University of Cambodia College of Law

Course on Contract LawLAW105 Instructed by Mr. Tep Punloeu Name: Chinket Tola ID: UC-60-47-79 Room: 301 Session: Afternoon

Homework
Question 1. What is a contract? A contract is a legally agreement between two or more parties (individuals, businesses, organizations, companies, or government agencies) to do, or to refrain from doing, a particular thing in exchange for something of value. Contract can generally be made in written formal or informal form, or they can completely be made in oral form1. According to Article 311 of Cambodia Civil Code, contract is the matching of intentions help by two or more parties to create, change, or extinguish an obligation. Generally, contract is distinguished in two main different types, the unilateral contract and bilateral contract2. What are they about? A unilateral contract is a contract which only one party performs the obligation, the party does not perform the obligation can perform his or her right to claim for the objects of contract. As an example of donation contract,
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What is a contract? Retrieved on November 8, 2012 from http://law.freeadvice.com/general_practice/contract_law/contract_agreement.htm 2 Nomi, Y., Niimi, I., Yamamoto, Y., & Nomura, T. (2010). Interpretation on each article in Civil Code (Volume 2: Book 4), Article 311: Definition of Contract. Phnom Penh: Ministry of Justice. pp. 5-6.

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only donor performs the obligation to donate; however, done does not need to perform the obligation but the right to demand for objects of donation3. Differently, a bilateral contract refers to the contract which both parties performs the obligations and the rights to each other. For instance, in sale contract, seller has to give the goods to the buyer; on the other hand, the buyer has to pay for goods to seller4. Question 2. What are the principles of freedom of contract? Article 3 of Cambodian Civil Code stipulated:
Under this Code, legal relations among private persons, including corporations, shall be equal and equivalent, with respect for the free intention of the individual. Public corporations shall be deemed private persons in connection with their legal relations that arise from transactions.

It means the state cannot intervene actively into individuals private life. Private individuals shall express their freedom of intention freely. If the public institutions want to do the business with the other private individuals, they shall perform their obligation and rights as those private individuals equally and equivalently. Moreover, among private individual and private individual, they have freedom to do business and make contracts in equality and equivalence. In free market and democratic country, private individual cannot be bound by others intentions unless he or she agrees to make a contract with them by his or her intentions5. Therefore, we can find that the principles of freedom of contract are under this provision. Based on this provision, Nomura Toyohiro defined the principles of freedom of contract in his book into four distinctions. Each party in the contract has freedom to decide to conclude or not conclude the contract; Each party has the right to choose which party he or she shall conclude the contract with; Each party of the contract can decide to determine the contracts formwritten or oral form freely; Each party of the contract has freedom to determine the contents of contract.

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Nomura, T. (2011). Introduction to Civil Law (5th Ed.). Phnom Penh: JICA. pp. 72. Ibid. 5 Morishima, A., Yamamoto, Y., Niimi, I., Urakawa, M., & Matsumoto, T. (2009). Interpretation on each article of Civil Code (Volume 1: Book 1-3), Article 3: The Principle of Private Autonomy. Phnom Penh: Ministry of Justice. pp. 2

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These four distinctions were written the old Civil Code (New Civil Code does not require), but they are now considered as the norm generally recognized. For example, in selling and buying relation, seller can decide to sell the products to one among his or her costumers freely if she or he thinks which one offers better price. However, the buyer can decide to buy the products from one of sellers in the market freely.

References: Civil Code of Kingdom of Cambodia. (2007). Phnom Penh: Ministry of Justice. Morishima, A., Yamamoto, Y., Niimi, I., Urakawa, M., & Matsumoto, T. (2009). Interpretation on each article of Civil Code (Volume 1: Book 1-3). Phnom Penh: Ministry of Justice. Nomi, Y., Niimi, I., Yamamoto, Y., & Nomura, T. (2010). Interpretation on each article in Civil Code (Volume 2: Book 4). Phnom Penh: Ministry of Justice. Nomura, T. (2011). Introduction to Civil Law (5th Ed.). Phnom Penh: JICA. What is a contract? Retrieved on November 8, 2012 from http://law.freeadvice.com/general_practice/contract_law/contract_agreement.htm

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