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1、合同法 Contract LawTable of Contents1.Vocabulary P1582.Contract Law(1)Intention(订约意图)(2)agreement(协议)(3)consideration(对价)(4)capacity(订约能力)(5)consent(意思表示真实)(6)legality(订约目的合法)(7)form (合同形式合法)Contractlaw-Introduction Contract(合同合同)&agreement（协议）协议）to be distinguished -strictly speaking,contract is a com
2、bination of agreements and other compulsory requirements by contract law.-not every agreement leads to a legal contract,but a contract must contain a legally enforceable agreement.2022/11/166Contractlaw-IntroductionFormationofContractstype of contract contract elements Type of contractapparentsimple
3、contract(相当于合同的成立相当于合同的成立)(1)Intention(订约意图)(2)agreement(协议)(3)consideration(对价)Validsimplecontract(相当于相当于合同的生效合同的生效)(4)capacity(订约能力)(5)consent(意思表示真实)(6)legality(订约目的合法)(7)form (合同形式合法)2022/11/1673.1.2.Sources of Commercial Contract Law3.1.2.1 Domestic3.1.2.2 International convention3.1.2.3 Intern
4、ational practice about contracts P713.1.4 General Principles of Intl Commercial Contracts P722022/11/169Contractlaw-IntroductionContractsUnderSeal -also known as Deeds,must be completed in a particular way(form)in order to be valid,i.ein writing;signed by both parties;Witnessed;Sealed.2022/11/1610Ch
5、apter6-Contractlaw-Introduction SimpleContracts(简式合同）简式合同）KNot required to be in any particular form but are required to have consideration（对价）.Ksimple contract could be made either expressly Kor impliedly,orally or writing form.K There are statutes which require some simple contracts to be in writi
6、ng,eg.contract of real estates or evidenced in writing eg.bill of lading(提单).2022/11/1611Contractlaw-IntroductionAvoidable contract/Unenforceable contract/Void contract/Illegal contract Avoidablecontract（可撤销合同）:-remains valid until repudiated by a party Unenforceablecontract（不可强制执行的合同）:-valid on its
7、 face but no legal action can be brought on it.eg.Contract needs to be evidenced in writing,but no evidence could be presented.2022/11/1612Contractlaw-IntroductionVoidcontract（无效合同）:-no legal rights and duties .-Void contract is of civil nature relating to extreme unfairnessIllegalcontract（非法合同）:-it
8、 contravenes a statute and then treated as being void so there are no legal rights and duties.-Illegal contract is of criminal nature such as robbing a bank with a friend.2022/11/1613Contractlaw-IntroductionExpress Contract and Implied ContractExpressContract(明示合同明示合同)Terms of the contract expressly
9、 agreed upon in writing,orally or combination of both.ImpliedContract(默示合同默示合同)contract reached through acts or conducts of both parties,not through writing or words.2022/11/1614EssentialelementsofavalidcontractIntention to create legal relations.（订约意图）Offer and Acceptance-an agreement.（协议）Considera
10、tion.（合同须有对价）Capacity of the parties.（合同当事人须有订约能力）Genuine consent by the parties or Certainty of terms.(当事人订约意图真实 或合同条款真实 ）Legality of object(purpose).(合同标的或目的合法)In order to create a valid simple contract,certain essential elements must be present:2022/11/1615Contractlaw-Intention(step1)2022/11/1616
11、IntentionofthepartiestocreatelegalrelationsKThe parties must have intended to enter into a legally binding agreement.K2 types of agreements-Family/domestic or social agreements.-Business or commercial agreements.2022/11/1617IntentionofthepartiestocreatelegalrelationsTwo presumptions（推定）about legal i
12、ntention:Presumption one:it is presumed that parties to an agreement of a family/domestic or social do not intend to be legally bound eg:Cohen v Cohen(1929)2022/11/1618Intentionofthepartiestocreatelegalrelationsdomestic agreement-example Cohen v Cohen(1929)-husband promised to wife dress allowance b
13、efore the marriage,but after marriage,payments fell into arrears and when couple separated Mrs Cohen sued for that sum.courtheld:this was an ordinary domestic agreement-no intention;plaintiff was unsuccessful in her claim for breach of contract2022/11/1619IntentionofthepartiestocreatelegalrelationsT
14、wo presumptions about legal intention:Presumption two:it is presumed that parties to an agreement concerning commerce or business intend to be legally bound.2022/11/1620Intentionofthepartiestocreatelegalrelations-Rebuttal(推翻推定推翻推定)Eitherofthepresumptionscanberebutted(changed)whensomethinghappens.Eg:
15、ToddvNicol(1957)Eg:Rose&FrankCo.vJ.R.Crompton&BrosLtd1923 2 KB 261(“HonorClauses”)2022/11/1621Todd v Nicol1957-arebuttaltothepresumptionthatfamilyagreementsarenotcontracts.Facts:plaintiffs were promised a house by the defendant if they left Scotland to join her in Adelaide.The defendant broke her pr
16、omise after the plaintiffs went to great expense.Courtheld:the presumption could be rebutted in the circumstances due to the serious nature of the financial consequences involved.2022/11/1622 HonorClausesarebuttaltothepresumptionthatbusinessagreementsareintendedtobebinding themeaningof“HonorClauses”
17、are clauses that demonstrate the parties to the contract do not have intention to be legally bound in their contract made.example of honor clause:“this agreement is not entered into as a formal or legal agreement but it is only a definite record of the purpose and intention of the parties to which t
18、hey each honorably pledge themselves that will be carried through with mutual loyalty and friendly cooperation.”Rose&Frank Co.v J.R.Crompton&Bros Ltd 1923 2 KB 2612022/11/1623HonorClausesthelegaleffect（法律后果）法律后果）ofhonorclause:Contract containing an“honor clause”is not legally effective.The contract
19、is actually regarded as honorable agreement,which has no any legal binding force upon the parties,although the contract functions to promote both parties to carry it out morally.Therefore,“honor clause”in contract rebuts the presumption that agreements of a business nature are intended to be binding
20、.2022/11/1624Intentionofthepartiestocreatelegalrelations SummaryPresumptionone:anagreementofafamily/domesticorsocialdoesnotintendtobelegallybound,itisnotacontract.Rebuttal:when serious financial consequences were involved in it,it is a contract.Presumptiontwo:anagreementconcerningcommerceorbusinessi
21、ntendstobelegallybound,itisacontract.Rebuttal:when a business agreement contained“honor clauses”,it is not a contract.2022/11/1625Contractlaw-IntroductionContractlaw-Intention(step1)-END-OFFER-DEFINITIONAnoffer（要约）is a definite proposal,made with the intention that it will become BINDING on the pers
22、on making it,as soon as it is accepted.OFFEROR（要约人）要约人）=person making the offerOFFEREE（受要约人）受要约人）=person to whom the offer is made(if the offeree accepts the offer he will become accepter（承诺人）)2022/11/1626A statement for sale We would like to place an order with you for this type of steel,totaling 1
23、00 tons at todays market price of London Metal Exchange,other terms as per our agreement made before.This offer is subject to your acceptance by fax,reaching us before April 10th.Question:Is this an offer?2022/11/1627Contractlaw-agreement(step2)Offerrules8.3Rulesrelatingtooffer(1)The offer must be c
24、ommunicated to the offeree.(2)An offer may be made to an individual,a group of people,or the worldatlarge.See Carlill v Carbolic Smoke Ball Co.1893 (next slides)2022/11/1628CarlillvCarbolicSmokeBallCo.(1893)The defendants(Carbolic)advertised their smoke ball suggesting that anyone who became ill wit
25、h influenza after using it would be rewarded with 100 pounds.They claimed in the advertisement that the promotion was genuine since they had placed 1000 pounds in the bank to pay anyone out if necessary.Mrs Carlill used the smoke ball,became ill and sued for the reward.2022/11/1629CarlillvCarbolicSm
26、okeBallCo1893Courtheld:the offer was made to the world at large(general public)and any person reading the advertisement would have taken it as a firm offer,binding if accepted.2022/11/1630Contractlaw-agreement(step2)Offer-rules(3)The terms of the offer must be clear and definite.(4)an offer can be k
27、ept open to give an offeree a period of time to consider it.(5)request/supply of information is not an offer see:Harvey v Facey 1893(next slides)2022/11/1631Contractlaw-agreement(step2)Offer-requestforfurtherinformationHarvey v.Facey 1893-plaintiffs asked defendants how much they would like for thei
28、r property,the defendants replied describing lowest possible price.Plaintiffs took this to be an offer and sued when defendants said they did not want to sellCourtheld:Defendants reply was merely a supply of information not an offer.2022/11/1632Contractlaw-agreement(step2)InvitationstoTreat(ITT)(6)A
29、n offer must be distinguished from an invitation to treatKAn invitationtotreat(ITT)is a statement to others inviting them to make an offer.KExamples of invitations to treateg:announcementforauction(拍卖公告)(notice:bidding in auction 拍卖叫价)eg:noticeoftender（招标公告）2022/11/1633Contractlaw-agreement(step2)In
30、vitationstoTreat(ITT)eg:Goods on display（陈列在货架上的商品）price attached to goods is not an offer-it is an inducement to customers to consider buying the product.2022/11/1634Contractlaw-agreement(step2)InvitationstoTreat(ITT)GoldBlend(麦氏咖啡）麦氏咖啡）“How perfect,My three favourite things.”“Which are?”“Soft cand
31、lelight.”“Its more romantic.”“Gold blend.”“The only coffee to serve.”“And last”“last?”“Your undivided attention.”2022/11/1635eg:advertisements （商业广告）Generally speaking,advertisements are ITT,they are not the firm offer,they just want to induce the customers to make an offer to them.Contractlaw-agree
32、ment(step2)InvitationstoTreat(ITT)The presumptions regarding situations which are generally considered to be ITTs can be rebutted by using an objective test(looking at the facts of an individual case)2022/11/1637Contractlaw-agreement(step2)ITT-REBUTTAL-TESTTESTofDetermininganinvitationtotreatWhether
33、 a reasonable and impartial bystander would consider,in all the external circumstances,is that the maker of the statement intended to be bound by the terms of his statement if it were accepted or thatwhether he would say that it was merely made as an inducement to the entry into negotiations on the
34、matter.see Carlill v Carbolic Smoke Ball Co.1893 1QB2562022/11/1638CarlillvCarbolicSmokeBallCo.(1893)a rebuttal to the presumption that advertisement is an ITTThe defendants(Carbolic)advertised their smoke ball suggesting that anyone who became ill with influenza after using it would be rewarded wit
35、h 100pounds.They claimed in the advertisement that the promotion was genuinesince they had placed 1000pounds in the bank to pay anyone out if necessary.Mrs Carlill used the smoke ball,became ill and sued for the reward.2022/11/1639CarlillvCarbolicSmokeBallCo1893Courtheld:the offer was made to the wo
36、rld at large(general public)and any person reading the advertisement would have taken it as afirmoffer,binding if acceptedThis case leads to the classification of ordinary advertisement and reward for the public(悬赏广告）2022/11/1640Reward for the public（悬赏广告）When an advertisement offers a reward for in
37、formation that might lead to the arrest of a criminal or for the return of a lost article,it is regarded as general offer to the public at large.Acceptance of a public offer by anyone,as indicated by the performance of the act,results in an enforceable contract.2022/11/1641Anexampleofrewardforthepub
38、lic My book,“international business law”,was lost two days ago.Anyone who found it could get RMB 50 as a reward if he(she)returned it to me.Please contact me by 13813256799.Mary April 4th,2011 2022/11/1642Contractlaw-agreement(step2)ITT-REBUTTAL The presumptions regarding situations which are genera
39、lly considered to be ITTs(announcement for auction/notice of tender/goods on display/advertisements)can be rebutted by using an objective test(looking at the facts of an individual case)2022/11/1643 Contractlaw-agreement(step2)ITT-REBUTTAL-TEST Automatic selling machine is a rebuttal to the presumpt
40、ion that the goods on display are ITT Automatic selling machine makes the offer by presenting their goods on display to the potential buyer.When the buyer accepts the offer by putting money into the machine,contract is completed when goods rolls out.2022/11/1644ShortsummaryofofferandITTAn ITT is a p
41、artys intention to invite the other party to make an offer.Eg(1)ordinary advertisement(2)goods on display (一般货物陈列)(3)announcement for auction An offer is a partys intention to enter into a contract with the other party.Eg(1)reward(悬赏广告)(2)automatic selling machine(自动售货机)(3)bidding in auction2022/11/
42、1645Reconsideration of the example of a statement for sale“we would like to place an order withyou for this type of steel,totaling 1000 tons at todays price of London Metal Exchange,other terms as per our agreement made before.This order isopen for your acceptance by fax,reaching us before May 10th
43、our time.”Question:is this an offer?Why?2022/11/1646consideration of the changed example of a statement for sale“we would like to place an order with you for this type of steel,totaling 1000 tons at todays price of London Metal Exchange,other terms as per our agreement made before.This order is open
44、 for your acceptance by fax,reaching us before May 10th our time.Youracceptanceissubjecttoourfinalconfirmation.”Question:is this an offer?Why?2022/11/1647Contractlaw-agreement(step2)-end-2022/11/1648STEP2:AGREEMENTBETWEENTHEPARTIESAgreementAcceptanceP80ACCEPTANCE-DEFINITIONAcceptance is a final expr
45、ession of assent to the terms of an offer.Acceptance converts a promise by an offeror into an agreement.2022/11/1649STEP2:AGREEMENTBETWEENTHEPARTIESAgreement-AcceptanceRules of Acceptance(1)Only the offeree or its authorized agent can accept the offer.(2)Acceptance must be communicated see:communica
46、tionofacceptance2022/11/1650AgreementAcceptance-RulesCommunicationPPoint 1:Pcommunication of the acceptance could be expressed by writing/words/conduct.PPoint 2:PGenerally,the“acceptance”,is ineffective until it has been received by the offeror.PEg.silenceisnotacceptancePSee next slide:Felthouse v B
47、indley 1862 Communicationrefer to rule(4)2022/11/1651STEP2:AGREEMENTBETWEENTHEPARTIESAcceptance-communicationFelthouse v.Bindley(1862)-Felthouse wrote to nephew offering to buy a horse.In the letter Felthouse told his nephew that if he did not get a response he would consider the offer accepted.Cour
48、theld:nephews acceptance had not been communicated,therefore horse did not belong to Felthouse.2022/11/1652Point 3:Exceptionally,Acceptance by post(投邮)(letter/telegram)becomes effective once the acceptance is posted,regardless of whether the acceptance is delayed or lost in the postal system.(This i
49、s for common-law countries.What is the rule in civil-law countries?see next slide:Adams v Lindsell 1818STEP2:AGREEMENTBETWEENTHEPARTIEScommunication-ThePostalRule2022/11/1653STEP2:AGREEMENTBETWEENTHEPARTIESAcceptance-PostalruleAdams v.Lindsell(1818)-Defendant sent a letter to plaintiffs offering to
50、sell wool and required a response by post.The offer was delayed in the mail but eventually received.Plaintiffs posted an acceptance but defendants had already sold the wool to someone else before he received the acceptance.Courtheld:acceptance took place at the exact moment when the letter of accept