《英美契约法》(双语)资料.docx

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1、I. Explain the following terms.1 . contractA valid contract is an agreement, formed by the mutual consent of the two parties.A contract may be definfed as an agreement, which legally binds the parties. The underline theory is that a contract is the outcome of consenting minds. However,parties are ju

2、dged by what they have said, written or done, rather than by what they are actually think.An agreement which the law will recognize and enforce which , apart from other important applications, forms the basis of most business relationships and transactions.2 . condition termA condition is a core ele

3、ment of a contract. It is fundamental to the existence of the contract.Breach of a condition entitles the injured party to:(1) repudiate the contract (ie. treat contract as discharged); and(ii)claim rescission which would enable him to receive property transferred; and (iii)claim damages: Poussard v

4、. Spiers.3 . Exclusion clauseExclusion clause are clauses which purport to exclude liability altogether, or to restrict it by limiting damages or by imposing other onerous conditions.4 . Consideration(a)It is the element of value in the agreement.(b)Both parties must bring something of value to the

5、agreement.(c)E.g. A sells B a car for 1. A and B are both providing value.(d) An act or forbearance of one party or the promise thereof is the price for which the promise of the other is bought and the promise thus given fbr value is enforceable: Dunlop v Selfridge.5 .Promissory estoppelIf the doctr

6、ine of promissory estoppel applies then the creditor may be estopped from suing for the balance of the original debt.The doctrine may apply if:(a) the creditor agrees to accept part payment in full and final settlement of a debt; andthe creditor intends that the debtor will rely on the agreement; an

7、d(b) the debtor does act in reliance on the agreement (it is not sufficient merely to pay the lower amount).6 .Warranty termA warranty is collateral to the main purpose of the contract. It is not essential. Breach of a warranty entitles the injured party to claim damages only: Bettini v. Gye. 7. The

8、 standard form contractMass production and nationalization have led to the standard form contract.The standard form contract is a document prepared by many large organizations setting out the terms which they contract with their customers. The individual must usually take it or leave it. For example

9、, a customer has to accept his supply of electricity on the electricity boards terms - he is not likely to succeed in negotiating special terms, unless he represents a large consumer such as a factory.8 . offerAn offer is a definite promise to be bound on specific terms. An offer may be defined as f

10、ollows:An express or implied statement of the terms on which the maker is prepared to be contractually bound if it is accepted unconditionally. The offer may be made to one person, to a class of persons or to the world at large, and only the person or one of the persons to whom it is made may accept

11、 it.A definite offer does not have to be made to a particular person. It may be made to a class of persons or to the world at large.9 .Past considerationPast consideration does not actually count as valid consideration, therefore no agreement resting on past consideration is legally enforceable. Nor

12、mally consideration is provided either at the time of the creation of a contract or at a later date.1().express termAn express term is one which has been clearly stated orally or in writing, or may be by reference at the time of contract.11 .executory considerationExecutory consideration is the prom

13、ise to perform an action at some future time. One party to a contractual agreement may pay money to another on the understanding that the latter will perform some act for them in the future. Or alternatively they might provide an immediate benefit for the other party on the understanding that the la

14、tter will provide a reciprocal benefit in the future. Contracts may also be made solely on the basis of an exchange of promises as to future action, without the need for any present action. In such circumstances the mere promises provide mutual/reciprocal consideration and any such agreement entered

15、 into is legally binding and enforceable in a court of law. Such a contract is known as an executory contract.12 .Liquidated damagesLiquidated damages are such a fixed or ascertainable sum agreed by the parties at the time of contracting, payable in the event of a breach. They must be a genuine pre-

16、estimate of loss. Any such sum which is not a genuine pre-estimate, but is intended to be an onerous punishment, is termed a penalty clause.13 . AcceptanceAn unconditional assent to all the terms of the offer: Neale v Merrett(a) It is important to identify a clear offer, and unconditional acceptance

17、.Negotiations may constitute a series of counter offers, each party trying to impose their standard terms on the contract: the battle of the forms/* Hence if faced with this type of question ensure that you identify what is happening at each stage of the negotiations until you have a clear offer and

18、 acceptance.(b) Acceptance may only be made by authorised person: (compare revocation).(c) Must be made whilst the offer is still open ie:(i) before revocationbefore any time limit specified has expired(ii) before the offerees deathInnominate termInnominate term is a term which cannot be categorised

19、 at the start of the contract. The court will look at the effect of the breach: Hong Kong Fir Shipping Company v Kawasaki Kisen Kaisha.15.off erAn offer is a definite promise to be bound on specific terms. An offer may be defined as follows:An express or implied statement of the terms on which the m

20、aker is prepared to be contractually bound if it is accepted unconditionally. The offer may be made to one person, to a class of persons or to the world at large, and only the person or one of the persons to whom it is made may accept it.A definite offer does not have to be made to a particular pers

21、on. It may be made to a class of persons or to the world at large.111. Answer the following questions.1.State and explain the ways to terminate an Offer.(a) Rejection: of an offer or refusal to accept.(b) Counter offer: Hyde v Wrench.A counter offer is simply a new offer. (3 marks)Conditional accept

22、ance: Neale v Merrett. Contrast requests for information : Stevenson v McLean.A conditional acceptance is an attempt to introduce new terms into the offer and as such cannot be an acceptance.(c) Lapse of time: (an express or implied period) will terminate an offer: Ramsgate Hotel v Montefiore. (3 ma

23、rks)Revocation of an offer:(i) is effective any time before acceptance occurs Routledge v Grant;as long as it is actually communicated: Byrne v Van Tienhoven;(ii) can be communicated via a reliable third party: Dickinson v Dodds;(f)Death. (4 marks)2. Explain the implied term.An implied term is one w

24、hich the court will allow because:(a) It has to as the term is statutory (e.g. Sale of Goods Act 1979 as amended); This states that it will be a condition of the contract that (inter alia); (3 marks)(i) the seller had title to the goods,(ii)the goods are of satisfactory quality and fit for purpose,

25、(iii)the goods correspond with their description. (3 marks)It is necessary for the efficacy of the particular contract: The Moorcock; or(b) It is customary through trade usage. Terms implied by custom cannot override the express terms of an agreement.Also where the parties have had previous dealing

26、on the basis of an exclusion clause, that clause may be included in later contracts. (4 marks)Explain the essentials of a contract.The three essential elements of a contract. Are offer and acceptance, consideration and intention to enter inter into legal relations.The courts will usually look for ev

27、idence of three essential elements in any contract:(1 )There must be an agreement usually made by offer and acceptance. (3 marks)(2) The parties must have an intention to create legal relations between themselves.(3 marks)(3)There must be a bargain by which the obligations assumed by one party are s

28、upported by consideration (value) given by the other.We will explore these three essential elements in the next two chapters. (4 marks)Exceptions to the communication rule(a) Where the need for communication is waived: Carlill v Carbolic Smoke Ball Co.(Be careful this does not negate the need for ac

29、ceptance itself.) (3 marks)Where the postal rule applies acceptance will occur at the moment of posting: Adams v Lindsell, Household Fire Insurance v Grant. (3 marks) Conditions:(i) Letter must be properly addressed and stamped;put into the post in the normal way; (2 marks)(ii) the postal rule will

30、not have been excluded i.e. it must be in contemplation of both parties that acceptance will take place by post. (2 marks)Explain the rules about the formalities of contract.Certain contracts have to be made in a formal way:(1) Some contracts must be in writing:(a) consumer credit agreements(2 marks

31、)transfer of company shares(b) money lending contracts(2 marks)contract for the sale or other disposition of land e.g. leases: LP(MP)A89(2) Some contracts do not have to be in writing. But written evidence must be available to enable an action to be brought, eg. Contract of guarantee. (2 marks)Certa

32、in contracts must be executed as a Deed (and are called speciality contracts):(a) Gratuitous promises: Deeds of CovenantTransfers of a legal estate in land(2 marks)(3) Contracts of employment need not be in writing or evidenced in writing but the main details must be outlined. (2 marks)Explain the v

33、alidity factors of a contract.Even if these essential elements can be shown, a contract may not necessarily be valid or may only be partially valid. The validity of a contract may also be affected by any of the following factors.(l)Capacity. Some persons have only restricted capacity to enter into c

34、ontracts.(2) Form. Some contracts must be made in a particular form. (2 marks)Content. In general the parties may enter into a contract on whatever terms they choose. (2 marks)(3)Some terms which the parties do not express may be implied, and some terms which the parties do express are override by s

35、tatutory rules. (2 marks)(4)Genuine consent. A mistake or misrepresentation made by one party may affect the validity of a contract. Parties may be induced to enter into a contract by undue influence or duress. (2 marks)(5) Legality. The courts will not enforce a contract which is deemed to be illeg

36、al or contrary to public policy. (2 marks)7.State and explain the rules about invitations to treat.Offers must be distinguished from invitations to treat.a)bc)DThis is inviting someone to make an offer or commence negotiations.It cannot be accepted. (2 marks)Examples of invitations to treat:items di

37、splayed on shelves: Pharmaceutical Society of G.B. v Boots CashChemists. (3 marks)(ii) items in shop windows: Fisher v Bell.(iii) usually adverts in newspapers: Partridge v Crittenden.Note however offers made to the whole world: Carlill v Carbolic Smoke Ball Co.(iv) auction notices. (3 marks)prospec

38、tuses.(vi)mail order catalogues.(2 marks)Explain the doctrine of consideration.(l)Need not be adequate, but must be sufficient: Chappell v Nestle. (2 marks)(2)The law defines what will be insufficient. (2 marks)(a)Performance of an existing legal or contractual obligation is insufficient considerati

39、on to support a promise of additional reward Stilk v Myrick unless:(1) More than existing duties are performed Hartley v Ponsonby; or(ii)Both parties derive a benefit, provided no duress or fraud Williams v Roffey Bros & Nicholls (Contractors) Ltd. (3 marks)(b)Partial performance of an estimating le

40、gal or contractual obligation is insufficient consideration to support a waive of contractual or legal rights. (3 marks)Explain the form of a contract.As a general rule, a contract may be made in any form. It may be written, or oral, or inferred from the conduct of the parties. For example, a custom

41、er in a self-service shop may take his selected goods to the cash desk, pay for them and walk out without saying a word. (3 marks)Writing is not usually necessary except in the following circumstances.(l)Some contracts must be by deed. (3 marks)(2) Some contracts must be in writing. (2marks)(3)Some contracts must be evidenced in writing. (2marks)