商務(wù)知識導(dǎo)讀課件董曉波 isbn9787566309365 pptunit 13 contractuallaw

1、Unit 13 Contractual law,TextWords & ExpressionsNotesExercises Supplementary ReadingAdditional information,Text:,Contractual formation 導(dǎo)讀：合同法是調(diào)整平等主體之間的交易關(guān)系的法律，它主要規(guī)范合同的訂立、合同的效力、合同的履行、變更、轉(zhuǎn)讓、終止、違反合同的責(zé)任及各類有名合同等問題。合

2、同法并不是一個獨立的法律部門，而是民法的重要組成部分。 合同法適用于平等主體的個人、法人、其他組織之間設(shè)立、變更、終止民事權(quán)利義務(wù)關(guān)系的協(xié)議?！皞€人”包括中國人，也包括外國人和無國籍人。“法人”是指依法成立，能夠獨立享有民事權(quán)利和承擔(dān)民事義務(wù)的組織，包括公司、企業(yè)事業(yè)單位、機關(guān)、團體等?！捌渌M織”指不具備法人資格的合伙組織以及分支機構(gòu)等。 民事權(quán)利義務(wù)關(guān)系，主要指財產(chǎn)關(guān)系，不屬于民事法律關(guān)系的其他活動，不適用合同法

3、。,A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law. Breach of contract is recognized by the law and remedies can be provided. Co

4、ntract law can be classified, as is habitual in civil law systems, as part of a general law of obligations (along with tort, unjust enrichment or restitution).,Contractual formationIn common law, there are five key requ

5、irements for the creation of a contract. These are offer and acceptance (agreement), consideration, an intention to create legal relations, capacity and Formalities. In civil law systems, the concept of consideration is

6、not central. In addition, for some contracts formalities must be complied with under what is sometimes called a statute of frauds.,Offer and acceptanceThe most important feature of a contract is that one party makes an

7、offer for an arrangement that another accepts. There must be evidence that the parties had each from an objective perspective engaged in conduct manifesting their assent, and a contract will be formed when the parties ha

8、ve met such a requirement.,Offer and acceptance does not always need to be expressed orally or in writing. An implied contract is one in which some of the terms are not expressed in words. This can take two forms. A cont

9、ract which is implied in fact is one in which the circumstances imply that parties have reached an agreement even though they have not done so expressly. A contract which is implied in law is also called a quasi-contract

10、, because it is not in fact a contract; rather, it is a means for the courts to remedy situations in which one party would be unjustly enriched were he or she not required to compensate the other.,Consideration and estop

11、pelConsideration is a controversial requirement for contracts under common law. It is not necessary in all civil law systems, and for that reason has come under increasing criticism. Three rules govern consideration.,C

12、onsideration must be sufficient, but need not be adequate. Consideration must not be from the past. Consideration must move from the promisee.,Civil law systems take the approach that an exchange of promises, or a co

13、ncurrence of wills alone, rather than an exchange in valuable rights is the correct basis. However, in common law systems the concept of culpa in contrahendo, a form of 'estoppel', is increasingly used to create

14、obligations during pre-contractual negotiations.,Intention to be legally boundThere is a presumption for commercial agreements that parties intend to be legally bound. On the other hand, many kinds of domestic and socia

15、l agreements are unenforceable on the basis of public policy.,The case is often cited in conjunction with Merritt v. Merritt. Here the court distinguished the case from Balfour v. Balfour because Mr. and Mrs. Merritt, al

16、though married again, were estranged at the time the agreement was made. Therefore any agreement between them was made with the intention to create legal relations.,The abstraction principleGermany has a special approac

17、h to contracts, which ties into property law. Their 'abstraction principle' (Abstraktionsprinzip) means that the personal obligation of contract forms separately to the title of property being conferred. When con

18、tracts are invalidated for some reason. Unjust enrichment law, rather than the law of contract, is then used to restore title to the rightful owner.,Formalities and writingContrary to common wisdom, an informal exchange

19、 of promises can still be binding and legally as valid as a written contract. Any contract that uses words, spoken or written, is a verbal contract. This is in contrast to a "non-verbal, non-oral contract," als

20、o known as "a contract implied by the acts of the parties", which can be either implied in fact or implied in law.,Most jurisdictions have rules of law or statutes which may render otherwise valid oral contract

21、s unenforceable. This is especially true regarding oral contracts involving large amounts of money or real estate.,In Australia and many, if not all, jurisdictions which have adopted the common law of England, for contra

22、cts subject to legislation equivalent to the Statute of Frauds, there is no requirement for the entire contract to be in writing. If a contract is in a written form, and somebody signs the contract, then the person is b

23、ound by its terms regardless of whether they have read it or not, provided the document is contractual in nature. Furthermore, if a party wishes to use a document as the basis of a contract, reasonable notice of its term

24、s must be given to the other party prior to their entry into the contract.,Words & Expressions:,breach of contract [ bri:t? ?v 'k?ntrækt ] 違約,違反合同unjust enrichment [ '?n'd??st in'rit?m?nt ] 不正當(dāng)?shù)?/p>

25、利statute of frauds [ 'stætju:t ?v fr?:dz ]禁止詐欺法, 防止欺詐法規(guī)invitation to treat [ ,invi'tei??n tu tri:t ] 邀請投標(biāo)人做交易Court of Appeal [ k?:t ?v ?'pi:l ] 地區(qū)法院，上訴法院，指受理上訴的法院concurrence [ k?n'k?r?ns ] n. 同時(

26、或同地)發(fā)生, 同時存在, 合作manifest [ 'mænifest ] vt. 表明, 證明unilateral contract [ 'ju:ni'læt?r?l 'k?ntrækt ] (對義務(wù)承擔(dān))單方面合同,offeree[ ,?f?'ri: ] n. 被發(fā)價人；被要約人；相對人；要約受領(lǐng)人quasi -contract [ 'kwɑ:zi

27、 'k?ntrækt ] [律]準(zhǔn)契約sprinkler system [ 'spri?kl? 'sist?m ] 自動灑水裝置, 自動噴水滅火系統(tǒng)quantum meruit [ 'kw?nt?m [拉丁]按勞計酬estoppel [ is't?p?l ] n. [律]禁止反言, 禁止, 防止duress [ dju?'res ] n. 強迫, 監(jiān)禁collatera

28、l contract [ k?'læt?r?l 'k?ntrækt ] .附屬合同，附屬契約guardian [ 'gɑ:dj?n ] n. 護衛(wèi)者, 保護人, 監(jiān)護人,promisee [ ,pr?mi'si: ] n. [律]受約人, 承諾人culpa in contrahendo [ 'kulp? [拉丁] 締約過失責(zé)任equitable doctrine [ &#

29、39;ekwit?bl 'd?ktrin ] 衡平法則entrenched [ in'trent?t ] adj. 確立的，不容易改的（風(fēng)俗習(xí)慣）,Notes:,1. Sir John William Salmond(約翰·威廉·薩爾蒙德爵士) (3 December 1862 - 19 September 1924) was a legal scholar based in New Zealand

30、 and Australia. 2. Carlill v. Carbolic Smoke Ball Company（石碳酸球案） [1893] 1 QB 256 is a landmark case in English contract law, specifically the law of unilateral offers.,3. Nathaniel Lindley, Baron Lindley SL (November

31、29, 1828 – December 9, 1921), English judge, son of the botanist John Lindley, was born at Acton Green, London. He became a Queen's Counsel in January 1872. In 1874 he was elected a bencher of the Middle Temple, of w

32、hich he was treasurer in 1894. In 1875 he was appointed a justice of the Court of Common Pleas, the appointment of a chancery barrister to a common-law court being justified by the fusion of common law and equity then sh

33、ortly to be brought about, in theory at all events, by the Judicature Acts.,In 1880 he became a justice of the Queen's Bench and in 1881 he was raised to the Court of Appeal of England and Wales and made a Privy Coun

34、cillor. In 1897, Lord Justice Lindley succeeded Lord Esher as Master of the Rolls, and in 1900 he was made a Lord of Appeal in Ordinary with a life peerage and the title of Baron Lindley, of East Carleton in the County o

35、f Norfolk. He resigned the judicial post in 1905.Lord Lindley was the last serjeant-at-law appointed, and the last judge to wear the serjeant's coif, or rather the black patch representing it, on the judicial wig. H

36、e married in 1858 Sarah Katherine, daughter of Edward John Teale of Leeds.,4. A collateral contract（隨附合同） is a contract where the consideration is the entry into another contract, and co-exists side by side with the main

37、 contract. For example, a collateral contract is formed when one party pays the other party a certain sum for entry into another contract. A collateral contract may be between one of the parties and a third party. A part

38、y to an existing contract may attempt to show that a collateral contract exists if their claim for a breach of contract fails because the statement they relied upon was not held to be a term of the main contract. It has

39、been held that for this to be successful, the statement must have been promissory in nature.,5. Alfred Thompson 'Tom' Denning, Baron Denning, OM, PC (23 January 1899 – 5 March 1999) was an English veteran of the

40、First World War, a mathematics graduate, jurist, judge and barrister. A native of Hampshire, he became a Law Lord and Master of the Rolls (the senior civil judge in the Court of Appeal of England and Wales).Lord Denning

41、 was a judge for 38 years before retiring at the age of 83 in 1982. Lord Denning instigated many important concepts that would become pillars of the common law and many more which would ultimately be rejected in the Hous

42、e of Lords (such as the doctrine of fundamental breach). He also made some famous (and infamous) decisions in his court over his long career, and is regarded as somewhat of a legend amongst law students for his witty, no

43、 nonsense judgments.,Exercises:,I. Reading Comprehension:1. What is a contract?2. In common law, what are the five key requirements for the creation of a contract?3. What is “concurrence of wills” or “meeting of the

44、minds” of two or more parties in a contract?4. Is the case of Carlill v. Carbolic Smoke Ball Co.an example of “bilateral contract”?5. What are the rules governing consideration?6. What is estoppel?,II. Phrase Translat

45、ion from English into Chinese:culpa in contrahendo unjust enrichment3. equitable doctrine4. unilateral contract5. breach of contract 6. Court of Appeal7. collateral contract8. invitation to tre

46、at9. statute of frauds10. applicable law of contract,III. Fill in the blanks with the words and expressions in the box.Contracts may be bilateral or unilateral. The more common of the two, a (1)________ contr

47、act, is an agreement in which each of the parties to the contract makes a promise or promises to the other party. For example, in a contract for the sale of a home, the buyer promises to pay the seller $200,000 in (2)___

48、_____ for the seller's promise to deliver title to the property.,exchange treatedoffereesatisfactioninsuredbilateralprecedentunilateral,In a (3)________ contract, only one party to the contract makes a promise

49、. A typical example is the reward contract: A promises to pay a reward to B if B finds A's dog. B is not obliged to find A's dog, but A is obliged to pay the reward to B if B finds the dog. In this example, the f

50、inding of the dog is a condition (4)________ to A's obligation to pay.An offer of a unilateral contract may often be made to many people (or 'to the world') by means of an advertisement. In that situation, a

51、cceptance will only occur on (5)________ of the condition (such as the finding of the offeror's dog).,exchange treatedoffereesatisfactioninsuredbilateralprecedentunilateral,If the condition is something that o

52、nly one party can perform, both the offeror and offeree are protected — the offeror is protected because he will only ever be contractually obliged to one of the many offerees; and the (6)________ is protected, because i

53、f she does perform the condition, the offeror will be contractually obliged to pay her.In unilateral contracts, the requirement that acceptance be communicated to the offeror is waived. The offeree accepts by performing

54、 the condition, and the offeree's performance is also (7)________ as the price, or consideration, for the offeror's promise.,exchange treatedoffereesatisfactioninsuredbilateralprecedentunilateral,The most

55、common type of unilateral contract is the insurance contract. The insurance company promises to pay the (8)________ a stated amount of money if a covered event occurs for which the insured pays premiums. Note that the in

56、sured does not make any promise to pay the premiums.,exchange treatedoffereesatisfactioninsuredbilateralprecedentunilateral,Supplementary Reading:,Origins of Contract lawContract law is sometimes described in len

57、gthy legalese diatribe, from which it is no easy task to excise a short, succinct and plain-language description.Another clarification is in order. The description given in this document is indicative of the common law

58、only. In many jurisdictions, laws have been implemented which directly alter the common law.,Contract law has come to us from common law and it is said that it is an offspring of tort law. Both contracts and torts give r

59、ise to obligations. But tort obligations are imposed by the law; it is not normally a choice one makes. Contracts, on the other hand, are a vehicle by which persons voluntarily create obligations upon themselves.,In some

60、 circumstances, you can contract your way out of tort liability. In addition, tort liability does not require consideration . A contract is made up of a promise of one person to do a certain thing in exchange for a promi

61、se from another person to do another thing. Contract law exists to make sure that people keep their promises and that if they do not, the law will enforce it upon them.,Contract law is based on several Latin legal princi

62、ples, the most important of which is consensus ad idem, offering and acceptance of each person’s contribution. So a contract requires an agreement between the parties. But not all agreements are contracts. Non-business,

63、religious, or charitable agreements are not always contracts. The same has been said of family or household agreements. In fact, there exists a common law presumption against such agreements being contracts, although thi

64、s presumption can be rebutted. Conversely, where an agreement issues from a commercial relationship, it will be presumed to be a contract.,Contract law is said to be a part of "private law". Some legal commenta

65、tors have described contract law as a miniature legal system which persons establish between themselves; the contract becoming binding upon them as a sort of private and self-imposed law. Thus, contracts are voluntary an

66、d require an "exercise of the will of the parties".,Additional information:,中國的合同法特征1．合同是雙方的法律行為，即需要兩個或兩個以上的當(dāng)事人互為意思表示（將能夠發(fā)生民事法律效果的意思表現(xiàn)于外部的行為）。2．雙方當(dāng)事人意思表示須達(dá)成協(xié)議，即意思表示要一致。3．合同系以發(fā)生、變更、終止民事法律關(guān)系為目的。4．合同是當(dāng)事人在符合法律規(guī)

67、范要求條件下而達(dá)成的協(xié)議，故應(yīng)為合法行為。合同一經(jīng)成立即具有法律效力，在雙方當(dāng)事人之間就發(fā)生了權(quán)利、義務(wù)關(guān)系；或者 使原有的民事法律關(guān)系發(fā)生變更或消滅。當(dāng)事人一方或雙方未按合同履行義務(wù)，就要依照合同或法律承擔(dān)違約責(zé)任。,合同可撤銷根據(jù)合同法等相關(guān)法律規(guī)定，以下情況，合同可以撤銷：（一）因重大誤解成立的合同；（二）顯失公平的合同；（三）因欺詐成立的合同；（四）因脅迫成立的合同；（五）乘人之危訂立的合同。,合同無效根據(jù)合同法

68、等相關(guān)法律規(guī)定，以下情況，合同無效：（一）一方以欺詐、脅迫的手段訂立的合同，損害國家利 益 ；（二）惡意串通，損害國家、集體或第三者利益；（三）以合法形式掩蓋非法目的；（四）損害社會公共利益；（五）違反法律、行政法規(guī)的強行性規(guī)定。,簽訂要約為當(dāng)事人一方向他方提出訂立合同的要求或建議。提出要約的一方稱要約人。在要約里，要約人除表示欲簽訂合同的愿望外，還必須明確提出足以決定合同內(nèi)容的基本條款。要約可以向特定的人

69、提出，亦可向不特定的人提出。要約人可以規(guī)定要約承諾期限，即要約的有效期限。在要約的有效期限內(nèi)，要約人受其要約的約束，即有與接受要約者訂立合同的義務(wù)；出賣特定物的要約人，不得再向第三人提出同樣的要約或訂立同樣的合同。要約沒有規(guī)定承諾期限的，可按通常合理的時間確定。對于超過承諾期限或已被撤銷的要約，要約人則不受其拘束。,承諾為當(dāng)事人一方對他方提出的要約表示完全同意。同意要約的一方稱要約受領(lǐng)人，或受要約人。受要約人對要約表示承諾，其合同即告