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On The Case Of Di Kai’s Contract Dispute

Posted on:2015-10-07Degree:MasterType:Thesis
Country:ChinaCandidate:J ZengFull Text:PDF
GTID:2296330431956242Subject:Law
Abstract/Summary:PDF Full Text Request
The paper attempts to Dikai company and The third engineering companycontract dispute case, in order to provides the basis to the judicial practice in suchcases. In DiKai companies,the disputed pointed are three major commitment: Thearticles of liquidated damages Mr Tan signed have any legal recognition? whatstandard the counterpart” have reason to believe” that the behavior have agencyshould satisfy? agency by estoppels or unauthorized? the nature of 《Commissionpaid contract》,assignment of claims、undertaking of obligation、a contract on theperformance of a third party and a contract to be performed to a third party,reinforcedevidence;the nature of liquidated Damages,punitive or Compensatory?and also theadjustment of the amount of liquidated damages. In this article,combine with detailsof the case,court’s judgment and related laws, finaly get the followingconclusion:first Mr Tan acted on behalf of The Third engineering company andsigned the articles of liquidated damages have no legal effect, but The thirdengineering company take implied ratification, thus make the articles have legalrecognition。The counterpart” have reason to believe” should act as a common rationalpeople, using objective criteria; second, the nature of 《Commission paid contract》belong to assignment of claims, the signature of Dikai’s legal representative is ok;Third, about the positioning of punitive liquidated damages, mainly discusses thecompensatory and punitive liquidated damages the difference between liquidateddamages, associated with the academic point of view and comment on the author’sunderstanding. In my opinion, compensatory amount of liquidated damages to bedetermined based on the actual losses; punitive penalty applies mainly to study theexistence of fault, ragardless of the specific amount of actual loss. the situation ofthis case belong to the former,and the penalty is too high in the identification andadjustment should be guided by overdue interest on bank loans over the sameperiod.Additionally, when consider about Defective evidence and contextexplanation,The judge should stand for honesty,equity and humility.
Keywords/Search Tags:Agency by estoppels, Assignment of claims, Defective evidence, liquidated damages
PDF Full Text Request
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