2.

2 Rules
2.2.1 Based on civil code 2015
Article 116. Civil transactions
Civil transactions included: a contract or a unilateral legal act which gives rise to,
changes or terminates civil rights and/or obligations
Article 117. Conditions for effective civil transactions
 A civil transaction shall be effective when following conditions:
o Participants have legal personality and/or legal capacity based on
each transaction;
o Participants in the transaction act entirely voluntarily;
o The purpose and contents of the transaction are legal and/or suitable
with social ethics
 In some casess, parties shall follow the forms provided by law to make sure
they are effective.
Article 119. Forms of civil transactions
 A civil transaction shall be expressed verbally, in writing, or through
specific acts.
 Civil transactions in electronic shall be deemed to be written civil
transactions.
 In some cases, civil transaction must be expressed in writing, notarized,
authenticated, registered or permitted, such provisions must be complied
with law
Article 400. Time when contracts are entered into
 When acceptance is received by offeror (indirect contract);
 At the end of the term of the offer if agreed by the parties that silence
amounts to acceptance;
 At the time the parties agree with each other on the contents of the contract
(Oral contract);
 At the time the last party signs the contract or other way of acceptance in
writing (direct contract)
Article 419. The damage to be compensated for breach of contract
 A remedy whereby the breaching party pays an amount of money to compensate
for the loss caused by its breach of contract to the other party.
 Unless otherwise agreed by the parties or as provided otherwise by applicable law,
the value of damages covers
o The value of the actual and direct lost suffered by the aggrieved party;
o The loss of profits which the aggrieved party would have earned if such
breach had not been committed.
Article 513. Contracts for services
Contract for services means an agreement between parties whereby a service provider
performs an act for paying a fee for that act.
Article 519. Payment of fees
 A client must pay the agreed fee for services.
 If parties have no agreement about fee, the service fee rate shall be fixed on
the basis of market fees for services of the same type when the contract was
entered into.
 Where the services provided fail, the client has the right to reduce the fee
for services and demand compensation for damage.
2.2.2 Based on law on Enterprises:
Article 46. Multi-member limited liability companies
 Having 02 – 50 members that are organizations or individuals.
 The members have liability for debts and other liabilities based on their capital,
except for the cases specified in Clause 4 Article 47 of this Law.
 The member’s stake may only be transferred according to Articles 51, 52 and 53
of this Law.
 Having the status of a juridical person from the day on which the Certificate of
Enterprise Registration is issued.
 Must not issue shares except for equitization.
 may issue bonds based on Law
Article 74. SINGLE -MEMBER LIMITED LIABILITY COMPANIES
 owned by a single organization or individual
 The owner’s liability for the company’s debts and other liabilities based on their
capital.
 having the status of a juridical person from the day on which the Certificate of
Enterprise Registration is issued.
 Must not issue shares except for equitization.
 may issue bonds based on law.
Article 111. Joint stock companies
 The charter capital in that company is divided into units of equal value called
shares;
 Shareholders can be organizations and individuals, the minimum number of
shareholders is 03
 A shareholder’s liability for the company’s debts and liabilities based on their
capital and may transfer their shares accoring to law
 Having the status of a juridical person from the day on which the Certificate of
Enterprise Registration is issued.
  May issue shares, bonds and other kinds of securities accoring to law
2.3 Application
2.3.1 whether between Nextel and Clark have a contract?
* According to Article 385 Civil Code 2015, the legal agreement between the parties
become a contract, if it relates to the establishment, modification or termination of civil
rights and obligations.
- The agreement between Nextel and Clark is legal and not banned by law.
- The agreement between Nextel and Clark establishes civil rights and obligations both 2
parties
+ Right and obligation for Nextel: Nextel would have a worker for employment manager
position in for Nextel’s call center in Atlanta, Georgia and shall pay a service fee for
Clark because of hiring worker for Nextel.
+ Right and obligation for Clark: Clark has a obligation to find employee for Nextel and
be paid service fee for that.
=> Between Nextel and Clark have a contract
2.3.2 Whether the contract between Nextel and Clark is valid?
* Based on Article 116 Civil code 2015, contract is a civil transaction. Therefore,
conditions for effective civil transaction are aslo be effective on the contract. According
to Article 114 Civil code 2015, there are three or four conditions for effective transaction:
- Participants in the contract have legal personality and legal capacity in conformity with
such contract: Both Nextel and Clark have legal personality and legal capacity in
conformity with service contract
- Participants in the contractual act entirely voluntarily: Both parties are voluntary, not
mention of fraud or deception
- The purpose and contents of the contract are not contrary to the law: The purpose of the
contract between both parties is finding employee for Nextel and content is that Nextel
hires Clark help Nextel justify candidate. Therefore, the purpose and content between
both parties are not prohibited by law
- Form:
+ Based on Article 119 Civil code 2015, a contract shall be expressed verbally, in
writing, or through specific acts. Some cases shall be expressed in writing are provided
by law.
+ In this case, Nextel contacted Clark fiding an employment manager for Nextel in
Atlanta, Georgia. The contract between parties is verbal. According to Article 116, 119
Civil Code 2015, a contract shall be expressed verbally. Based on clause 3 Article 400,
the time when an oral contract is entered into is the time when the parties have reached
agreement on the contents of the contract. Cause Nextel made the request and although
Clark did not say yes, the act of finding candidates for Nextel proving that Clark accepted
the contract. For these reasons, between Nextel and Clark existed an oral contract.
=> For these reasons, the service contract between Nextel and Clark is valid, so both
parites are required to fulfill their obligations and have the rights in that contract
2.3.3 Breach the contract and remadies
* Based on Article 513 Civil code 2015, a service provider, who performs an act for a
client is paid a fee for that act. In this case, Clark is a service provider and Nextel is a
client so Nextel must pay service fee for Clark. But Nextel Nextel refused to pay,
asserting in part that the parties had not signed an agreement. Because the service
contract between Clark and Nextel is valid, the Nextel’s refusal means Nextel breached
the contract.
+ Due to breach of obligations in the contract, Nextel have liability for compensation
according to Article 260 Civil code 2015. Based on art 2 Article 419 Civil code 2015,
Clark may demand compensation for damage to its supposed benefits that will be enjoyed
by the contract offer. Clark also may request Nextel to pay the costs incurred due to its
non-fulfillment of contractual obligations which do not overlap with the compensation
for damages for contractual benefits.
+ According to clause 2 Article 519 Civil Code 2015, if, upon entering a contract, there is
no agreement on the service fee rate or no other instructions on fee, the service fee rate
shall be fixed on the basis of market fees for services of the same type at the time when
and place where the contract was entered into. In this situation, Althought Nextel and
Clark no agreement on service fee rate, Nextel’s typical agreement specified payment to
an employment agency of 20 percent of an employee that agency find. Because of that,
Nextel shall pay for Clark 15.000 USD.
2.4 Conclusion
Applying Vietnamese Law, the court will rule in favor of Clark