问题 问答题

2010年10月25日,甲公司与乙公司协商成立一个新公司,双方对合同的主要条款达成了一致,草签了合同,但因甲公司的法定代表人没有随身携带公章,因此需要将合同带回公司加盖公章。10月28日,乙公司收到甲公司发来的传真,表示乙公司必须先征用工地并培训工人后,甲公司才能在合同上盖章。于是乙公司出资1000万元,征用了工地并培训工人。11月5日,乙公司又收到了甲公司的传真,甲公司表示,因为投资失误,公司资金紧张,已无力出资成立新公司了,要求终止与乙公司的合作。乙公司向法院起诉。
问:(1)甲公司与乙公司之间的合同是否成立为什么
(2)甲公司应当承担什么责任为什么
(3)乙公司能否要求甲公司赔偿1000万元的损失为什么

答案

参考答案:本题主要考查了合同成立、缔约过失责任的问题。
(1)合同没有成立。因为甲公司没有在合同上加盖公章。我国《合同法》第32条规定,当事人采用合同书形式订立合同的,自双方当事人签字或者盖章时合同成立。本题中甲公司没有在合同书上正式盖章,合同没有成立。
(2)甲公司应当承担缔约过失责任。因为甲公司在合同订立过程中的行为违反了诚实信用原则,对乙公司造成了损害,符合承担缔约过失责任的构成要件。我国《合同法》第42条规定,当事人在订立合同过程中有下列情形之一,给对方造成损失的,应当承担损害赔偿责任:①假借订立合同,恶意进行磋商;②故意隐瞒与订立合同有关的重要事实或者提供虚假情况;③有其他违背诚实信用原则的行为。
(3)可以要求。因为乙公司的损失属于基于对甲公司的合理信赖而产生的利益的损失。属于承担缔约过失责任的赔偿范围。

多项选择题
阅读理解

We can make mistakes at any age. Some mistakes we make are about money. But most mistakes are about people. "Did Jerry really care when I broke up with Helen? "When I got that great job, did Jim really feel good about it, as a friend? Or did he envy (嫉妒) my luck?" "And Paul-why didn't he pick up that he was friendly just because I had a car?" When we look back, doubts like these can make us feel bad. But when we look back, it's too late.
Why do we go wrong about our friends - or our enemies? Sometimes what people say hides their real meaning. And if we don't really listen we miss the feeling behind the words. Suppose someone tells you, “You're a lucky dog." that's being friendly. But "lucky dog"? There's a bit of envy in those words. Maybe he doesn't see it himself. But bringing in the "dog" bit puts you down a little. What he may be saying is that he doesn't think you deserve your luck.                                                                                                                                                                                   
"Just think of all the things you have to be thankful for" is another noise that says one thing and means another. It could mean that the speaker is trying to get you to see your problem as part of your life as a whole. But is he? Wrapped up (包藏) in this phrase is the thought that your problem isn't important. It's telling you to think of all the starving people in the world when you haven't got a date for Saturday night.
How can you tell the real meaning behind someone's words? One way is to take a good look at the person talking. Do his words fit the way he looks? Does what he says agree with the tone of voice? His posture (姿态)? The look in his eyes? Stop and think. The minute you spend thinking about the real meaning of what people to you may save another mistake.
小题1:This passage is mainly about ____.
A.how to interpret what people say
B.what to do when you listen to others talking
C.how to avoid mistakes when you communicate with people
D.why we go wrong with people sometimes
小题2: According to the author, the reason why we go wrong about our friends is that ____
A.we fail to listen carefully when they talkB.we tend to doubt what our friends say
C.people usually state one thing but means another
D.people tend to be annoyed when we check what they say
小题3: In the sentence "Maybe he doesn't see it himself." In the second paragraph, the pronoun “it” refers to _____
A.being friendlyB.a bit of envyC.lucky dogD.your luck
小题4:When we listen to a person talking, the most important thing for us to do is____.
A.notice the way the person is talkingB.take a good look at the person talking
C.mind his lone, his posture and the look in his eyes
D.examine the real meaning of what he says based on his manner, his tone and his posture