英美合同侵权法

1、Case discussion1. Mr. X is regular customer of Mr. Y, the owner of a bookstore. One morning, Mr. X went into Mr. Ys bookstore, looked at some books, and picked up a book. Because Mr. X forgot bringing money with him, he promised Mr. Y that he would pay for the book the next day. Mr. Y agreed. Is the

2、re a contract? If so, classify it within the types in this chapter.(Express contract; unilateral contract; valid contract; executor contract)2. Mr. X called a neighbor and offered to sell her his computer next week for 200 dollars. If his neighbor wished to accept, she could call back to him. The ne

3、xt morning, she called back and said she was willing to buy the computer. Is the contract formed bilateral or unilateral? Why? Bilateral contract, because each of the contracting parties makes a promise.3. While Mr. X was gardening in Mr. Ys yard, Mr. Y was reading a book at home. Then Mr. Y stood b

4、y the window and watched Mr. X do the work once in a while. When Mr. X had finished the work. Mr. X asked Mr. Y to pay for his work. Do you think there is an implied or a quasi contract between them? Why? Implied contract 课本7 Silence is not an effective acceptance unless an offeree takes the benefit

5、 of the offered services.1.If you offer to sell a friend a computer worth1000 dollars for 100dollars, your friend accepts the offer. Is there a binding agreement between you? Yes.课本532. Suppose Mr. X orally offered to sell Mr. Y a used car for 5000 dollars. Two days later Mr. X notified Mr. Y that t

6、he car was no longer for sale. In that case, could Mr. X end the offer? Yes. Oral contract课本100页3. Assume Mr. X sent a letter to Mr. Y offering to sell a bicycle for 50 dollars. Mr. Y sent a return letter to Mr. X rejecting the offer. A week later Mr. Y decided to accept the offer. Could Mr. Y accep

7、t the bicycle? No, the offer is terminated because of rejecting by the offeree Mr.Y. it is a new offer , Mr .Y is offeror; Mr.X is offeree. So Acceptance Must Be Accepted Only by the Offeree Mr.X.4. Suppose a man helped you pull your car out of ditch. After that, you promised to give him 30 dollars

8、for the help, and the man agreed. Would the promise be binding? No. Preexisting obligations. A promise to do something that one is already obligated.not constitute consideration.课本66页Case discussion:1.Suppose you were induced to buy a second-hand car. Before you bought the car the dealer stated that

9、 the engine had recently been rebuilt. Actually it had not. After you bought the car, you had engine troubles and the car stopped running. If you wanted to break the contract, what defense can you have? Misrepresentation. It is the creation of an impression in the mind of another person which is not

10、 in accord with the actual acts of the situation.当事人在订立合同的过程中对另一方所作出的与事实不符的陈述。 l (1)要约的概念、构成要件（definition of offer elements of offer）An offer to contract is a manifestation of intention to be presently bound by a series of definite and specific term, which is communicated to the offeree and creates

11、power in the offeree to accept. 1.Serious Intention意图严肃To a reasonable person, the offeror did in fact intend to make an offer and to be presently bound by it. 在通情达理的人看来， 要约人必须严肃认真地向受要约人发出要要约，并且受其约束2.Definiteness明确性An effective offer must have definite terms.有效要约条款必须明确。 3.communication送达l (2)Termina

12、tion of the Offer要约终止 1. Lapse of Time时效经过 An offer terminated automatically by law when the definite period of time or a reasonable time has passed. 经过特定的一段时间或者合理时间后，要约自动终止。2.Revocation by the Offeror要约人撤销 The offeror has the legal right to withdraw an offer before it is accepted.要约人有权在要约被承诺前撤销要约。

13、3. Rejection by the Offeree受要约人拒绝 The offer may be rejected by the offeree, in which case the offer is terminated. including a counteroffer and a conditional acceptance 包括反要约和有条件的承诺 4. Death or some legal incapacity当事人死亡或丧失缔约能力 An offer terminates when either party dies or becomes insane before acce

14、ptance.5. Destruction of the proposed subject matter合同标的物灭失l (3)承诺的概念、构成要件definition:the offerees manifestation of intention to be presently bound by the terms contained in the offer.承诺是受要约人做出的立即受要约约束的意思表示。1.Acceptance Must Be Accepted Only by the Offeree承诺只能由受要约人做出。2.Acceptance Must Agree with Offe

15、r 承诺必须与要约一致3. Acceptance Must Be Communicated to the Offeror承诺必须传达给要约人 l (4)抗辩事由（defenses）1.Misrepresentation不正当说明 v definition: It is the creation of an impression in the mind of another person which is not in accord with the actual acts of the situation.当事人在订立合同的过程中对另一方所作出的与事实不符的陈述。 2. Mistake错误 v

16、 definition:Mistatke is a belief that is not accord with the facts.当事人对构成交易的基础事实在认识上发生的错误。 3、Duress 胁迫 v definition: It means the use of threats to bodily or other harm which are used to overcome a persons free will and induce the person to enter a contract through fear or force.4. Undue Influence不正

17、当影响 v definition: it is the use of a confidential relationship, in which one person owes another a duty to look out for the latter persons interests, and where the duty-bound person uses this position for personal benefit at the expense of the person to whom the duty is owed.5. Capacity of Parties缔约

18、能力 v definition: Capacity is the ability to perform legally valid acts.6. Illegality违法性 v A contract is illegal if it violates law or is contrary to the public policy or interest. 合同违法或违反公共政策或利益。v 7. Statute of Frauds反欺诈法 v It requires that certain types of contracts must be in writing signed by the

19、 party to be bound and are not enforceable unless they are evidenced by such a writing.v 8. Oral Evidence Rule口头证据规则 l （5） damages损害赔偿金 v 1.compensatory damages 补偿性损害赔偿金 v 2.consequential damages间接损害赔偿金(lost profits )v 3.liquidated damages约定违约金 v 4.penalty damages惩罚性损害赔偿金 v 5.nominal damages象征性损害赔偿金

20、 l （6）Tort and Crime侵权和犯罪Private law(against injure party) Public law(against the society) the injured party bring an action The state prosecutes To protect the individual interests To protect the public Damages or specific performance or injunction Imprison or fines Preponderance of the evidence Pr

21、ove beyond reasonable doubt l Tort and breach of contract侵权和违约Violation of one persons legal duty Violation of self-imposed duty To place the palintiff as if the tort had not occured To place the plaintiff as if the contract had been performed damages or injunction Damages or injunction or specific

22、performance l （7）Classifications of Torts侵权的分类 1. intentional torts故意侵权 intention: the wrongdoer wanted to harm someone or knew that what did would result in harm.侵权人希望或者确信其行为会给他人造成损害。 2. negligence 过失侵权 It is the unintentional causing of harm that could have been prevented if the defendant had acte

23、d as a reasonable and prudent person 3. strict liability tort严格责任侵权 l （8）Battery殴打的概念、构成要件 It is the intentional, unprivileged and either harmful or offensive contract with the person of another. 故意地对他人的人身进行有害的或冒犯性的接触。 Elements: （1）An act by the defendant which brings about harmful or offensive cont

24、act to the plaintiffs person or effects伤害性或冒犯性的接触他人的行为 （2）The defendants intent to make such a contact接触的故意 （3）The causation between the defendants act and the offensive or harmful touching of the plaintiffs person or effects因果关系 l （9）Assault威吓的概念、构成要件 It is an act by the defendant creating a reason

25、able apprehension in the plaintiff for immediate harmful or offensive contact to the plaintiffs person.通过一定的行为对他人进行恫吓，从而引起其对于即将来到的殴打行为产生合理的警觉 Elements: (1)Intent to cause apprehension of contact 有使人产生警觉的故意 (2)Present apparent ability of the defendant to cause contact有立即进行殴打的实际能力 threatening gesture

26、by the defendant有实际威胁行为 (3)Well-grounded apprehension of imminent unconsented contact.有使人产生合理警觉 l （10）侵犯动产与侵占动产的区别 （1）Trespass to chattels Infringes a possessors interest in freedom from minor intentional interference with personal property. 故意地对他人动产权益 的进行侵犯(2)It occurs when a person intentionally exercises exclusive control over the personal property of another without permission侵权人未经允许，故意行使对他人动产