国际商法合同法 定义

1、1Chapter 2 The Law of ContractIntroduction to ContractsDefinitionBasic requirements of a contract3. Types of contracts2Facing a Legal ProblemJack offers to pay Simone $10 if she walks across the Golden Gate Bridge. If, without saying a word, Simone walks across the bridge, do she and Jack have a con

2、tract? If Simone tells Jack no and turns and walks away, are there any legal consequences? If no one says anything more, but Barry rather than Simone starts to walk across, do Jack and Barry have a contract? 3Definition of Contract A contract is an agreement based on mutual promises between two or m

3、ore competent parties to do or to refrain from doing some particular thing that is neither illegal nor impossible. Contract a voluntary exchange of promises or commitments that are enforceable in our courts-giving each a legal duty to the other and also the right to seek a remedy for the breach of t

4、he promises/duties .4Parties to a Contract Offeror要约人要约人: The party who makes an offer to enter into a contract.Offeree受要约人受要约人:the Party to whom to enter into a contract is made.Exhibit 2-1 5OfferorOffereeOfferAcceptanceOfferor makes anoffer to the offeree.Offeree has the powerto accept the offeran

5、d create a contract.6Basic RequirementsThe elements of a contractAgreement协议协议 Consideration对价对价Contractual capacity缔约缔约能力能力 Legality合法性合法性 Two defenses to the formation or enforcement of a contractGenuineness of assent同同意的真实意的真实Form形式形式7Types of Contracts (1)Unilateral Contract单务合同VersusVersusBilat

6、eral Contract双务合同A promise for an act (acceptance is the completed performance of the act)A Promise for a promise8Example 2-1 Mai offers to buy Harrys sailboat, moored in San Francisco, upon delivery of the boat to Mais dock in Newport Beach, 300 miles south of San Francisco. Harry rigs the boat and

7、 sets sail. Shortly before his arrival at Newport Beach, Harry receives a message from Mai withdrawing her offer. Does Mais message terminate the offer, or because Harry has begun performing, is the offer irrevocable? 9Types of Contracts (2)Express Contract明示合同 VersusImplied Contract默示合同 Formed by w

8、ords( oral, written or a combination)Formed by the conduct of the parties10Example 2-2 Suppose you need a tax consultant or an accountant to fill out your tax return this year. You look through the Yellow Pages and find both an accountant and a tax consultant at an office in your neighborhood, so yo

9、u drop by to see them. You go into the office and explain your problem, and they tell you what their fees are. 11 Example 2-2(Continued) The next day you return, giving the secretary all the necessary information and documents, such as canceled checks, W-2 forms, and so on. You say nothing expressly

10、 to the secretary. Rather, you walk out the door. Have you entered into an implied-in-fact contract to pay the tax consultant and accountant the usual and reasonable fees for their services? 12Types of Contracts (3)Quasi Contract(Implied by law) 准合同Imposed by law to prevent unjust enrichment13Exampl

11、e 2-3 Larrissa enters into a contract with Pavel, agreeing to work for Pavel for one year. At the end of the year, Larrissa is to be paid $18,000. Larrissa works for ten months and then leaves voluntarily, without cause. Pavel refuses to pay her for the ten months she worked, so Larrissa sues in qua

12、si contract for the value of services rendered. Will the court allow Larrissa to recover her salary for the ten months worked? 14 Dines V. Liberty Mutual Insurance Company 548 N.E.2d 1268 (1990) Appeals Court MassachusettsMini Case 2-1 15On Oct.15, 1985, a stolen trailer stored at Diness facility On

13、 March. 18, 1987, releasing the trailer & suing Liberty to recover $10,400 in storage fees. Refusing to pay the charges and on March 11, 1987 and suing to replevy取回the trailer. Learning the trailer was stored there on Jan 07, 1986 Discovered the owner of the trailer on March 11, 1986 ; giving wr

14、itten notice to Liberty and enclosing an invoice for storage fees computed at $20 per day on March 14, 1986Case BriefingRoger J. Dines Liberty Mutual Insurance Company 16Key question:How should you respond if you are the judge?17The trial court found a quasi-contract/an implied-in-law contract and a

15、warded Dines $5,000, which represented the value of the trailer.Fair or not?The trial courts decisionKey question18Both Parties were not satisfied and appealed. Do the facts and circumstances justify the imposition of an implied-in-law contract?Key question 19 A quasi-contract is an obligation creat

16、ed by law for reasons of justice. The underlying basis for awarding quasi-contract damages is unjust enrichment of one party and unjust detriment to the other party. Here, the property was stored in a safe facility preventing vandalism破坏破坏. Therefore, Liberty benefited from the storage of its proper

17、ty. The court noted that quasi-contract damages are limited to the amount of benefit bestowed给，赠与给，赠与 on the defendant. If Dines were permitted to recover the full amount he had billed, he would have recovered more than the benefit conferred on Liberty.Courts reasoning20The appeals court held that t

18、he facts and circumstances of the case justified the imposition of an implied-in-law contract. Decision:21Types of Contracts (4)Formal Contract正式合同 VersusVersusInformal Contract非正式合同 或简式合同Requires a special form for creation Contracts under seal Recognizances 保证书保证书 Negotiable Instruments流通票据 Letter

19、s of credit信用证Requires no special form for creation (unless required to be in writing)22Types of Contracts (5)Executed Contract已履行的合同VersusExecutory Contract待履行的合同A fully performed contractA contract not fully performed23Example 2-4 Assume you agree to buy ten tons of coal from the Western Coal Company. Western delivers the coal to