Contract law 合同法

1、BU1112Business LawLecture - Module 2Contract Law“Is My Agreement an Enforceable Contract?”IntroductionThe Law of Contract involves answering 4 questions:a. Is my agreement an enforceable contract?- Are all of the elements of a contract present. b. If so, what does it require me (and the other party)

2、 to do?- What “promises” have become terms of the contract.c. Can I get out of it (without paying some form of penalty)?- Was the formation of the contract defective in some way (ie were there any vitiating elements present).d. If not and I want to terminate it anyway, how can I and what penalties m

3、ight I incur?- How can contract come to an end and what remedies are available to a party not in default. Module Outline1. Introduction to contracts.2. Types of contracts.3. Elements of contract:a.Offer;b.Acceptance;c.Consideration;d.Intention to be bound;e.Mutuality;f.Capacity;g.Legality.ContractAn

4、 agreement which the law will enforce.Economic Significance of Contract LawContract law is important because it affects almost all commercial dealings: all sale contracts; all employment contracts every service agreement every lease almost every transfer of property etcDifferent Legal Approaches to

5、ContractIn common law countries contract law mainly consists of principles developed by the courts + some equitable rules + some statute.In civil law countries contract law is codified and the role of the court is limited.Philosophy of Contract LawIn common law countries the dominant philosophy is “

6、classical contract theory” or “will theory”. It assumes that contracts arise from the exercise of free will and therefore should be enforced.Governments and courts should not interfere they just provide the framework of the law.This theory is still accepted - but with modifications to protect the we

7、aker parties in the contract. Requirements for ValidityIn most cases contracts do not have to be written.They can be: written; partly written and partly oral; wholly oral; or implied from the way the parties behave. THE SALE OF GOODS ACT 1896 (QLD)FORMALITIES OF THE CONTRACT6. Contract of sale, how

8、made. Subject to the provisions of this Act and of any Statute in that behalf, a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties:This section does not affec

9、t the law relating to corporations.Question:You contract with a supplier for the purchase and delivery of goods for $10,000 the goods to be delivered to your warehouse in Townsville by 6th June. Does the contract have to be in writing? Would it be wise to have it in writing?Types of Contract1. CONTR

10、ACTS UNDER SEAL.2. SIMPLE CONTRACTS.Unilateral ContractsThose under which only one party is OBLIGED to do anything.Bilateral ContractsThose under which BOTH parties are OBLIGED to do something.Multilateral ContractsContracts involving more than two parties (eg, partnership agreements).Elements of a

11、Contract1. Offer2. Acceptance3. Consideration4. Intention to be bound5. Mutuality6. Capacity7. LegalityOfferA promise to do (or not to do) something together with an intention to be contractually bound on acceptance by the other party.ORA clear statement of the terms on which an offeror is prepared

12、to be contractually bound.Offers can be made to: one person; an identified group of people; or the world at large.Offers to the World at LargeOffers not directed to any specific person or persons but to anyone who becomes aware of them (other than those if any who are EXPRESSLY excluded from the off

13、er).Invitations to TreatStatements made to others inviting THEM to make you an offer.Examples of Invitations to Treata. advertisements and circulars;b. displays of goods in shops;c.calls for bids at auctions; and d. calls for tenders.Question:On Friday night you see an advertisement by a local retai

14、ler reading: Huge sale. Refrigerators. Only $500. (There are only two refrigerators for sale at that price but it does not say that in the ad.) On Saturday morning you are the third person to enter the shop and you ask for one of the refrigerators. The owner tells you that the cheap refrigerators we

15、re sold to the first two customers. Do you have any recourse under the common law?Would your answer be different if the ad had read First two customers only - and you had been the second customer into the shop?Question:You put out a call for tenders for the supply of particular services your busines

16、s requires. Is that an offer to deal with:a. The lowest tenderer;b. The tenderer who best meets the specifications;c. Any tenderer? PUFFObviously far-fetched statements made to induce a contract but not intended to form part of the contractual obligation.Student sues Pepsi for jetSEATTLE A 21-year-o

17、ld business student has sued PepsiCo Inc for not giving him a Harrier fighter jet like one featured in a television advertisement. John Leonards lawsuit accuses Pepsi of breach of contract, fraud, deceptive and unfair trade practices, and misleading advertising.Pepsi maintains the commercial was a s

18、poof and says it has a perfect right to use humour in its advertising.Question:You want to acquire equipment for your office. You contact a supplier and, in the course of your conversation, he says, “Our products are the best on the market. None of our competitors have anything that will do what thi

19、s does for anything like the price”. You accept his quote but you later find that there are other products that will do the job better and, in most cases, cheaper. Can you either escape the contract or sue the supplier for damages? Question:Would your answer to the previous question be different if

20、the supplier had given you a photocopy of what appeared to be an independent report commissioned by Choice Magazine showing that the product was the most efficient and economical on the market. The report was a fake. Cross-offersCross-offers occur when two parties forward offers to one another at th

21、e same time and in the same or substantially similar terms.In such cases there are two offers but NO acceptances and, therefore, NO contract.Termination of Offers1. Revocation by the offeror;2. Rejection by the offeree;3. Lapse of time;4. Change of circumstances;5. Failure of a condition;6. Death of

22、 a party;7. Supervening incapacity.Question:You write to a supplier with whom you have a standing relationship ordering goods and asking that they be delivered by 1 December in time for sale before Christmas. You receive no formal response but on 24 December the goods arrive. The supplier says that

23、the delay was caused by a shipping problem outside his control. You refuse to accept or pay for them. Can the supplier force you to accept the goods or pay for them?AcceptanceA FINAL and UNQUALIFIED assent to the terms of an offer(ie the offeree agrees to deal on EXACTLY the SAME terms that the offe

24、ror offered).Who May Accept?Only those persons: To whom the offer was intended; and To whom it was communicated.What Can Be Accepted?What was offered (without any additions, deletions or conditions).IF any alteration is made the offeree is not accepting he or she is making a counter-offer. Counter-o

25、fferRejects the original offer and substitutes a new offer for it.Question:A supplier sends you a letter offering to sell you a quantity of goods. You are not interested but you hand the letter to a friend you think might be interested. She immediately writes to the supplier agreeing to buy the good

26、s. The supplier refuses to deal with her because of problems he has had with her in the past. Can the supplier be forced to sell?Rules of Acceptance1.Acceptance generally must be COMMUNICATED to be effective.2.Such communications may be by WORDS or ACTIONS.3.SILENCE cannot be STIPULATED as the requi

27、red means of acceptance.4.An offeror can WAIVE his or her right to communication of acceptance.5.The offeror can REQUIRE acceptance to be in a prescribed manner.Question:You write to a supplier offering to buy goods. Your letter says If you accept my offer please send the goods by the 14th. The supp

28、lier immediately ships the goods. You receive them on the 14th but, by then, you have changed your mind. You refuse to accept delivery. Can the supplier demand payment? The Postal RuleWhere acceptance by MAIL or TELEGRAM is CONTEMPLATED BY THE PARTIES, the acceptance will be complete when the letter

29、 is posted or the telegram is sent.The Postal Rule does NOT apply where:a.The parties dealings were protracted or contentious;b. It would produce manifest inconvenience or absurdity; orc.The offeror expressly requires ACTUAL communication of acceptance.Revocation of AcceptanceAn acceptance can be re

30、voked IF the revocation comes to the offerors attention before he or she receives the acceptance.Intention To Be BoundWhat separates a mere agreement from a contract is the parties intention to be bound IF agreement is reached.Rules for Intention To Be Bound With all agreements determine the parties

31、 intention objectively looking at both the agreement and at all of the surrounding circumstances. The old “presumptions” no longer apply-BUT it is still probable that: purely SOCIAL or DOMESTIC agreements will not involve the required intention to create a LEGALLY ENFORCEABLE agreement; but BUSINESS

32、 or COMMERCIAL agreements will probably involve that intention.Question:Your son asks you to lend him money to start a business. You agree to a loan at 4% below bank interest rates but you later change your mind and refuse to give him the money. He therefore has to borrow the money he needs from a b

33、ank at commercial rates. If he demands that you compensate him for the additional interest he has to pay will he succeed?Honour ClausesStatements in an agreement expressly providing that the parties do not intend that their agreement will create legal rights or result in legal consequences.Disclaime

34、rs of Intention (Honour Clauses)“This document does not give rise to any legal relationship, nor is it intended by the parties that any legal consequences shall flow from this agreement.”- ACCEPTABLE“No court on law shall have jurisdiction over or power to adjudicate in respect of any matter arising

35、 out of this agreement or any breach thereof.”- UNACCEPTABLEConsiderationThe price paid by the promisee for the promisors promise.Consideration can take the form of either:a. a BENEFIT to the promisor;orb. a DETRIMENT to the promisee incurred at the promisors request.Consideration can be:a. executor

36、y;b. executed;c.BUT NOT past.The Concept of “VALUE”1. Consideration must be something of value in the eyes of the law.2. BUT it need not be of an equivalent value to the promisors promise.(ie, it needs to be SUFFICIENT but it need not be ADEQUATE.)Question:You introduced an acquaintance to one of yo

37、ur suppliers. As a result, she became one of the suppliers best customers. The supplier then agreed to pay you a “finders fee” for the introduction. He has not paid. Can you sue him? Would your answer be different if you operated as an introduction agent and you had made similar introductions to the supplier in the past?The Rule in Pinnels CasePayment of a