法律英语案例.doc

目录第一讲 合同与其他债1案例1：合同之债与其他债-不当得利1第二讲 意思表示和许诺的作出3案例2：诺言的存在-确定性3案例3：诺言的存在-担保与见解5第三讲 合同的订立8案例4：合同的订立8第二节 要约12案例5：要约与要约邀请12案例6：谁是要约的主人16案例7：要约的可撤销与不得自食其言20第四讲 合同的效力23第一节 对价23案例8：对价-原有的义务24案例9：过去的对价25案例10：效力-合法性28案例11：效力-合法性-分解合同31第三节 可撤销的合同32案例12：效力-欺诈32案例13：效力-胁迫39案例14：效力-不正当影响42案例15：效力-缔约能力45案例16：效力-共同错误48案例17：效力-未成年人的撤销权51第五讲 合同的内容56案例18：合同的解释56Presentation要求：1、 每个人预计上台讲解时间为15-30分钟，根据案例的长短和人员的个数略有差别。请合理安排时间。2、 内容包括案例分析和回答讨论题。案例分析的格式老师在课堂上已经讲过，按照书后面的案例分析格式，中英文均可，只要有利于表达就好；回答讨论题也是中英文均可。3、 讲解的辅助工具是PPT，案例分析需要，回答问题同样需要。字体不能太小，以免同学看不见。4、 仔细阅读案例，并重点研究老师划了颜色的文字，老师会不定时的针对案例的具体情形提问。5、 除了自己负责的案例，其他同学讲解的案例也要提前预习。老师也会提问其他同学，这样有利于大家知识的积累和系统化。第一讲 合同与其他债【教学目的和要求】掌握合同的相关概念，区别合同之债与其他债券债务关系。【教学时数】 约2学时案例1：合同之债与其他债-不当得利 Beley v. Ventura County Municipal Court Court of Appeal, Second District, Division 5, California.100 Cal. App. 3d 5December 17, 1979ASHBY, J.Real party in interest Gerry Harmsma (hereinafter Seller) is a building contractor who brought an action in the municipal court to recover for services performed and material furnished in remodeling the home of appellants John and Lorraine Beley (hereinafter Buyer)On June 10, 1977, the parties executed a contract, at the home of Buyer, for the remodeling of Buyers home. The contract price was $11,689 and the work was to be completed by August 15. . The work was not completed on time, and on November 10, 1977, Buyer gave written notice that the contract was canceled.Buyer moved for summary judgment, contending that the contract was a home solicitation contract (Civ. Code, 1689.5) which did not contain the mandatory notice of Buyers right to cancel within three days ( 1689.7); that Buyer therefore had the right to cancel at any time prior to Sellers giving the required notice ( 1689.7, subd. (e); that Buyer canceled the contract on November 10, 1977 ( 1689.6); and that Seller was entitled to no compensation for the services performed ( 1689.11, subd. (c). ( Weatherall Aluminum Products Co. v. Scott, 71 Cal.App.3d 245 139 Cal.Rptr. 329.) Buyer also sought the return of the $8,566 Buyer had paid to Seller. Although the home solicitation contract statute was enacted in 1971 primarily to protect residents from the high-pressure techniques of door-to-door salespersons, it was interpreted in Weatherall Aluminum Products Co. v. Scott, supra., 71 Cal.App.3d 245, 248 (decided shortly after the execution of the contract in the present case) to apply to contracts entered in the home, even where the buyer had telephoned the seller and invited him to come to the home. Thus, under Weatherall, the instant contract was a home solicitation contract. Because the instant contract did not contain the required notice giving the Buyer a right to cancel within three days, the statute technically extended indefinitely (until the Seller complied with the notice requirement) the Buyers right to cancel (Civ. Code, 1689.7, subd. (e).) Here Buyer exercised this statutory right to cancel, but only after Seller had apparently substantially completed the job. Buyer argues that the statute gives Buyer the right to retain all the substantial benefits conferred by Sellers performance without paying anything at all for them. We disagree. .Although Buyers statutory cancellation gives Buyer a defense to Sellers first cause of action on the contract, Seller has also alleged in his second cause of action a quantum meruit quasi contractual theory for recovery of the reasonable value of the benefits conferred on Buyer by Sellers performance. (See 1 Witkin, Summary of Cal. Law (8th ed. 1973) Contracts, 49, p. 60.) Although the statute gives Buyer a right to avoid the written contract, there was nothing illegal or immoral about the contract itself or the nature of the services and materials to be furnished under it. (See Trumbo v. Bank of Berkeley, 77 Cal.App.2d 704, 709-710 176 P.2d 376.) Therefore, even though Seller could not recover on the express building contract, Seller is entitled to recovery on quantum meruit for the reasonable value of the improvements Buyer has received. ( Sims v. Petaluma Gas Light Co., 131 Cal. 656, 660 63 P. 1011.)Nothing in Weatherall Aluminum Products Co. v. Scott, supra., 71 Cal.App.3d 245, precludes such equitable adjustment of the rights and duties of the parties. There is no indication in that opinion that the seller in that case raised an equitable quasi contractual theory for the reasonable value of benefits conferred, as distinguished from an action on the contract. Nor does Civil Code section 1689.11 preclude Sellers quasi contractual recovery. .This case does not involve an attempt to evade the statute or to pressure the buyer by the performance of a small portion of the contract within the first three days. Here we have a large building contract which was substantially completed over a long period of time before Buyer exercised Buyers technical right under the statute to cancel. It would be grossly inequitable to interpret the statute to mean that Seller gets no compensation even though Buyer has the benefit of several thousand dollars worth of home improvements. Of course, in determining the reasonable value of the benefits conferred on Buyer, the court can also take into account the damages suffered by Buyer from the incomplete, delayed or improper performance of the job.The judgment is affirmed.Stephens, Acting P. J., and Hastings, J., concurred.讨论题：1. 本案双方争议的焦点是什么？2.在本案中，加州的民法典赋予了“买方”（被装修房屋的房主）什么权利？该方基于什么事实可以行使该法赋予的权利？3. 买方是在卖方（装修房屋的一方）已经实质性地完成了其装修工作之后宣布解除合同的。这一事实对本案判决有什么影响？4. there was nothing illegal or immoral about the contract itself or the nature of the services and materials to be furnished under it. 这一事实有什么重要性？5. 本案所运用的或确定的法律规则是什么？6. 请结合Harry Schott案（案例一）和本案的情况，思考“公正考量”在决定合同一方的行为是否构成不当得利时起的作用。第二讲 意思表示和许诺的作出【教学目的和要求】了解一项对表意人产生约束力的许诺在何种情况下会发生。【教学时数】 4学时案例2：诺言的存在-确定性Milic Pesovic v. Svetozar Pesovic Appellate Court of Illinois, First District, Second Division.10 Ill. App. 3d 708, 295 N.E.2d 261March 13, 1973LEIGHTON, Justice:This was an ejectment suit by a father, the appellee Milic Pesovic, against his son, appellant Svetozar Pesovic, in which Milic sought to evict Svetozar, his wife and their three minor children from a house in Chicago. In an answer that evinced a bitter family dispute, Svetozar interposed the defense that Milic had either made a contract to convey the house to him or had given him the house as an oral gift of land.The issue in this appeal is whether the evidence in this record proved that the house had been the subject of either a contract to convey or an oral gift by Milic Pepovic to his son Svetozar.I.Milic Pesovic came to this country from Yugoslavia in 1950. He left a family that included Svetozar. Milic became an American citizen on June 21, 1956. In July 1957, having paid $7500, he received a warranty deed to a six-room house situated in Chicago at 10041 South Exchange Avenue.In 1957, because of his political views, Svetozar was incarcerated in a Yugoslav prison. He escaped and became a political refugee in Greece. With the aid of the United States and Greek governments he was joined by his wife and children. Until the middle of 1959, Svetozar lived in the Greek city of Florina employed by the Greek army as a driver in a motor pool. Life there was good and living standards were quite comfortable.Sometime during the last half of 1958, Milic Pesovic began corresponding with Svetozar urging him to come to this country with his family. In a letter written in Serbian, Milic told Svetozar that (w)hen you come to me I will dress up and shoe you and your family. I promise you that I will buy everything you and your family need. When you arrive here to me I will need a lot of money to shelter you and your family. In the closing sentence, Milic asked Svetozar to tell his wife and children that they will have their own home. Earlier, to assist Svetozar in his application to immigration authorities, Milic executed an affidavit in which he said that he lived in Hammond, Indiana; that he was regularly employed by the Youngstown Sheet and Tube Company as a mechanics helper earning more than $500 per months; that he desired to sponsor Svetozars immigration from Florina, Greece to this country; that if an immigration visa were granted him, he, Milic, undertook to see that Svetozar would not become a public charge in this country; that he would furnish Svetozar with food, clothing and other necessities of life; that he would obtain employment for Svetozar in local industry; that he had adequate housing and accommodations for Svetozar when he arrived in this country; and that he would help Svetozar become established in the American way of life. In other letters written by him to Svetozar, Milic urged his son to leave Florina, Greece and come to the United States with his family.Prompted by these urgings, Svetozar, sometime in the latter half of 1959, brought his family to this country. First, they lived with Milic in Hammond, Indiana. Then, a short time later, Milic gave them possession of the house in Chicago. They lived there for about one year when Milic began demanding rent from Svetozar. He refused to pay and moved his family out of the house. In December 1961, Svetozar suffered a serious industrial accident. He demanded of Milic the support and assistance which Milic had promised in his letters and in the affidavit prepared for immigration authorities. Milic refused. In March 1964, Svetozar became an American citizen. On November 25, 1964, he filed a chancery suit against Milic in which he alleged the inducements Milic had made in persuading him to emigrate from Greece to this country with his family. Svetozar prayed that the court order Milic to convey to him the house in Chicago and pay him damages in the sum of $10,000.II.Specific performance of a contract to convey land requires one that is unambiguous, complete in its terms and clearly prove. ( Gabrenas v. Romanecki, 331 Ill. 95, 101, 162 N.E. 161.) The contract cannot be partly written and partly oral. ( Kopprasch v. Satter, 331 Ill. 126, 127, 162 N.E. 141; Weber v. Adler, 311 Ill. 547, 143 N.E. 95.) And it is not enough to show that some kind of contract existed between the parties; it must appear that the contract was certain in all its terms so that a court can specifically enforce it. To be specifically enforceable, a land contract must point out the land to be conveyed or furnish the means of identifying the land with certainty. ( Crocker v. Smith, 366 Ill. 535, 537, 9 N.E.2d 309.) It must not be indefinite. Neither Milics letters to Svetozar nor the immigration affidavit he furnished contained terms that were definite, certain and complete. In fact, they did not disclose a contract for the conveyance of land which a court of equity could enforce by specific performance.Certainly, they did not mention the house in Chicago, although Milic was then its owner. Carefully read, those letters and the affidavit did nothing more than express the heartfelt desires of a father that his son come to this country and improve his lot in life. Therefore, the evidence in this record did not prove a specifically enforceable contract to convey land.Nor did the evidence prove that Milic gave Svetozar the house in Chicago as an oral gift of land. One who claims to be a donee has the burden of proving all the facts essential to a valid gift. ( In re Estate of Jarmuth, 329 Ill.App. 619, 630, 70 N.E.2d 336.) To prove a valid gift, the evidence must show delivery to the donee with intent of the donor to pass title absolutely and irrevocably and relinquish all present and future dominion over the gift. ( In re Estate of Waggoner, 5 Ill.App.2d 130, 137, 125 N.E.2d 154.) A gift that is capable of legal conveyance but is not made the subject of a conveyance is revocable. Affirmed.STAMOS, P.J., and SCHWARTZ, J., concur.讨论题：1. 按照本案法院的观点，由原告（父亲）向被告（儿子）转让房产的合同成立了吗？2. 本案判决运用或创立的主要规则是什么？3. 本案法院陈述的对被告的辩护不予支持的理由有哪些？案例3：诺言的存在-担保与见解Lovington Cattle Feeders Inc. v. Abbott LaboratoriesSupreme Court of New Mexico97 N.M. 564 (1982)Feb. 24, 1982SOSA, Senior Justice Plaintiffs, Lovington Cattle Feeders, Inc., and Buddy Taylor (Taylor), purchased AMDAL vaccine directly from Great Plains Chemical Company, who had purchased the product from Abbott Laboratories. The vaccine was to be used to immunize cattle against the diseases of infectious bovine rhinotracheitis (IBR), bovine virus diarrhea and parainfluenza. Although the plaintiffs had inoculated their cattle with the vaccine in 1974, there was a major outbreak of IBR in their feedlot which killed some cattle and caused weight loss and sickness in others. As a result, plaintiffs brought suit against Great Plains and Abbott Laboratories alleging that the AMDAL vaccine was defective and had not performed as represented. Subsequent to denying Abbott Laboratories motion for directed verdict, the trial court submitted the case to the jury on the theories of breach of express warranty, breach of the implied warranties of merchantability and fitness for a particular purpose, and strict liability in tort. Great Plains was dismissed from the suit before the case went to the jury. The jury returned a verdict awarding plaintiffs $100,000.00. Abbott Laboratories appealed. The Court of Appeals (Sutin, J., dissenting) reversed, holding that the trial court erred in denying Abbotts motion for a directed verdict. The requirements for creation of an express warranty are set forth in Section 55-2-313, N.M.S.A.1978: (1) Express warranties by the seller are created as follows:(a) any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise; (b) any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description; (c) any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.(2) It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the sellers opinion or commendation of the goods does not create a warranty. (1) Whether there was an affirmation of fact by the seller is a fact question.Id., comment 3.All of the circumstances of a sale are to be considered when determining whether there was an express warranty or a mere expression of opinion.King v. Ohio Valley Terminix Co., 309 Ky. 35, 214 S.W.2d 993 (Ct.App.1948).At trial, plaintiffs contended that Taylor had decided to buy AMDAL from Abbott Laboratories because representatives of Abbott Laboratories and Great Plains had represented the product to him as “superior” to the product he used. Before switching to AMDAL, Taylor had used various vaccines, the last of which was BOVAPLEX. While using the various vaccines, 98 percent of the cattle Taylor inoculated did not contract the disease IBR. Taylor testified that he was confronted on different occasions by representatives of Great Plains and Abbott Laboratories who wanted to induce him to change his vaccine and to use their product. Before ultimately deciding to switch to the AMDAL vaccine, Taylor met with Herman Sanders of Great Plains and Phil Graves and Dr. Myron Brown, both of Abbott Laboratories. During the course of their conversation, the representatives asked Taylor what kind of vaccine he was using, and then explained to him that they had a good vaccine, a superior vaccine, and that they could call on him and supply him regularly with the vaccine. Abbott Laboratories, however, argues that any representation that the vaccine was a “superior” product is nothing more than “puffing” and, as such, does not rise to the level of an express warranty. We do not agree.(2) Generally, when a seller asserts a fact of which the buyer is ignorant, and the buyer relies on the assertion, the seller makes an express warranty; but, when the seller merely states his opinion or his judgment upon a matter of which the seller has no special knowledge, or upon which the buyer may be expected to have an opinion and exercise his judgment, then the sellers statement does not constitute an express warranty. Scovil v. Chilcoat, 424 P.2d 87 (Okl.1967).Even if the representatives statement amounted to an opinion, the opinion amounts to a warranty if the statement became a part of the basis of the bargain. s 55-2-313, comment 8; Hauter v. Zogarts, 14 Cal.3d 104, 534 P.2d 377, 120 Cal.Rptr. 681 (1975). Here, there was evidence that Abbott Laboratories representation that AMDAL was as effective as the vaccine Taylor was using did, in fact, become a part of the basis of the bargain. But for the fact that Taylor relied on the representations that the AMDAL vaccine was as effective as the product he was using, and the fact that Great Plains could better serve him, Taylor would not have purchased AMDAL. The trial court did not err in denying Abbott Laboratories motion for a directed verdict on the issue of express warranty.The Court of Appeals is reversed, and this cause is remanded to the trial court to enter judgment in favor of plaintiffs for $100,000.00.IT IS SO ORDERED.讨论题：1. 初审法院指示陪审团根据什么理论进行了裁定？2. 新墨西哥州的制定法规定的使“明示担保”（express warranty）成立的情况有哪些？确定此种担保是否成立的意义是什么？为什么关于“货物价值”（the value of the goods）的表述不构成明示担保？3. 为什么说，当卖方所陈述的是一种买方并不了解的事实而买方对该陈述产生依赖时，该陈述通常会构成明示担保。4. 见解（opinion）与担保的区别是什么？本案运用的规则之一是，当