Contract Law.ppt

1、2020/8/14,法律英語,1,Lesson Four Contract Law,2020/8/14,法律英語,2,Contract Definition,A contract is basically an agreement between two or more people which creates an obligation to do, or not to do, something. The agreement creates a legal relationship of rights and duties. If the agreement is broken, then

2、 the law provides certain remedies.,2020/8/14,法律英語,3,Three Factors,There are three factors necessary to create a contract: 1) an offer, 2) acceptance, and 3) consideration. One party makes an offer, the second party must accept the offer and there must be consideration exchanged. Consideration has t

3、o be something of value.,2020/8/14,法律英語,4,Example of Contracts,Employment contracts Service Contracts Building Construction Insurance Contracts Contract involving real property Sale of Intangibles(stocks, bonds, patents, copyrights,etc),2020/8/14,法律英語,5,CONTRACT,Contract - an agreement that has lega

4、l effect. 合同是具有法律效力的契約。 It creates obligations for which some sort of legal enforcement will be available if performance is not forthcoming as promised. 它設(shè)立了當(dāng)不按約履行時(shí)，便可由某種法律強(qiáng)制手段保證實(shí)施的義務(wù)。,2020/8/14,法律英語,6,美國合同法,2020/8/14,法律英語,7,TEXT,Contract an agreement between two or more persons. Not merely a shared

5、 belief 不僅僅是共有的想法 A common understanding as to something 而且是對某些未來將要進(jìn)行的事項(xiàng)有共同的理解,2020/8/14,法律英語,8,Mirror Image Rule,In the law of contracts, the mirror image rule, also referred to as an unequivocal and absolute acceptance requirement states that an offer must be accepted exactly without modifications

6、. The offeror is the master of his own offer. An attempt to accept the offer on different terms instead creates a counter-offer, and this constitutes a rejection of the original offer. (Restatement(2d) Contracts 59).,2020/8/14,法律英語,9,Mirror Image Rule,In the United states, this rule has been altered

7、 with respect to merchants dealing in the sale of goods under the Uniform Commercial Code (UCC Section 2-207). In such situations, an acceptance that does not match the terms of the offer is nonetheless effective as long as the material terms are agreed upon.,2020/8/14,法律英語,10,Mirror Image Rule,Exam

8、ple: Larry the T-shirt printer (merchant) offers to make and sell 1,000 yellow T-Shirts with Bring the Ruckus on the back for $100 to Vinny of Vincents Shirt Barn (merchant). Vinny accepts the offer and writes change to Bring da Ruckus on the back of the invoice to Larry. This constitutes acceptance

9、 and the contract will be enforceable in spite of the alteration because the change is immaterial and both are merchants.,2020/8/14,法律英語,11,Mirror Image Rule,The changed or additional terms in the acceptance will become part of an agreement between merchants unless the offer limits acceptance to the

10、 terms of the offer (e.g.,Larry writes: no substitutions), the terms materially alter the offer, or the other party objects to the new terms within a reasonable time. (UCC 2-207 (2)(a)-(c).,2020/8/14,法律英語,12,Mirror Image Rule,When both parties are not merchants but the transaction is covered by the

11、UCC (for example, when Vinny agrees to sell t-shirts to a customer), then any additional terms will be proposals for addition to the contract but will not automatically become a part of the bargain. (UCC 2-207(2).,2020/8/14,法律英語,13,The role of lawyers and judges,1. In creating contracts 在制定合同中的作用； 2

12、.in deciding disputes that may arise with respect to their performance 在裁決履行合同時(shí)可能出現(xiàn)爭議時(shí)的作用； 3.in fashioning appropriate remedies for their breach 在形成對其違約的適當(dāng)補(bǔ)救時(shí)的作用,2020/8/14,法律英語,14,Contract law,Common law Judge-made law 法官定法 Rules distilled from a composite of court decisions in prior cases. 從以前案件的各種

13、法官判決意見中抽取出來的規(guī)則,2020/8/14,法律英語,15,Contract law,Contract law covers the legal implications of a contract. For instance, contract law determines what is and is not consideration, whether a contract was actually intended, if the parties making the contract were legally competent, whether there was fraud

14、 or duress involved, or how a contract is terminated.,2020/8/14,法律英語,16,Contract law,Historically, as common law普通法 Rather than statute 制定法 Exception : “statute of frauds” “欺詐條例”是個(gè)例外,Requires certain contracts to be evidenced by a signed writing 該條例要求某些合同是書面合同。,2020/8/14,法律英語,17,Contract Document,Th

15、e set of papers in which such agreement is set forth. 文件陳述契約的一系列文件。,2020/8/14,法律英語,18,Statute of frauds,Law in every state which requires that certain documents be in writing, such as real property titles and transfers (conveyances), leases for more than a year, wills and some types of contracts. Th

16、e original statute was enacted in England in 1677 to prevent fraudulent title claims.,2020/8/14,法律英語,19,Statute of frauds,The statute of frauds has itself become so overlaid by court decisions that it has more of quality of common law than of a modern statute. 該欺詐條例本身已添加了如此多的法官判決意見，以至于它具有的普通法的品質(zhì)已經(jīng)超過

17、其現(xiàn)代制定法的品質(zhì)。,2020/8/14,法律英語,20,Contract law,Essentially a common law system, except be affected by a remarkable modern statute, the Uniform Commercial Code. 除非受到著名的現(xiàn)代制定法統(tǒng)一商法典的影響，合同法至今還保留著普通法體系。,2020/8/14,法律英語,21,The law of contracts,Legal mechanism for protecting the expectations that arise from the m

18、aking of agreements for the future exchange of various types of performance. 合同法是保護(hù)預(yù)期的法律機(jī)制，該預(yù)期產(chǎn)生于就未來交易各類履行而制定的契約。,2020/8/14,法律英語,22,Source /authority法律淵源,以前的司法判決成文法法令,勸導(dǎo)性法源 法學(xué)家的解釋美國法學(xué)會(huì)的法律注釋匯編,2020/8/14,法律英語,23,首要法源,2020/8/14,法律英語,24,What are Restatements of the Law法律注釋匯編,Restatements are secondary s

19、ources that seek to restate the legal rules that constitute the common law in a particular area. They are written by the American Law Institute (ALI), a prestigious legal organization composed of noted professors, judges and lawyers. The ALI has completed Restatements in 15 areas of law including To

20、rts, Contracts, Property, Conflict of Laws, Foreign Relations Law, and Products Liability.,2020/8/14,法律英語,25,The Restatement of Contracts,合同法注釋匯編 The first and most successful “restatement” Acceptance and use by the bench and bar Adopted by ALI in 1932.,2020/8/14,法律英語,26,American Law Institute,Forme

21、d in 1923. Preparation and promulgation of what purported to be accurate and authoritative summaries of the rules of common law in various fields 美國法律協(xié)會(huì)準(zhǔn)備和發(fā)布各領(lǐng)域精確的權(quán)威的普通法規(guī)則匯編。,Restatement注釋匯編,2020/8/14,法律英語,27,American Law Institute,The American Law Institute(ALI) was established in 1923 to define, s

22、ummarize, or restate existing common law. Between 1923 and 1944, Restatements were adopted for the law of agency, conflict of laws, contracts, judgments, property, restitution, security, torts, and trusts.,2020/8/14,法律英語,28,The Restatement,Consists of “black-letter” statements of the “general rule”

23、關(guān)于“一般規(guī)則”的“黑體字”陳述 Supported with at least some commentary and illustration 至少有幾個(gè)注釋和例證作補(bǔ)充 Dont have the force of law 沒有法律效力,2020/8/14,法律英語,29,The Restatements,Secondary authority 次要法源 Remarkably persuasive 非常有說服力 A court often justify its decision by simply citing and quoting The Restatements rule on

24、a given point. 法院經(jīng)常通過援引和引用注釋匯編的原則來證明自己在某一案例中判決的正確性。,2020/8/14,法律英語,30,In 1962, ALI began to prepare a revised of its Restatement,The Restatement (second) of contracts was adopted in 1979. 與第一版比，第二版更強(qiáng)調(diào)多樣化和靈活性，建議要給予法官更多的自由裁決權(quán)。,A freer rein for judicial discretion,2020/8/14,法律英語,31,Have clearly had a p

25、owerful effect in shaping judicial views of what the common law of contract ought to be. 合同法注釋匯編在有關(guān)合同的普通法應(yīng)該是怎么樣的這一司法觀念形成方面有強(qiáng)力的作用。,The Restatement of Contracts,2020/8/14,法律英語,32,Secondary authority,2020/8/14,法律英語,33,Authors of these works,Have sought to clarify the law, to propose solutions for unsol

26、ved issues, and in some cases to argue for legal change. 這些論著的作者們試圖闡明法律，為尚未解決的問題提出解決方案，有時(shí)就法律改革進(jìn)行熱烈而有效的爭論。,2020/8/14,法律英語,34,Such legal commentary has been extremely influential in shaping the course of the common law of contract. 這些法律評論大大地影響著有關(guān)合同的普通法的發(fā)展方向。,2020/8/14,法律英語,35,Professional words and te

27、rms,Uniform Commercial Code Consumer Protection Statutes Labor Law Insurance Law Offer， acceptance, consideration Contract performance Contract interpretation,2020/8/14,法律英語,36,Breach Remedy damages Expectation damages Tangible ,Intangible property Real property, personal property,2020/8/14,法律英語,37,

28、Ownership of property Legal mechanism Fraud Primary source, Secondary source Restatements of the Law,2020/8/14,法律英語,38,“statute of frauds” Uniform Commercial Code American Law Institute The Restatement of Contracts,2020/8/14,法律英語,39,Exercises,Case Discussion Fiege v. Boehm Case Brief Fiege v. Boehm,

29、 210 Md. 352, 123 A.2d 316 (Md. 1956). Facts: Boehm (P) became pregnant and believed in good faith that Fiege (D) was the father. Fiege promised to pay Boehm for the birth expenses and make support payments for the raising of the child as long as Boehm would not institute criminal bastary proceeding

30、s against him. D made payments undenr the agreement but stopped when blood tests revealed that he was not the father. P initiated criminal bastardy proceedings and D was acquitted because the blood tests revealed that he could not have been the father. P then sued to enforce the agreement for suppor

31、t in civil court. The jury found that D was liable to P and P appealed. Issue: Can forbearance from asserting a good faith legal claim be sufficient to constitute valid consideration?,2020/8/14,法律英語,40,Holding and Rule: Yes. Forbearance from asserting a good faith legal claim can be valid considerat

32、ion. Forbearance from asserting a legal claim known to be invalid is not valuable consideration. To be valid consideration, the claimant must subjectively believe in good faith that the claim is valid, and Ps belief must be reasonable from the standpoint of a reasonable person in the position of the

33、 claimant. Disposition: Affirmed. Notes: The majority rule requires a good faith belief as determined by an objective reasonable person standard. The minority rule allows a good faith subjective belief to satisfy the requirements of consideration even if that belief is not reasonable.,2020/8/14,法律英語

34、,41,Hamer v. Sidway Case Brief Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256 (N.Y. 1891). Facts: William E. Story and his nephew, William E. Story II, agreed that the uncle would pay his nephew $5000 if the nephew would refrain from drinking, using tobacco, swearing, and playing cards and billiards for

35、 money until he turned 21. When the nephew turned 21 his uncle sent him a letter that indicated that the nephew had earned the $5000 and that he would hold the money with interest until the nephew became capable of taking care of it responsibly. The nephew accepted the terms. The uncle died twelve y

36、ears later without having transferred the funds to his nephew. The nephew assigned the funds to Louisa Hamer (P) who brought suit against the executor of the uncles estate, Franklin Sidway (D). At trial, judgment was entered in Hamers favor which was reversed on appeal in Sidways favor. Hamer appeal

37、ed. Issue: Is forbearance from permissible legal conduct sufficient consideration to create a valid and enforceable contract?,2020/8/14,法律英語,42,Holding and Rule: Yes. The mere abstention from a permissible legal conduct is sufficient consideration to make a promise based on that forbearance a valid contract. Consideration is not measured as a benefit to the promisor. When an offer is ambiguous regarding whether acceptance should be in the form of performance or an exchange of promises, determining if the offeror was indifferent to whether acceptance be by performance or pr