PERFORMANCE WAIVER AND ESTOPPEL Ernest Yang Partner and

合约的履行，弃权与禁反言 PERFORMANCE, WAIVER AND ESTOPPEL 杨大明，合伙人，香港诉讼及监管部负责人 Ernest Yang, Partner and Head of Litigation & Regulatory, Hong Kong www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’

概念 (Concept) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 1

概念 (Concept) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 2

概念 (Concept) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 3

概念 (Concept) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 4

概念 (Concept) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 5

书本内容 (Contents of the Book) 合约的履行 (Performance of Contract) 合约的受阻 (Frustration of Contract) 弃权 (Waiver) 禁反言 (Estoppel) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 6

合约的履行 (Performance of Contract) "There are various types of conduct or inaction which might be relied on to support the inference of renunciation. There might be: an absolute failure or refusal to act; or failure or refusal to act fully; or a failure or refusal to act other than on unjustified terms now proposed, or perhaps insisted upon, where these are inconsistent with the true agreement. It can thus involve indicating that 'I will not be doing this at all', 'I will not be doing this in full', or 'I will not be performing as originally agreed because I intend to carry out the contract in my way, even though this might be substantially inconsistent with the contract. ": <Contractual Duties: Performance, Breach, Termination and Remedies> 绝对没有或拒绝履行合同 (absolute failure or refusal to act) 绝对没有或拒绝履行合同的全部 (absolute failure or refusal to act fully) 绝对没有或拒绝履行除非增加一些与合同不符而没理由的额外条件 (absolute failure or refusal to act other than on unjustified terms inconsistent with the true agreement) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 7

合约的履行 (Performance of Contract) "[买方] will use every endeavor to secure alternative finance and if successful inform sellers accordingly however our recent experience does not give us any great encouragement at least in the immediate future" "Our immediate consideration is to endeavor to solve the situation whereby [卖 方] are in no way financially affected by our present position … The obvious way to achieve a financial satisfactory answer … is to resell the vessel at a price which will result in [卖方] receiving the full purchase price… and we thank [卖方] for advising us to do so. " 有没有拒绝履行合同？(Was there a refusal to perform? ) The Hazelmoor [1980] 2 Lloyd's Rep 351 www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 8

合约的履行 (Performance of Contract) "[船东 ] confirm that we shall withdraw the vessel from Charterers' service as per our telex of 18 th July 1980. " "Failing your payment [指租金 ] we shall exercise our right of withdrawing the vessel without any further notice. " 有没有拒绝履行合同？(Was there a refusal to perform? ) The Lutetian [1982] 2 Lloyd's Rep 140 www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 9

合约的履行 (Performance of Contract) "[船东 ] confirm that we shall withdraw the vessel from Charterers' service as per our telex of 18 th July 1980. " "Failing your payment [指租金 ] we shall exercise our right of withdrawing the vessel without any further notice. " 有没有拒绝履行合同？(Was there a refusal to perform? ) The Lutetian [1982] 2 Lloyd's Rep 140 www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 10

合约的履行 (Performance of Contract) "Under this situation, the earliest delivery of engine is the end of Aug of 2010. It means the earliest arrival date will be end of September. It is obviously that the original delivery time could not be kept. Hereby we would like to present our proposal as following: 1. our best install the main engine after launching and shorten the period to deliver the vessel at the end of Dec of 2010 resp. the end of March of 2011. Of course, it should be very tight and difficult to reach. Or 2. the Ifowner doesn’t agree the USD 1. 7 million as the extra cost, we kindly request the owner could agree the new delivery date to be the end of march of 2011 resp. the end of July of 2011, because it is normal to finish the construction of the vessel 7 months after the main engine arrival. We, of course, are very happy if the owner could share partly of extra cost. However, we would like to reserve the right to change the main engine to Man B&W type with the same power later as the price of main engine Wartsila is too high. www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 11

合约的履行 (Performance of Contract) Or 3. we have no choice to apologize that we could not fulfill the responsibility of the Shipbuilding Contract. Please come to discuss the cancellation and termination of the Shipbuilding Contract. For the shipyard side, we are willing to continue the cooperation with your good company and prefer the above proposal no. 2. However, we must face to the reality and the foreseeable future and make the decision to minus the loss of both sides at the earlier stage. " 有没有拒绝履行合同？(Was there a refusal to perform? ) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 12

合约的履行 (Performance of Contract) "The Masters of the Benfri, Nanfri and Lorfri are being instructed to withdraw all direct or implied authority to Charterers or its agents to sign bills of lading. Please present all bills of lading to the Master for signature. Note that the Masters will not sign any bill of lading (1) endorsed 'freight prepaid' …" 有没有拒绝履行合同？(Was there a refusal to perform? ) The Nanfri [1979] 1 Lloyd's Rep 201. www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 13

合约的受阻 (Frustration of Contract) “…… frustration occurs whenever the law recognises that, without default of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract …. . . It was not this that I promised to do … … it is not hardship or inconvenience or material loss itself which calls the principle of frustration into play, there must be as well such a change in the significance of the obligation that the thing undertaken would, if performed, be a different thing from that contracted for. ": Davis Contractors v. Fareham [1956] AC 696. 任何一方都没有责的情况下 (without default of either party) 合同没法履行 (contractual obligation become incapable of being performed) 所履行的变为与在合同下答应的事情完全不同 (circumstances render it a thing radically different from that which was undertaken by the contract) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 14

合约的受阻 (Frustration of Contract) 合同的主要内容被破坏 (Destruction of the subject matter of the contract) 合同的主要内容被政府没收或征用 (Expropriation or requisition by government of the subject matter of the contract) 足够破坏双方在合同下的共同目的的延误 (Delay sufficiently lengthy to frustrate the commercial adventure of the parties) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 15

合约的受阻 (Frustration of Contract) 金融危机？(Financial crisis? ) 制裁或关税？(Imposition of sanctions or tariffs? ) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 16

弃权 (Waiver) “Broadly speaking, there are two types of waiver strictly so - called: unilateral waiver and waiver by election. Unilateral waiver arises where X alone has the benefit of a particular clause in a contract and decides unilaterally not to exercise the right or to forego the benefit conferred by that particular clause. It has been described as: ‘The abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted. In such a case, X may expressly or by his conduct suggest that Y need not perform an obligation under the contract, no question of an election by X between two remedies or courses of action being involved. Waiver by election on the other hand is concerned with the reaction of X when faced with conduct by Y, or a particular factual situation which has arisen, which entitles X to exercise or refrain from exercising a particular right to the prejudice of Y. " www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 17

弃权 (Waiver) "Whilst reserving all their rights [the buyers] shall revert on the RG issue shortly. In the meantime, given [the shipyard's] flat refusal to deal with the dispute that has arisen, buyers request that all further correspondence be directed to their lawyers and they continue to reserve all their rights. " "[The buyers] are pushing for status on Refund Guarantee as seems they have new buyer in place. Pls advise urgently where we stand on this. " 有没有弃权 / 确定合同 / 选择？(Was there a waiver / affirmation / election? ) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 19

禁反言 (Estoppel) 承诺性禁反言 (Promissory estoppel) 陈述性禁反言 (Estoppel by representation) 共识性禁反言 (Estoppel by convention) 产权性禁反言 (Proprietary estoppel) 合约性禁反言 (Contractual estoppel) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 20

禁反言 (Estoppel) 承诺性禁反言 (Promissory estoppel) "It seems to me to amount to this, that if persons who have contractual rights against others induce by their conduct those against whom they have such rights to believe that such rights will either not be enforced or will be kept in suspense or abeyance for some particular time, those persons will not be allowed by a Court of Equity to enforce the rights until such time has elapsed, without at all events placing the parties in the same position as they were before. " 不模糊的承诺 (Unequivocal promise) 受到损害的依赖 (Detrimental reliance) 暂时性 (Suspensory) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 21

禁反言 (Estoppel) 陈述性禁反言 (Estoppel by representation) "The basic principle is that a person who makes an unambiguous representation, by words, or conduct, or by silence, of an existing fact, and causes another party to act to his detriment in reliance on the representation will not be permitted subsequently to act inconsistently with that representation. " 对于事实作出不模糊的陈述 (Unambiguous representation of an existing fact) 受到损害的依赖 (Detrimental reliance) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 22

禁反言 (Estoppel) 共识性禁反言 (Estoppel by convention) "The principles applicable to the assertion of an estoppel by convention…are as follows: (i) It is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly shared between them. (ii) The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the same of conveying to the other party an understanding that he expected the other party to rely upon it. (iii) The person alleging the estoppel must in fact have relied upon the common assumption to a sufficient extent, rather than merely upon his own independent view of the matter. (iv) That reliance must have occurred in connection with some subsequent mutual dealing between the parties. (v) Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position. " www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 23

禁反言 (Estoppel) 共识性禁反言 (Estoppel by convention) 明示沟通过的共识 (Expressly shared common assumption) 对双方达成共识或假设有一定的责任 (Assumed some element of responsibility) 依赖 (Reliance) 体现在双方随后的交往中 (In connection with subsequent mutual dealing) 损害或益处足够让偏离双方对于法律或事实的共识不公平或不合情理 (Detriment or benefit sufficient to make it unjust or unconscionable to assert the true legal or factual position) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 24

禁反言 (Estoppel) 产权性禁反言 (Proprietary estoppel) "If A, under an expectation created or encouraged by B that A shall have a certain interest in land, thereafter, on the faith of such expectation and with the knowledge of B and without objection from him, acts to his detriment in connection with such land, a Court of Equity will compel B to give effect to such expectation. " 陈述 (Representation) 依赖 (Reliance) 损害 (Detriment) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 25

禁反言 (Estoppel) 合约性禁反言 (Contractual estoppel) “This form of 'estoppel' is said to arise when contracting parties have, in their contract, agreed that a specified state of affairs is to form the basis on which they are contracting or is to be taken, for the purpose of the contract, to exist. The effect of such 'contractual estoppel' is that it precludes a party to the contract from alleging that the actual facts are inconsistent with the state of affairs so specified in the contract. " 清楚并不模糊 (Clear and unambiguous) 应该是被依赖的 (Meant to be acted upon) 相信是真实并因此依赖该陈述而做出行为 (Believed to be true and induced by such belief to act upon it) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 26

禁反言 (Estoppel) 事实背景 (Facts): – A与B有备忘录互租多条船 (MOA between A and B for chartering of multiple vessels) – 备忘录容许一方因对方控制权改变时在某些情况下终止合同 (MOA contains provision which allows one party to terminate if there was change of control of the other under certain circumstances) – 虽然不需，但双方讨论并同意一些履行合同的细节并同意了租约，虽然没签。租约没 有控制权改变条款 (Although unnecessary, the parties discussed terms as to how to perform the MOA and agreed charterparties, although unsigned. The charterparties do not contain the change of control clause found in the MOA. ) – B的控制权改变了 (Change of control of B took place) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 27

禁反言 (Estoppel) 事实背景 (Facts): – 控制权改变前，但双方明显考虑到这方面的情况下，B要求A签署租约与一份确认租约 被转让给银行的函。 A坚持文件必须清楚表明这是不影响A可以因控制权改变而终止合 同。B同意了而A也签了。 (Right before the change of control, but with the possibility of this in mind, B asked A to sign both the charterparties and an acknowledgement of notice of assignment which B had to pass to its bank. A insisted that the document contain wording that this is without prejudice to A's right to terminate the contract if there was change of control under the clause contained in the MOA. B agreed and A signed the documents. ) – 当A尝试终止合同，B说A没有权力因为租约没有控制权改变条款 (When A sought to terminate for change of control, B argued that there was no such right because the charterparties did not contain the change of control clause) www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 28

禁反言 (Estoppel) 用词 (Wording): "Without limiting ours rights to terminate the charter as a result of a change in control under section xx of the MOA dated xx, we confirm that to the best of our knowledge the Charter is in full force in and effect and neither party is in default under its terms. " www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 29

在以上情况，有没有: (In the above situation, was there) : - A. 承诺性禁反言 Promissory estoppel B. 陈述性禁反言 Estoppel by representation C. 共识性禁反言 D. 合约性禁反言 Contractual estoppel www. dlapiper. com Estoppel by convention Insert date with ‘Firm Tools > Change Presentation’ 30

谢谢 (THANK YOU) 杨大明 (Ernest Yang) 欧华律师事务所 (DLA Piper) T: +852 2103 0768 M (HK): +852 9456 9932 M (PRC): +86 132 9610 5397 E: ernest. yang@dlapiper. com www. dlapiper. com Insert date with ‘Firm Tools > Change Presentation’ 31