy in Hong Kong which affords protection regardless of whether private information is acquired or published by drawing insights to the developments in New Zealand and England.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 23 Hong Kong: Hong Kong Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Reyes Anselmo
Keyword(s):  
Hong Kong ◽  
International Law ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
English Court ◽  
Choice Of Law ◽  
The Hague ◽  
The Law

This chapter explores Hong Kong perspectives on the Hague Principles. Hong Kong has no enacted code of private international law rules. In relation to contracts dealing with commercial matters, the choice of law principles of Hong Kong law are largely to be found at common law. Decisions of the English court, in particular, are often cited in Hong Kong as exemplifying the law on a given question. To a lesser degree, principles may be found in statute. While Hong Kong judges must look to case law to discern relevant choice of law principles, nothing prevents them from also having regard to the Hague Principles and holding that one or more articles therein accurately reflect Hong Kong law. Indeed, articles of the Hague Principles can be referred to by Hong Kong judges as accurate statements of present day Hong Kong law, as foundations for the refinement of existing common law rules, or as indications of how Hong Kong choice of law principles may be extended to deal with novel situations.

scholarly journals Restating the common law? The Social Action, Responsibility and Heroism Act 2015

Legal Studies ◽  
2017 ◽  
Vol 37 (4) ◽  
pp. 577-598 ◽  
Author(s):  
James Goudkamp
Keyword(s):  
Social Context ◽  
Social Action ◽  
Common Law ◽  
Personal Injury ◽  
Large Network ◽  
Reasonable Care ◽  
The Social ◽  
The Common ◽  
The Law

The Social Action, Responsibility and Heroism Act 2015 entered into force on 13 April 2015. It is too soon for it to have been considered judicially, and it has not yet been subjected to sustained academic analysis. Accordingly, this article considers its impact. In doing so, it situates the Act in its social context and draws attention to the fact that it is part of a large network of statutes that share the same objectives. It is argued, contrary to prevailing views, that parts of the Act change the law. It is also maintained that the Act’s reach is not confined to personal injury cases or even to tort cases. It potentially applies far more widely, including to contractual actions that allege a failure to take reasonable care. In addition to analysing the Act, this article investigates why the legislature might want to restate the common law (which is what the Act does in part), whether replicating the common law is desirable and, if the legislature is bent on restating the common law, how it should go about doing so.

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