Neville Wang

Qi Wang Phone:- Email- Writing Sample: Purchase Agreement I developed this writing sample as part of the Contract Drafting class where I learned how to draft and amend contracts in common US formats. This amendment agreement is an exercise I developed in the course. This exercise demonstrates that I am able to review and amend contracts for business transactions in the US. FIRST AMENDMENT TO PAPERWEIGHT PURCHASE AGREEMENT This First Amendment to Paperweight Purchase Agreement (this “First Amendment”), dated April 14, 2020, to the Paperweight Purchase Agreement dated September 10, 2019, between Anna Claire Glass, an individual who resides at 1665 Sandyfire Avenue, Decatur, Georgia 30322 (the “Seller”) and Cole Lector Art Gallery, Inc., a Georgia corporation with its principal place of business located at 14 Van Gogh Lane, Atlanta, Georgia 30322 (the “Buyer”). Background The Seller and the Buyer entered into the Paperweight Purchase Agreement dated September 10, 2019 (the “Existing Agreement”), and the parties now desire to amend the Existing Agreement. Accordingly, the parties agree as follows: 1. 2. Definitions. Terms defined in the preamble and the Background section have their assigned meanings, and capitalized terms used in this Amendment without definition have the meanings assigned to them in the Existing Agreement. Definitions in the Existing Agreement that are amended by this First Amendment have the meaning assigned to them in this First Amendment. Amendments (a) Paragraph (k) under Article I of the Existing Agreement is deleted in its entirety and replaced with the following: (k) “Paperweight” means each of the five glass objects created by the Seller as part of her "Transparent Nightmare" series and identified by the code TN01 (titled The Rule Against Perpetuity), TN02 (titled Res Ipsa Loquitur), TN03 (titled Hung Jury), TN04 (titled Carp, Shark, Dolphin), or TN06 (titled Termination for Material Breach), the code number and name of which is applied with a permanent sticker to the bottom of the object. Photographs of the Paperweights are attached to this Agreement as Exhibits A, B, C, and D, and this First Amendment as Amended Exhibit E. 1 (b) The defined term “Public Display” in Paragraph (l) under Article I of the Existing Agreement is amended by deleting “Public Display” and replacing it with “Exhibition.” (c) Section 3.01 of the Existing Agreement is amended by deleting “May 15, 2020” and replacing it with “August 15, 2020.” (d) Section 4.03(b) of the Existing Agreement is amended by deleting “June 1, 2020” and replacing it with “September 1, 2020.” (e) Section 5.03 of the Existing Agreement is amended by deleting “May 15, 2020” and replacing it with “August 15, 2020.” (f) Section 6.02 (d) of the Existing Agreement is amended by deleting “May 14, 2020” and replacing it with “August 14, 2020.” (g) Section 7.03 of the Existing Agreement is amended by: (i) deleting “and Insurance” from the Section’s title; (ii) deleting “and” from Section 7.03(b); (iii) deleting the last period From Section 7.03(c) and replacing it with a semicolon; and (iv) inserting the following provision after Subsection 7.03(c) as Subsection 7.03(d): (d) make a phone call to Mr. Lector upon discovery of entrance into Seller’s home and tampering with any Paperweight by any burglar, provided that Seller is relieved from physical danger from the burglary. (h) Section 9.03 of the Existing Agreement is amended by deleting it in its entirety. Section 9.04 is amended and renumbered as the new Section 9.03. (i) The Existing Agreement is amended by inserting the following provision as Article X after the Existing Agreement’s Article IX and before the Existing Agreement’s Article X. Article X. Confidentiality Section 10.01 Seller’s Non-Disclosure Obligation. During the Term and for one year after the end of the Term, the Seller shall not disclose the Purchase Price to anyone but her attorneys and financial advisors. 2 Section 10.02 Buyer’s Non-Disclosure Obligation. During the Term and for one year after the end of the Term, the Buyer shall not disclose the number of paperweights remaining in the Seller’s “Transparent Nightmare” series to anyone. (j) Renumbering of Article X and Article XI. The Existing Agreement is amended to change the number of Article X to Article XI and to change the number of Article XI to Article XII. Accordingly, the Existing Agreement is further amended to change the numbers of the sections in Article X from Sections 10.01 through 10.04 to Sections 11.01 through 11.04. In addition, the Existing Agreement is amended to change the numbers of the sections in Article XI from Sections 11.01 through 11.08 to Sections 12.01 through 12.08. Crossreferences in the Existing Agreement are amended accordingly. (k) Replacement of Exhibit E. Exhibit E attached to the Existing Agreement is amended and replaced with the Amended Exhibit E attached to this First Amendment. (l) Continuation of Existing Agreement. Except for the amendments made in this First Amendment, the Existing Amendment remains unchanged and in full effect. (m) General Provisions. (i) Choice of Law. The laws of the State of Georgia govern all matters arising out of or relating to this First Amendment, including, without limitation, its validity, interpretation, construction, performance, and enforcement. (ii) Merger. This First Amendment constitutes the final agreement between the parties pertaining to its subject matter, and it supersedes all prior and contemporaneous agreements, representations and understanding of the parties except for the Existing Agreement, which remains in full effect as prescribed in the above Paragraph (i). (iii) Severability. If any provision of this First Amendment is determined to be invalid, illegal, or unenforceable, the remaining provisions of this First 3 Amendment remain in full force, as long as the essential terms and conditions of this First Amendment for each party remain valid, binding and enforceable. (iv) Counterparts. The parties may execute this First Amendment in one or more counterparts, each of which is an original, and all of which constitute only one agreement between the parties. AGREED: ANNA CLAIRE GLASS COLE LECTOR ART GALLERY, INC. Anna Claire Glass Arthur Cole Lector Title: President 4 AMENDED EXHIBIT E Paperweight No. TN06 in the Transparent Nightmare Series Title: Termination for Material Breach 5 Qi Wang Phone:- Email- Writing Sample: Comparative Law Essay I developed this writing sample as part of the US Culture and Language for Law class where I learned the principles of written US academic legal discourse, US written discourse structure, and how to use and attribute source materials. This short paper attempts to describe and contrast one facet of the legal system in China and the United States legal system. This memo demonstrates that I am able to write short paper in US academic legal structure. The Estoppel Doctrine in China - A Comparative Law Perspective As a legal doctrine rooted in common law and equity jurisdictions including the U.S. and the U.K., the estoppel doctrine has been applied in an implicit manner in the civil law jurisdiction of China. Even though the estoppel doctrine is not written in Chinese laws, it has been recognized by both the academia and Chinese courts as a part of the principle of good faith. This paper introduces the functionality of the estoppel doctrine in general civil procedure in China and discusses the limitations in applying the estoppel doctrine to China’s contract law legislation and enforcement. The contrast between jurisdictions and laws with or without the estoppel doctrine calls for the Chinese legislature and courts to adopt a more comprehensive estoppel doctrine in promulgating and enforcing contract law and regulations. This paper firstly introduces the concept and inception of the estoppel doctrine in common law and equity jurisdictions. Part 2 of this paper introduces the functionality of the estoppel doctrine in general civil procedure in China. Part 3 of this paper discusses the limitations in the application of the estoppel doctrine in the legislation and enforcement of China’s contract law. The last part concludes the analysis and calls for the adoption of the estoppel doctrine in a more comprehensive manner. I. The estoppel doctrine Originated from the French, “estoppel” literally means “stop up”, which refers to placing a halt on the imbalance of the situation. 1 In the U.S. law, “estoppel” means “A 1 The American Heritage Dictionary of the English Language, Fifth Edition, 1 / 9 bar or impediment raised by the law, which precludes a man from alleging or from denying a certain fact or state of facts, in consequence of his previous allegation or denial or conduct or admission, or in consequence of a final adjudication of the matter in a court of law.” 2 The estoppel doctrine in general civil procedure is most known as “issue preclusion” and “promissory estoppel.” The doctrine of issue preclusion, also known as collateral estoppel, prevents a person from relitigating an issue already determined by a court. The rationale behind issue preclusion is the prevention of legal harassment and the prevention of overuse or abuse of judicial resources. Found in contract law, the doctrine of promissory estoppel prevents one party from withdrawing a promise made to a second party if the latter has reasonably relied on that promise to her detriment. Section 90 (1) of the legal treatise Restatement (Second) of Contracts by the American Law Institute provides that “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.” II. Functionality of the estoppel doctrine in general civil procedure in https://ahdictionary.com/word/search.html?q=estoppel. 2 Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed., https://thelawdictionary.org/estoppel/. 2 / 9 China The mainland of the People’s Republic of China, as a civil law jurisdiction, has employed the similar issue preclusion rule implicitly in its general civil procedure laws. The most noticeable type is preclusion of a litigant’s contradictory acts or assertions. Specifically, if a party makes an act or assertion that causes another party to act reasonably in reliance upon the former party’s act or assertion, the former party shall be bound to its own act or assertion. A party’s act can be deemed as admission and consent to assume liabilities, thus is prevented from revocation by the issue preclusion rule of the estoppel doctrine. For instance, where a creditor (the plaintiff) files a lawsuit to recover a loan lent to a decedent from the decedent’s estate, an heir appoints an attorney and appears in court on behalf of the decedent as the defendant. Upon receiving a judgment entered in favor of the creditor, the heir appeals and argues that he had no standing in the first suit in an attempt to invalidate the unfavorable judgment and shield him from liabilities. The appellate court customarily sustains the judgment regardless of the heir’s contradictory representations, because the appellate court interprets the heir’s appearance and appointment of an attorney in the trial court as acknowledgement and consent to standing. Similarly, the issue preclusion rule also applies to a litigant’s assertions and evidence submitted. For instance, a party in a case cannot challenge the credibility of the same evidence submitted to another court by itself previously in another case even if 3 / 9 the court of the current case did not grant the party chances to review and challenge the said evidence. 3 The Supreme Court of the PRC once determined in multiple cases 4 that if a party makes contradictory statements before the courts while the party cannot provide reasonable explanation or solid evidence to justify the contradictory statements, the court will hold the former statement as true and disregard the later contradictory statement. The rule of issue preclusion also applies when Chinese courts generally refuse to hear repetitive actions filed by the same party based on the same claims and evidence determined by a prior judgment in force. The issue preclusion rule also applies to donation for public welfare or moral obligation in contract law. Article 186 of the Chinese Contract Law provides that “The donor may rescind the donation before the rights in the donated property have been transferred. Where the donation contract was made for public welfare or imposed a moral obligation in providing for disaster or poverty relief, or the donation is notarised, the provisions of the preceding paragraph shall not apply.” The above application of the estoppel rule in China is to a certain degree similar to the U.S. law. However, under China’s civil law jurisdiction system, the estoppel doctrine is not explicitly written into the laws as a legal institution. One reason may lie in the fact that the estoppel doctrine was developed as an equitable remedy and equity is 3 4 http://www.law114.com.cn/pufa_x.php?l=6&id=24484&pid=3 Id 1. 4 / 9 part of common law legal tradition only. On the other hand, civil jurisdictions adopt the principle of good faith, also known as bona fides, to govern civil activities and transactions. The estoppel doctrine has been interpreted as part of the principle of good faith by Chinese jurists. Such interpretation is not without its drawbacks as the ensuing part of this paper discusses in detail. III. Limitation of the estoppel doctrine in China’s contract law Granted that the estoppel doctrine exists in general civil procedure and the principle of good faith assumingly safeguards fairness in civil transactions, the limitation in application of the estoppel doctrine in the Chinese Contract Law has clear drawbacks. First, from a legislative point of view, the Chinese Contract Law adopted only one aspect of the estoppel doctrine - issue preclusion, while the common law jurisdictions adopt not only issue preclusion, but also promissory estoppel. Equity plays a key role in doing individual justice in common law jurisdictions while the principle of freedom to contract in China tends to indulge promise breaching parties under the Chinese Contract Law. The aforesaid Article 186 of the Chinese Contract Law epitomizes such a drawback. The said law allows a private donor to rescind her donation before the gift is transferred as long as the donation is not for charity purpose or the donation was not notarized. It renders non-charitable gift-giving promises unenforceable at all. The different treatment of the following hypothetical situation helps legal professionals understand how the application of doctrine of promissory estoppel in 5 / 9 common law jurisdictions differs from that of China’s freedom to contract principle. Suppose that an employer makes an oral promise to an employee to pay the employee a specified monthly or annual pension if the employees retires early. If the employee then subsequently retires based on a reliance on the employer's promise, under the promissory estoppel doctrine of the U.S. law, the employer could be legally estopped from not delivering on his promise to make the specified retirement payments. However, under the Chinese Contract Law, such gift or promise is unlikely enforceable because the employer is entitled to rescind her or his donation before delivering the gift. After resignation, the employee could end up unemployed with little income under relevant laws beyond the Chinese Contract Law, such as the Chinese Labor Contract Law. This contrast sheds light on how remedies for contract breach differ under the U.S. and Chinese jurisdictions. Second, from an enforcement point of view, an owner’s property right always prevails over the right over contractual expectations under China’s contract related laws and regulations, thus rendering enforcement of contractual expectations very difficult in China. In civil law legal traditions, ownership or “dominion” is overwhelmingly regarded as a unitary concept with supremacy. As long as the ownership is not transferred, the title and ownership remain vested in the legal owner, resulting in contractual obligations inferior to the dominion of ownership. In that sense, any promise in conflict with an owner’s proprietary right is not strong enough to prevent the owner from exercising her legal rights. In contrast, under certain circumstances an equitable interest holder can 6 / 9 defeat or challenge the ownership interests in common law jurisdictions. The following story happened in China might well demonstrate how limitation of the estoppel doctrine imbues China with breach of contract and cheating in transactions 5. At their forties, a Chinese couple finally welcomed the birth of their baby boy into their family. Unfortunately their baby boy was later stolen at the age of two. They reported it to the police and tried every means to look for their baby, including advertising a reward of 200,000 yuan (approx. $30,000) in newspapers and on TV channels to who can tip them about their son’s location. Several months later, a man called them and sent them a photo of a boy, which he took trouble to get. The couple immediately recognised their son and promised to pay the reward to the man. With the joint effort of the man and local police, they got back their baby son and a DNA test also confirmed the genealogy. But when they were asked to pay the reward, the couple broke their promise and paid only 20,000 yuan (approx. $3,000) to the man. The man took the money and left. On second thought, the man was not satisfied with the amount and visited the couple demanding the rest of the promised sum. The couple refused to pay. The man stayed in the couple’s apartment alleging that he would not leave until getting his due. One day, a tragedy happened when the man saw no hope of getting the reward. He grabbed the boy and rushed to a balcony of the five-story apartment while threatening to drop the boy to the ground if the reward was not paid in full. The couple renewed their promise and pleaded with him to wait for them to get the money from the 5Hubei Daily, May 6 2005; http://worldlii.austlii.edu.au/au/journals/CanLawRw/2010/5.pdf 7 / 9 bank. The man waited until he heard the siren. He realised that the couple had broken their promise again and he would face penalties for kidnapping. So he jumped off the balcony together with the child, leaving both dead. Under the Chinese Contract Law, the man has little chance at proving the effectiveness of the reward advertisement as a contract and getting the promised reward in court. The court may reason that the couple owns the reward and has a right to rescind the reward as a gift before transferring the ownership of the reward. Furthermore, the couple may argue that they had withdrawn or reduced the amount of the reward when the man fed them information. From the perspective of the estoppel of issue preclusion, the couple could argue that the man’s leaving with 20,000 yuan (approx. $3,000) indicated his implied consent to settle the dispute and forfeit his claim over the remainder of the reward. However, in the writer’s view, the man could have argued that the couple’s offer of the reward and his acceptance should have made an enforceable contract between them. Or the man should have equitable grounds including promissory estoppel for recovering a considerable part of the reward if the case happened in a common law jurisdiction. This tragic case demonstrates the estoppel doctrine’s potential in preventing contract breaches in China. IV. Conclusion To conclude, the estoppel doctrine is much broader than breach of contract defined by the Chinese Contract Law. The promissory estoppel doctrine applies to cases 8 / 9 where no contractual consideration is required or given but detrimental reliance is involved, which is not provided in the Chinese contract law and regulations. The legal reality of China’s contract law enforcement calls for law makers to attach more importance to “equitable considerations” rather than “freedom to contract” or the principle of good faith. Thus this paper argues for the adoption of the estoppel doctrine in a more comprehensive manner to enhance the enforcement of the Chinese Contract Law and protect promise-keeping parties. The doctrine of estoppel, and promissory estoppel in particular, could be written into the Civil Procedure Law and the Contract Law of the PRC or judicial interpretations. 9 / 9