英美合同法-讲义.pdf

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1、,A Brief Introduction To The Anglo-American Law of Contract 讲义 CHAPTER 1 INTRODUCTION TO ENGLISH AND AMERICAN CONTRACT LAW 第一章 导论 Many students wrongly imagine that the law of contract is difficult in that it will deal with complicated commercial situations.They also think of contracts as complicate

2、d written documents only entered into on rare occasions such as accepting the offer of a job,renting or buying a house,or engaging in a major business transaction.In fact,most of us enter into contracts every day and the vast majority of them are less complicated.Buying a bus or train ticket,a cup o

3、f coffee or a book are all example of contracts and we hardly ever bother to record these affairs in writing,negotiate them in detail.Although it is usually fairly easy to recognize a contract once formed,it is by no means such an easy task to describe in general terms what a contract is.It is usual

4、ly,perhaps universally,said that a contract is a legally enforceable agreement and that it is formed by the process of“Offer and Acceptance.”It is also said that the agreement must be supported by“consideration”for it is the presence of consideration that makes the agreement enforceable.The contract

5、 law course taught in this semester usually deal with the“general principles of contract”.We will not concern with those more advance fields such as contracts of employment,of the sale of goods between business and to consumers,of international sales,of the disposal or retention of intellectual prop

6、erty rights,of shipping,of insurance,and of construction deals.Aims and Requirements This chapter introduces some basic theory in Common Law system on contract law.The section A begins our survey with the definition of contract,which introduces a number of themes including the basis of contract and

7、the conditions for enforcement of promises.Section B presents an overview of some theoretical issues and provides some very basic information that often emerges in class only incidentally and may therefore be missed by some students.Section C concentrates on the development of Anglo-American contrac

8、t law in the past century.It is useful for the student to understand new characteristics of modern contract law.Time Allocation 4 hour SECTION A B C HOUR(S)2 1 1 Please brief the case and provide me with a copy of your brief at the first class.,SECTION ATHE MEANING OF“CONTRACT”AND BASIS OF CONTRACT

9、第一节 合同的定义和合同基础 I.Meaning Of Contract Purpose and demand In this certain part of the chapter we must cover the following purpose and demands:the students should master the definition of Contract.They will be familiar with the sources of contract law.The understanding of the differences between Englan

10、d and The USA is also very important.Main content I.The Meaning of“Contract”A contract is a promise,or set of promise,for breach of which the law gives a remedy,or the performance of which the law in some way recognizes as a duty.(Restatement of the Law,Second,Contracts,Section1.)A contract is defin

11、ed as an exchange relationship created by oral or written agreement between two or more persons,containing at least one promise,and recognized in law as enforceable.Briefly speaking,a“contract”is an agreement（a promise or a set of promise）that the law will enforce.A contract is a legally binding agr

12、eement between two or more parties or a set of legal binding promises made by one party or more.(See G.C.Lindsay,Contract,(3 rd,1992)at 67.)Although this definition will not likely satisfy everyone,it does reflect the essential elements that everyone seems to accept:II.So there are five essential el

13、ements in a contract:1.An oral or written agreement Probably,the most important attribute of contract is that is a voluntary,consensual relationship.A contract is created only because the parties,acting with free will and intent to be bound,reach agreement on the essential terms of their relationshi

14、p.It is the element of agreement that distinguishes contractual obligation from many other kinds of legal duty,such as the obligation to compensate for negligent injury or to pay taxes that arise by operation of law from some act or event,without the need for assent.,Although agreement between the p

15、arties is essential to the creation of contract,the question of what constitutes legally sufficient agreement can be difficult;the question is discussed in detail later.For the present,it is sufficient to point out that the law does not demand an inquiry into the minds of the parties to decide wheth

16、er they had formed an actual intent to contract.Such an investigation into the actual thoughts and understanding of a party(called subjective intent)would not adequately protect the other party s reasonable reliance on apparent intent,as portrayed by words and conduct.Also,because the only means of

17、establishing the true state of mind of a person is the testimony of that person,evidence of true intent is likely to be unreliable and colored by self-interest.Therefore,in deciding whether a person agreed to a contract,the law gauges intent objectively.That is,it evaluates the person s overt actswo

18、rds and conductto decide whether they reasonably signified an intent to enter the transaction.The concept of volition must also be approached with caution.Although a contract is a voluntary relationship,this does not mean that a party must be completely free of all pressure and must exercise unfette

19、red free will.It is inevitable and tolerable that a party suffers some degree of compulsion from personal circumstances,desires,and needs,and from external market forces.However,where this pressure becomes too intense and is taken advantage of by the other party,it undermines volition and negates th

20、e apparent accent.The definition also indicates that agreement may be oral or written.Under a legal rule called the statute of frauds,certain specified contracts must be recorded in writing and signed to be enforceable.However,unless a contract falls within the statute of frauds,it is fully binding

21、in oral form.It is common for both lay persons and lawyers to use the word“contract”to refer to the document setting out the terms of the agreement that is signed by the parties.Strictly speaking,the document is not the contract,but merely the memorandum or record of the contract.The contract is the

22、 legal relationship that arises from the agreement that may or may not be recorded in a written memorial.2.The involvement of two or more persons As with tangos,it takes two to contract.This proposition seems so self-evident that it is hardly worth mentioning.Unlike the tango,however,a contract is n

23、ot confined to two participants.There can be as many parties to a contract as the needs of the transaction dictate.In fact,multiparty contracts are common.3.An exchange relationship As mentioned earlier,a contract is a relationship.By entering into the agreement,the parties bind themselves to each o

24、ther for the common purpose of the contract.Some contractual relationships last only a short time and require minimal interaction.For example,a contract for a haircut involves a fairly quick performance by the hairdresser,followed by the fulfillment of the customer s payment obligation.Other contrac

25、tual relationships,such as leases or long-term employment or supply contracts,could span many years and require constant dealings between the parties,regulated by detailed,provisions in the agreement.The essential purpose of the contract relationship is exchange.It lies at the heart of contract.Cont

26、ract and trade go hand in hand:because trading is a vital and indispensable facet of our society,contract law exists to facilitate it.In other words,the very essence of contract is the reciprocal relationship in which each party gives up something to get something.These“somethings”are as varied as o

27、ne could imagine:a goatherd may promise to trade a goat to a miller for a sack of flour;an inventor may trade the rights to her idea for a promise by a manufacturer to develop the idea for mutual profit;a fond uncle may promise his nephew money in exchange for an undertaking not to drink,smoke,and g

28、amble.These situations vary greatly.Some involve tangible things,others intangible rights.Some of the promises have economic value,others do not.Yet their basic format is the same-a bargain has been reached leading to a reciprocal exchange for the betterment(real or perceived)of both parties.4.At le

29、ast one promise As already stressed,contract is a relationship.If two people chat for a few minutes at a reception and then part with no intention of ever seeing each other again.Their encounter would not likely be described as a relationship.So as for contract,instantaneous exchanges,even though co

30、nsensual,do not constitute contracts.For a contract to exist,there must be a promise-that is,some commitment for the future,some assumptions of liability lasting beyond the instant of agreement.This is because is neither party makes a commitment,there is nothing to enforce and no need for the law of

31、 contracts to be concerned with the exchange.III.A few illustrations The concept of promise or commitment needs explanation and refinement.A promise is an undertaking to act or refrain from acting in a specified way at some future time.This promise may be made in clear and express words,or it could

32、be implied that is,inferred from conduct or from the circumstances of the transaction.Furthermore,as the definition indicates,only one promise needs to be made for a contract to come into existence.Where at the instant of contracting,promises remain outstanding on both sides,the contract is called b

33、ilateral.Where,at the instant of contracting,one party has fully performed and all that remains is a promise by the other,the contract is called unilateral.This sounds rather abstract.A few illustrations may help to make it more concrete.A.An Instantaneous Exchange:No Contract.Where an exchange is e

34、ntirely instantaneous,and neither party makes any promises to the other,their exchange is not regarded as a contract.For example,say that while Rocky was walking along the bank of a river he encountered Eddy sitting on the shore next to his kayak.Rocky took$400in cash out of his pocket and,offered t

35、o buy the kayak from Eddy“as is”(that is without any warranty from Eddy as to its condition or quality).Eddy accepted the cash,and Rocky climbed into the kayak and paddled off.At this point,there is a simple,instantaneous exchange without any expectation that Rocky could complain if the kayak was su

36、bstandard or defective.Each party has fully performed,and no promise has been made.The transaction is not a contract,in contract law,it is described as an executed exchange.B.A Promissory Exchange:Bilateral Contract.Change the facts in Illustration 1:Rocky said to Eddy,“I will buy that kayak from yo

37、u provided that it is watertight.I will give you a check for$400 immediately.”Eddy replied,“It was watertight,I accept.Give me the check and take the kayak.”Even though the parties immediately exchange the check and kayak,the delivery does not end their duty of performance.By giving his undertaking

38、Eddy has made a promise concerning the kayak s condition,which will allow recourse if it does not meet the agreed standard.Similarly,Rocky s check is not an immediate payment,but is nothing more than a commitment that his bank will pay the money upon presentation of the check.Thus promises exist on

39、both sides after the moment of agreement,and a bilateral contract exists.This is called an executor exchange.C.A Promissory Exchange by Implication:Bilateral Contract.In Illustration 2 Eddy made an express promise that the kayak was watertight.However,it is not always necessary for promises to be st

40、ated in express terms.Often,the circumstances of the transaction,the conventions of the marketplace,or the policy of the law imply a promise even in the absence of promissory language in the agreement.Therefore,if it is commonly understood in the market that a seller warrants the fitness of what he

41、sells,a simple exchange,without any express words relating to the kayak s condition,will give rise to an implied promise that kayak is watertight.D.A Promise for Performance:Unilateral Contract.Finally,say that Rocky offered to buy the kayak for$400 and tendered his check.Eddy agreed to sell it“as i

42、s”,making it clear that he made no promise about its condition or quality.Rocky agreed,handed the check to Eddy,and paddled away.Here Eddy s performance is instantaneous,but Rocky has made a promise of future performance(payment on presentation of the check).When,at the point of contract formation,o

43、nly one party has a promise outstanding,the contract is unilateral.5.Legal Recognition of Enforceability Contracting is often described as an act of private lawmaking by which persons create a kind of personalized“statute”to govern their relationship.One can only envisage contract as private legisla

44、tion if it has the attribute of any law recognition and enforcement through the compulsive power of the state,acting through its courts.It is therefore a hallmark of contract that it creates law binding on the parties and confers on them rights and obligations cognizable in law.,Key Points and Diffi

45、cult Points Essential elements which constitute a contract in Anglo-American contract law.Questions In what circumstances a contract could be seen as enforceable under American contract law?SECTION BTHE FUNDAMENTAL POLICIES OF CONTRACT LAW 第二节 合同法的基本原则 Main Content I.The Fundamental Policies of Cont

46、ract Law 1.Freedom of contract The consensual and voluntary nature of contract was stressed in previous section.The power to enter contracts and to formulate the terms of the contractual relationship is regarded in Common Law system as an exercise of individual autonomy-an integral part of personal

47、liberty.The converse is also true:because contracting is an exercise of personal liberty,no one may be bound in contract in the absence of that person s assent.While freedom of contract is a fundamental value,the exercise of this freedom by one person cannot be untrammeled.Like other liberties,it is

48、 delimited by corresponding rights held by other persons,and by state s legitimate interest in appropriate regulation.It stands to reason that the absolute exercise of contract freedom by a dominant party will diminish or defeat the exercise of similar freedom by the weaker party.To avoid this happe

49、ning,the courts or legislature must provide rules that protect the weaker party from being overwhelmed by the free exercise of contractual power by the stronger.Therefore,for example,a large insurance company or an employer may have its freedom of action curtailed so that it cannot impose harsh or o

50、ne-side terms on an insured or an employee.Quite apart from the problem of ensuring a proper balance in the contractual freedom of the parties,the state may have an important interest in reaching an accommodation between freedom of contract and other fundamental values.For example,policies prohibiti