法律英語講座ppt

1、法律英語講座法律英語講座ppt CONTRACT LAW The law of contract has it identity firmly in place in the UK. Contract law first came about in the thirteenth century and most of the developed western world derives its laws involving contract from the British system. Hong Kong, Malaysia, Pak-istan, India and now China

2、 all use British Law of Contract. Contract law is based on the principal of PRECEDENT What is PRECEDENT? The eighteenth century is known as the golden years of con-tract as it is where the contract as we know it derives from.1 DEFINITION: An agreement, giving rise to obligations which are enforced o

3、r recognized by law. The factor which distinguishes contractual from other legal obligations is that they are based on the agre-ement of the contracting parties. A contract arises when there is intention by 2 or more people to enter into an agreement. Lord Denning: Gibson v Manchester City Council 1

4、979 All ER 972 Look at the correspondence as a whole and at the conduct of the parties and see there from whether the parties have come to an agreement on everything that was material.2 WHAT IS THIS?Subjective?This approach was rejected by the Appeal Court in favour of the more traditional approach

5、which is to find the objective intention of the parties when they entered into the agreement by reducing the contract into 1)offer 2)counter offer3)acceptance4)revocation5)RejectionLord Diplock in the same case went with the above method and rejected Dennings argument. Diplock sees separating everyt

6、hing into manageable blocks as an easy way of objectively finding out the truth.However in difficult cases where this may not be possible the courts may well accept Dennings view.3 OFFERAn offer an expression of a willingness to contract on certain terms made with the intention that a binding agreem

7、ent will exist once that offer is accepted. Carlill v Carbolic Smoke Ball Co 1892 2 QB 484Company introduced a smoke ball onto the market with the promise thatThey would pay 100 pounds to anyone who contracted influenza after using the smoke ball.The plaintiff used the smoke ball and then immediatel

8、y caught influe-nza and sued for the 100 pounds.The defendant refuted saying that it was impossible to make an offer to the whole world4 Bowen LJ gave the dissenting judgment in the Appeal Court. Although the contract is offered to the whole world which could be a difficult proposition, the contract

9、 is made with that limited portion of the public who come forward and perform the condition on the faith of the advertisement. In the Carlill case the defendants tried to say that “ the plaintiff had not accepted the offer therefore there was no consensus of agreement.”5Again this was rejected by th

10、e court and the subject the offer may arise in two ways1) bilateral2) unilateral A bilateral offer arises where one party agrees to do something for another in return for a promise made by the offeree. Both parties are agreeing to do something in return for a promise. EG: If A promises to sell his c

11、ar in return for B promising to pay him 500 pounds. The vast majority of offers are this type A unilateral offer where one party promises to pay for the act of anot-her. That is a conditional promise. The acceptance occurs when the person does the act as in Carlill case.6INVITATION TO TREAT The main

12、 occurrence of this is to be found in goods for sale. Are Goods displayed in a shop window or within the shop itself an offer? The issue becomes that when someone walks into a shop they are accepting a binding offer to buy? Or Is it an invitation to accept the offer and the customer then either acce

13、pts or declines the offer?7General Rule Fisher v Bell 1961 1 QB 394 A price marked flick knife was displayed for sale in a shop window. The seller was prosecuted under the (now repealed) Offensive Weapons Act 1961 which made it an offer to offer to sell such items and was aquitted. Lord Parker “ It

14、is clear according to the ordinary law of contract that the display of an article in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.8 Taylor v Laird (1856) 1 H & N 266, 25 LJ ex 329 The captain of a ship accepted

15、 a contract to sail a cargo down the NIGER river but sailed half way then gave up and brought the ship back. He then wanted payment for the time he spent. The court rejected this and said he had not fulfilled the condi-tions of the contract and had not communicated the desire to return the boat to t

16、he owners so there was no acceptance of the new offer.9ACCEPTANCE Definition: A final unqualified acceptance as an expression of intent to all the terms of the offer. Taylor v Laird Acceptance must be unequivocal and unconditional.10 Tinn V Hoffman and Co (1873) 29 LT 271 Blackburn J: When a contrac

17、t is made between two parties there is a promise made by one in consideration of the promise made by the other; there are 2 assenting minds. There is an exch- ange of promises. The promise or offer made on each side in ignorance of the promise or offer made on the other side then neither of them can

18、 be construed as accepting the offer.11 In this case 2 offers crossed in the post X offers to buy a car from Y for 5000 pounds At the same time Y offers to sell his car for 5000 pounds Therefore no contract exists because subjectively they agree but objectively there is no indication of agreement be

19、cause the communication has not been accepted as an offer.12COMMUNICATION Holwell Securities Ltd v Hughes 1974 1 WLR 155 Houghton J “There must be some form of objective or external manifes- tation of acceptance which must be communicated to the offeror.” Therefore silence does not constitute as acc

20、eptance of an offer in any way shape or form.13Felthouse v Bindley (1982) 11 CBNS 869 Based on an action in tort.Defendant was selling farming stock at auction for John Felthouse. A man was interested in buying a horse but there was misunderstanding whether the price was in pounds or guineas.He wrot

21、e to the auctioneer stating“ If I hear no more about it I will expect th price to be in guineas”There was no reply but Hughes instructed that the horse be removed from the auction. “ Silence is usually equivicaql as to consent and the letter did not render the auctioneers failure to reply unequivoca

22、lly since failure to reply to letters is a common human weakness”14CONSIDERATION Is one of the principal ingredients of an enforceable contract. Definition: A valuable consideration in the sense of the law, may consist either in some right, interest, profit or benefit accruing to one party, or some

23、forebearance, detriment, loss or responsibility given, suffered or undertaken by another.15 This approach to defining consideration develops deficiencies when seen in contracts based solely on an exchange of promises. If PARTY A promises to buy a car from B for $2000 and B on his part promises to se

24、ll the car to A for $2000 there is clearly a binding contract which can be enforced if one party should not to carry on. Until the date for performance arrives there is no benefit or detriment undertaken by either party, the consid-eration within the contract presenting itself via the exchange of pr

25、omise made by the parties. The definition is therefore meaningless in this context.16 he approach today comes from Sir Frederick Pollock (1950) in the Principles of Contract An act or forebearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and th

26、e promise thus given for value is enforceable. This definition was approved in the House of Lords17 Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd 1915 AC 847 This is now regarded as being more representative of the doctrine of consideration in the modern commercial contract than the 19c concep

27、t of benefit and detriment. The sub principles may be seen as 1) Consideration must be executed or executory but not past 2)Consideration must move from the promisee but not necessarily to the promisor; 3)Consideration must be sufficient though not necessarily adequate.18PAST CONSIDERATIONThis metho

28、d reflects the methods by which the plaintiff purchases the promise of the defendant. In executory consideration the form of the consideration arises by way of a promise by the defendant in return by a promise by the plaintiff. This is an agreement which will take place in the future.EGA promises to

29、 buy Bs car on credit, delivery to take place next week. Here both agree to a future deal so the consideration is executory.Executed consideration occurs when one of the parties has done all he can do under the contract, that is, he has executed his side of the bargain. The other parties considerati

30、on which is still unperformed remains executory in that it remains to be completed in the future.19 Past consideration is no consideration. A paints the outside of Bs house as a voluntary act while B is on holiday. When B returns from holiday he is pleasantly surprised by As kindness and promises to

31、 pay A $100. If B refuses to pay can A claim? The claim will fail since As consideration of painting the house is past in relation of the promise to pay and past consideration is no consideration. Re McArdle 1951 CH 669 Modern authority on past consideration.20EXCEPTIONS TO PAST CONSIDERATION RULELa

32、mpleigh v Braithwait (1615) Hob 105Braithwait killed another man and asked Lampleigh to obtain a pardon for him from the King. Lampleigh went to considerable expense to secure the pardon who subsequently promised to pay 100 pounds. Braithwait the refused to pay and was sued. Clearly on the basis of

33、the rule on PAST CONSIDERATION Lampleighs efforts were in the past in relation to the promise. The court held that there was an implied promise to reward and reimburse Lampleigh for his efforst.Thus the previous request and subsequent promise were part of the same transaction and as such were enforc

34、eable.This clearly shows that the courts are trying their best to be fair and reasonable.21 CONSIDATION MUST MOVE FROM THE PROMISEE TO THE PROMISOR THOUGH NOT NECESSARILY TO THE PROMISOR. Price v Easton (1833) 4 B & Ad 433 Price owed the plaintiff 13 pounds and agreed to work for the defendant w

35、ho promised to pay Prices wages to the plaintiff but then failed to do so. It was held that the plaintiff could not recover the money from the defendant as no consideration had moved from the plaintiff.22 CONSIDERATION MUST BE SUFFICIENT BUT NOT NECESSARILY ADEQUATE.The consideration must have some

36、value namely economic value. Adequacy: Describes the reciprocal elements of the bargain, quid pro quo of the contract. This is very important in the contract as it decides if the individual has made a good sale or purchase in economic terms.Sufficiency: This describes not the economic value of the c

37、onsidera-tion but whether the consideration can exist as such in the eyes of the law as supporting a simple contract.Main case23 Chappell & Co Ltd v Nestle Co Ltd 1960 AC 87 A contracting party can stipulate for what consideration he chooses. A peppercorn does not cease to be good consideration

38、if it is established that the promisee does not like pepper and throws away the corn.24 Midland Bank Trust Co Ltd v Green 1981 AC 513 Father had option to sell to son sold to his wife a farm for 500 pounds even though the farm was worth 40,000 pounds. Court of Appeal said that because it was sold at

39、 such an undervalued price could not amount to a sale for moneys worth. House of Lords reversed the decision: The court would not enquire into the adequacy as long as the consideration was real. Thus there was a good contract between the parties. 25INTENTION TO CREATE A LEGAL RELATIONSHIP So we can

40、see that the courts will look very carefully at each situation and then make a judgment based on 3 main factors. 1) It must be JUST and FAIR 2) It must be REASONABLE 3) There must be proximity between the parties.26Merritt v Merritt 1970 1 WLR 1121Husband left home to live with another woman and agr

41、eed in writing to give his wife 40 pounds a month to pay of the mortgage and when finished he would transfer the house into her name.She paid off the mortgage then he refused to transfer the deeds.Court of Appeal: There most certainly was an intention to create a legal relationship and the courts mu

42、st be seen to be fair and just and take every case on its merits. It can only be reasonable to expect this man to honour the agreements he makes with anyone not just his ex wife.27 Donoghue v Stevenson 1932 AC 562 One of the most famous cases in English legal history. It was based on a TORT law issu

43、e of negligence but is used for the law of proximity for all contract law cases. It also defined the DUTY OF CARE principal used in many countries across the world today.28On the evening of Sunday 26 August 1928 May Donoghue, ne MAlister, boarded a tram in Glasgow for the thirty-minute journey to Pa

44、isley. At around ten minutes to nine, she and a friend took their seats in the Wellmeadow Caf in the towns Wellmeadow Place. They were approached by the caf owner, Francis Minchella, and Donoghues friend ordered and paid for a pear and ice and an ice- cream drink. The owner brought the order and pou

45、red part of a bottle of ginger beer into a tumbler containing ice cream. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. It was claimed that the remains of a snail in a state of decomposition dropped out of the bottle in

46、to the tumbler. Donoghue later complained of stomach pain and her doctor diagnosed her as having gastroenteritis and being in a state of severe shock.29 On 9 April 1929, Donoghue brought an action against David Stevenson, an aerated water manufacturer in Paisley, in which she claimed 500 as damages

47、for injuries sustained by her through drinking ginger beer which had been manufactured by him. The case was ultimately settled out of court and the facts were never established in a court of law.30 The identity of Donoghues friend is unknown, but that person is referred to as she in the case reports

48、 (including the first paragraph of the judgment of Lord MacMillan in the House of Lords). Other factual uncertainties include whether the animal (if it existed) was a snail or a slug; whether the bottle contained ginger beer or some other beverage (as ginger in Glaswegian and West of Scotland parlan

49、ce refereed to any fizzy drink) and whether the drink was part of an ice-cream soda.31 Legal background In common law, a person can claim damages from another person where that other person owed them a duty of care and harmed them through their negligent action. This concept existed prior to Donoghu

50、e, but it was generally held that a duty of care was only owed in very specific circumstances, such as where a contract existed between two parties or where a manufacturer was making inherently dangerous products or was acting fraudulently.32 There was no contractual relationship between Donoghue th

51、e drinks manufacturer or even, as Donoghue had not ordered or paid for the drink herself, between Donoghue and the caf owner. Although there was a contractual relationship between the caf owner and Donoghues friend, the friend had not been harmed by the ginger beer. As ginger beer was not a dangerou

52、s product, and the manufacturer had not fraudulently misrepresented it, the case also fell outside the scope of the established cases on product liability. On the face of it, the law therefore did not provide a remedy for Donoghue.33 Donoghues solicitor, Walter Leechman of W G Leechman & Co in G

53、lasgows West George Street, had already tried to establish liability against aerated water manufacturer A. G. Barr when a dead mouse was alleged to have found its way into a bottle of its ginger beer. However, an action for damages was rejected by the Inner House of the Court of Session, when the ap

54、peal court judges ruled that there was no legal authority allowing such an action (Mullen v A.G. Barr & Co. 1929 S.C. 461).34 Progress of the case The writ lodged in the Court of Session on April 1929 alleged that May Donoghue had become ill with nervous shock and gastroenteritis after drinking

55、part of the contents of an opaque bottle of ginger beer, and David Stevenson, the manufacturer, owed her a duty to take reasonable care that ginger beer he manufactured, bottled, labelled and sealed, and invited her to buy, did not contain substances likely to cause her injury. Donoghue claimed dama

56、ges of 500.35 Counsel for the manufacturer denied that any such duty was owed, but in June 1930 the judge, Lord Moncrieff, ruled there was a case to answer. Stevenson appealed the ruling on a number of legal grounds, and the judges of the Inner House granted the appeal in November 1930, dismissing D

57、onoghues claim as having no legal basis following the authority of their earlier decision in Mullen v AG Barr. One of the judges said that the only difference between Donoghues case and the mouse cases was the difference between a rodent and a gastropod and in Scots law that meant no difference at a

58、ll.36 Donoghue was allowed to appeal her case to the House of Lords but, whilst her legal team had agreed to provide their services free, she was unable to put up the security needed to ensure the other sides costs were met should she lose in the Lords. However, as such security would not be require

59、d if she could gain the status of a pauper, she petitioned the House of Lords, saying, I am very poor and am not worth in all the world the sum of five pounds, my wearing apparel and the subject matter of the said appeal. A certificate of poverty signed by a minister and two elders of her church was

60、 attached to the petition, and the House of Lords agreed to grant her pauper status.37 Nine months after her petition was granted, Lords Buckmaster, Atkin, Tomlin, Thankerton and MacMillan heard counsels arguments. Donoghues counsel - George Morton KC and W. R. Milligan argued that a manufacturer who puts a product i