法律英语课件-CONTRACT LAW (2017)合同法

1、 CONTRACT LAW Lesson One Introduction Lesson Two Performance and Non-Performance Lesson Three Contract Remedies and Computation of Damages Lesson Four Rights of Third PartiesLesson One Introduction Case: the Cotton Cases of 1973 “The critical issue is whether there was an enforceable promise to buy

2、for each promise to sell. We believe there was.”contracts I. Contract Nature Contractand contract law A contract is a promise or a set of promises which the law will protect and enforce. The common law countries stress the contract as a kind of “promise,” the civil law countries concern on the “agre

3、ement between the parties.” A promise or set of promises where the law gives a remedy when breached, and the performance of which the law recognizes as a duty. Contract law Contract law is most obviously the law relating to agreements or promises. The bulk of American contract law is judge-made case

4、 law. The Uniform Commercial Code The Restatement of Contracts 合同法注释汇编合同法注释汇编 合同法重述合同法重述 2. Formation of Contract offer and acceptance Offeror and Offeree Meeting of the minds Mutual assent Manifestation of willingness “mirror image” “mailbox rule” Offer and Acceptance Consideration No Defenses to F

5、ormation Offer and AcceptanceWhy important to have offer and acceptance rules? Helps court decide whether negotiations or an actual bargain Ensures parties agreed on a minimum quantity of terms Gives court a reliable method to determine content of deal Legal Significance of Offer Creates power of ac

6、ceptance in offeree Offeree can conclude a deal and bind offeror by proper assentTermination of OfferTermination by Offeree Rejection Not terminated by inquiries or request for different terms Counter-offer Expiration of time period If no time for acceptance, the offer is deemed a reasonable time de

7、pending on circumstancesAcceptanceWho may accept? Person to whom offer was addressed or if in the class of persons to whom addressedAcceptance must be unequivocal. Common Law: Mirror image rule acceptance must mirror terms of offer Commercial Law: Any acceptance indicating intention to enter contrac

8、t is valid UNLESS made conditioned on acceptance of new terms 3.Necessary Elements of a Contract (1) There must be an agreement between the parties; (2)There must be consideration to support a contractual claim; (3)There must be two or more parties who have the legal capacity to contract; (4) Subjec

9、t matter of the contract must be lawful; (5) There must be proper form for a contract.Consideration Consideration A benefit of legal value which must be bargained for between the parties.Elements of Consideration1. Bargain must exchange somethingGift no bargain, no consideration2. Legal Valuea. Gene

10、ral rule adequacy or fairness of consideration not examinedb. Majority view party must incur detriment by doing something not legally obligated to do or refraining to refraining from something he has a right to do. 4. Classification of a Contract -forms (1)bilateral contract (2)unilateral contract -

11、expression (1) an express contract (2) implied-in law contract(quasi-contracts) -legal effects (1) valid contract (2)void contract (3)voidable contract Express or Implied1. Express written2. Implied from conduct, past relationships Bilateral or Unilateral1. Bilateral - exchange of promises2. Unilate

12、ral exchange of an act for a promise Void or Voidable and Unenforceable1. Void no legal effect from beginning2. Voidable party may elect to avoid or ratify3. Unenforceable otherwise valid but for which a defense exists Enforceable contract Unenforceable contract defense5.Grounds for Nonperformance o

13、f Contracts (1) Mistake (2) Fraud (3) Lack of Capacity : Minors and Mental Incapacity(4)Duress and Undue Influence(5)Misrepresentation(6) Unconscionability(7)Illegal Contracts and Contracts Against Public PolicySummary To keep two points in mind: (1)a contract contains a present undertaking or commi

14、tment concerning future conduct of the parties, and (2)the law sanctions the commitment by putting its legal machinery behind it.Lesson Two Performance and Non-Performance 1.Rules: When parties make a bilateral contract, they exchange promises in the expectation of a subsequent exchange of performan

15、ce The principal goal of the rules applicable to the performance stage of such contracts is to protect that expectation against a possible failure of the other party to perform. 2.Problems: 1)Refuse o perform 2)Perform in an unsatisfactory manner 3.T o develop rules to the injured party, In addition

16、 to an claim for damages, the right to suspend its own performance and ultimately to refuse to perform if the other party fails to perform. 4.Conditions Two distinct effects: (1)to suspend performance (2)to terminate the contract Conditions -by time Conditions precedent (先决条件）先决条件） Concurrent condit

17、ions （共时条件）（共时条件） Conditions subsequent （后续条件）（后续条件） Conditions-by the way they are created A. Express conditions B.Constructive conditions Actual failure of an express or constructive conditions 1)hindrance, prevention or noncooperation 2)waiver or estoppel 3) impossibility or commercial frustratio

18、n禁止反言原则禁止反言原则”(equitable estoppel) 是英美法系国家的一般契约理论，其基本内涵是英美法系国家的一般契约理论，其基本内涵是是“My word is my bond”言行一致，不得出言行一致，不得出尔反尔。英美法系国家传统的契约理论是：合同成尔反尔。英美法系国家传统的契约理论是：合同成立、变更均须有对价立、变更均须有对价(consideration)，才能产生强，才能产生强制执行之效力。可是实践中大量存在着这样的现象制执行之效力。可是实践中大量存在着这样的现象，某人许诺赠与他人物品或答应他人无偿为其做某，某人许诺赠与他人物品或答应他人无偿为其做某事，但不久又反悔而使

19、受诺人遭受损失。受诺人受事，但不久又反悔而使受诺人遭受损失。受诺人受到损失后却无法律依据阻却权利人权利的行使。到损失后却无法律依据阻却权利人权利的行使。 20世纪世纪40年代以前，英美法系国家的法官解决年代以前，英美法系国家的法官解决这一问题的方法，使法律天平平衡的砝码，一是在这一问题的方法，使法律天平平衡的砝码，一是在衡平法上采用禁反言，再是尽其所能寻找有效的约衡平法上采用禁反言，再是尽其所能寻找有效的约因。这种方法往往产生牵强附会，徒增了人们对法因。这种方法往往产生牵强附会，徒增了人们对法律公正性的怀疑。律公正性的怀疑。 1877年英国法官卡恩斯勋爵年英国法官卡恩斯勋爵(Lord Cair

20、ns) 审理审理 Hughes V.Metropolitan Railway Co.案时就提出了案时就提出了禁止反言的观念，但并未引起人们的重视。直至禁止反言的观念，但并未引起人们的重视。直至1947年，卡恩斯勋爵的观念被英国大法官丹宁年，卡恩斯勋爵的观念被英国大法官丹宁(Lord Denning)传承，并将其确立为一个法律原则。传承，并将其确立为一个法律原则。Parol Evidence Rule Evidence of prior or contemporaneous negotiations or agreements that contradict or vary terms is i

21、nadmissible if written contract is intended as complete and final expression of the parties. Lesson Three Contract Remedies and Computation of Damages I. the American system of contract remedies Not to compel promisors to perform their promises To rely on the promises of others and provide relief to

22、 them in case of a broken promise. II. How do courts encourage promisees to rely on promises? 1. by protecting the expectation the expectation interest 2. by protecting the promisees reliance the reliance interest 3. by granting restitution the restitution interest III. Types of remedies 1.Remedy Le

23、gal remedies A. compensatory damages B. consequential damages C. punitive damages D. nominal damages 2. Equitable remedies A. specific performance B. rescission C. restitutionLesson Four Rights of Third Parties I. Third Party Beneficiary Contracts II. Assignment III. DelegationThe Uniform Commercial

24、 Code 统一商法典统一商法典sales and leasingTransfer of fundsCommercial paperBank deposits and collectionsLetters of creditBulk transfersWarehouse receiptsBills of ladingInvestment securities Secured transactions , etc.Typing the Contract A contract must contain the following information: 1. date 2.names of th

25、e parties 3.purposes of the contract 4.duties and responsibilities of each party 5. consideration for the contract 6.duration 7.signatures of all parties 8.witnesses or notarizaton , if applicableEnglish Contract StructureEnglish Contract Structure1. 封面封面2. 目录目录3. 正文正文4. 附录附录正文正文1.约首约首1）导言）导言2）鉴于条款）

26、鉴于条款3）过渡条款）过渡条款2.本文本文1）通用条款）通用条款2）专有条款）专有条款3.约尾约尾1）签名）签名2）盖章）盖章通用条款通用条款定义及解释条款定义及解释条款责任及义务条款责任及义务条款违约条款违约条款声明及保证条款声明及保证条款保密条款保密条款转让条款转让条款知识产权条款知识产权条款赔偿条款赔偿条款税收条款税收条款期限与终止条款期限与终止条款保险条款保险条款不可抗力条款不可抗力条款管辖法与争议条款管辖法与争议条款完整协议与可分割性条款完整协议与可分割性条款LICENSE AGREEMENT THIS AGREEMENT , entered into (place)on the 1

27、st day of January, 1998 by between ABC CORPORATION, a of _, and having its principal office at _, corporation organized and existing under the law of _, and having its principal office at_, (hereinafter referred to as XYZ) (Introduction)WITNESSTH(RECITAL) WHEREAS XYZ Has developed certain processes

28、, methods and techniques applied in manufacturing the Licensed Products hereinafter defined; and WHEREAS_, NOW, THEREFORE, in consideration of the premises and the mutual conveniences, the Licensee and Licensor, through consultation, agree to enter into this contract under the terms and conditions s

29、et forth as follows: (operative part)NOW IT IS HEREBY AGREED as follows: 1._, 2._, 3._. IN WINESS WHEROF the parties hereto have on the day and year first above written caused these presents to be executed and delivered in their behalf and in their corporate names respectively by their proper office

30、rs hereunder duly authorized and their respective corporate seals to be hereto attached by like authority. SIGNED by CONTRACTOR In the presence of:SIGNED by For and behalf of ABC CORPORATIONIn the presence of:Here- Hereafter (今后或将来的某今后或将来的某一时间）一时间） Herein （在本文件中）（在本文件中） Hereinabove （在上文）（在上文） Herein

31、after （在下文）（在下文） Hereof （在本文件中）（在本文件中） Hereto （在本文件中）（在本文件中） Hereunder （在下文）（在下文） Hereby (特此特此 ，因此），因此） Where- Whereby (借以）借以） Whereof （关于）（关于） Whereas （鉴于）（鉴于） Whereupon （此后立即）（此后立即）法律英语经典表达法律英语经典表达 1.in accordance with （按照（按照规定）规定） The arbitration is to be administered by the American Arbitration

32、Association and is to be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. 2.SAVE（除非（除非,除除外）外） Save as otherwise provided in this Contract, each Party shall bear its own legal and other professional costs in relation to the preparation, negotiatio

33、n and entry into of this Contract. 3.NOTWITHSTANDING （尽管有（尽管有的规定）的规定） Notwithstanding clauses(a)and (b) of this Article 5.6 above, the Assigning Party may transfer all or part of its amount of the registered capital of the Company to an Affiliate (the “Affiliate Assignee”) of the Assigning Party on

34、the following conditions. 4. PROVIDED THAT但（前提）是但（前提）是 Provided that if any representation and warranty of a Party under Article B .1 is not true and correct in all material respects when made, or if there is a breach of Article E, then there shall be no Cure Period. 5.SUBJECT TO (根据根据的规定，在不抵触的规定，在不

35、抵触的前提下的前提下， 在符合在符合的情况下）的情况下） Subject to this section, an appeal shall be brought in such manner and shall be subject to such conditions as are prescribed by rules made under subsection 6.WHERE (如果如果,凡凡) Where a defendant is fined and the same is not forth with paid, the magistrate may order the defe

36、ndant to be searched.Exercises: Case Analysis Ms .Williams made a series of purchases of household goods from the Walker Thomas Furniture Co. from 1957 to 1962. These purchases include sheets, curtains, rugs, chairs, beds, mattresses, a washing machine and most recently stereo set. Each of the items

37、 was purchased on an installment plan agreement which Ms.Williams signed. Her last purchases was stereo unit for $514.She failed to make the required payments and as a result, the furniture company sought to take back everything she previously purchased, even though her total outstanding balance bef

38、ore purchasing the Stereo was just $164.Discussion Topic: Williams v. Walker-Thomas Furniture Co. Reference information about the case: A. Ms. Williams has 7 children and is separated from her husband .She has a limited formal education and maintains her household with the assistance of public funds

39、. B. The installment plan agreement included 14 contracts and each contained a long paragraph in extremely fine print. Part of the section provided that each payment made by the purchaser would be applied to the entire outstanding balance due. So each payment would actually pay a little bit of each Purchased items balance remaining . The furniture sto