英美合同侵权法

1、Case discussi on 1. Mr. X is regular customer of Mr. Y,the owner of a bookstore. One morning, Mr. X went into Mr. Y s bookstore, looked at some books, and picked up a book. BecauseMr. X forgot bringing money with him, he promised Mr. Y that he would pay for the book the n ext day. Mr. Y agreed. Is t

2、here a con tract? If so, classify it within the types in this chapter. (Express con tract; uni lateral con tract; valid con tract; executor con tract) 2. Mr. X called a n eighbor and offered to sell her his computer n ext week for 200 dollars. If his n eighbor wished to accept, she could call back t

3、o him. The next morning, she called back and said she was willi ng to buy the computer. Is the con tract formed bilateral or un ilateral? Why? Bilateral con tract, because each of the con tract ing parties makes a promise. 3. While Mr. X was gardening in Mr. Y s yard, Mr. Y was reading a book at hom

4、e. The n Mr. Y stood by the win dow and watched Mr. X do the work once in a while. When Mr. X had finished the work. Mr. X asked Mr. Y to pay for his work. Do you thi nk there is an implied or a quasi con tract betwee n them? Why? Implied con tract 课本 7 Silenceis not an effective acceptanceunlessan

5、offeree takes the benefit of the offered services 1.If you offer to sell a friend a computer worth1000 dollars for 100dollars, your friend accepts the offer. Is there a binding agreement between you? Yes课本 53 2. Suppose Mr. X orally offered to sell Mr. Y a used car for 5000 dollars. Two days later M

6、r. X notified Mr. Y that the car was no Ion ger for sale. In that case, could Mr. X end the offer? Y es. Oral con tract 课本 100 页 3. Assume Mr. X sent a letter to Mr. Y offeri ng to sell a bicycle for 50 dollars. Mr. Y sent a return letter to Mr. X rejecting the offer. A week later Mr. Y decided to a

7、ccept the offer. Could Mr. Y accept the bicycle? No, the offer is terminated because of rejecting by the offeree Mr.Y .it is a new offer , Mr .Y is offeror; Mr.X is offeree. So Accepta nee Must Be Accepted Only by the Offeree Mr.X. 4. Suppose a man helped you pull your car out of ditch. After that,

8、you promised to give him 30 dollars for the help, and the man agreed. Would the promise be binding? No. Preexisting obligations. A promise to do something that one is already obligated-：not constitute consideration.课本 66页 Case discussi on: I.Suppose you were in duced to buy a sec on d-ha nd car. Bef

9、ore you bought the car the dealer stated that the engine had recently been rebuilt. Actually it had not. After you bought the car, you had engine troubles and the car stopped running. If you wan ted to break the con tract, what defe nse can you have? Misreprese ntati on. It is the creati on of an im

10、pressi on in the mi nd of ano ther pers on which is n ot in accord with the actual acts of the situatio n.当事人在订立合同的过程中 对另一方所作出的与事实不符的陈述。 (1) 要约的概念、构成要件(definition of offer elements of offer An offer to contract is a manifestation of intention to be presently bound by a series of definite and specifi

11、c term, which is communicated to the offeree and creates power in the offeree to accept. 1. Serious Intention 图严肃 To a reasonable person, the offeror did in fact intend to make an offer and to be presently bound by it. 在通情达理的人看来，要约人必须严肃认真地向受要约人发 出要要约，并且受其约束 2. Definiteness明 确性 An effective offer mus

12、t have definite terms 有效要约条款必须明确。 3. communication送达 (2) Termination of the Offe要 约终止 1. Lapse of Time寸效经过 An offer terminated automatically by law when the definite period of time or a reasonable time has passed 经过特定的一段时间或者合理时间后，要约自动终止。 2. Revocation by the Offero要约人撤销 The offeror has the legal rig

13、ht to withdraw an offer before it is accepted. 要约人有权在要约被承诺前撤销要约。 3. Rejection by the Offerees 要约人拒绝 The offer may be rejected by the offeree, in which case the offer is terminated. including a counteroffer and a conditional acceptance包括 反要约和有条件的承诺 4. Death or some legal incapacity 当事人死亡或丧失缔约能力 An of

14、fer terminates when either party dies or becomesinsane before acceptance. 5. Destruction of the proposed subject matt合同标的物灭失 (3) 承诺的概念、构成要件 definition: the offeree s manifestat ioteoition to be presently bound by the terms contained in the offer. 承诺是受要约人做出的立即受要约约束的意思表示 1. Acceptance Must Be Accepted

15、 Only by the Offei承若只能由 受要约人做出。 2. Acceptance Must Agree with Offer 承诺必须与要约一致 3. Acceptance Must Be Communicated to the Offe承 诺必须传 达给要约人 (4) 抗辩事由(defenses 1. M isrepresentation不 正当说明 definition: It is the creation of an impressionin the mind of another person which is not in accord with the actual a

16、cts of the situatio当 事人在订 立合同的过程中对另一方所作出的与事实不符的陈述。 2. Mistake 错误 definition:Mistatke is a belief that is not accord with the facts 当事人对构成交易的基础事实在认识上发生的错误。 3. Duress 胁迫 definition: It means the use of threats to bodily or other harm which are used to overcome a person s free will and induce the perso

17、n to enter a contract through fear or force 4. Undue Influence不 正当影响 definition: it is the use of a confidential relationship, in which one person owes another a duty to look out for the latter person s interests, and where the duty-bound person uses this position for personal benefit at the expense

18、 of the person to whom the duty is owed 5. Capacity of Partie締约能力 definition: Capacity is the ability to perform legally valid acts 6. Illegalit y 违法性 A contract is illegal if it violates law or is contrary to the public policy or interest. 合同违法或违反公共政策或利益。 7. Statute of Fraud反欺诈法 It requires that ce

19、rtain types of contracts must be in writing signed by the party to be bound and are not enforceable unless they are evidenced by such a writing. & Oral Evidence Rul口 头证据规则 (5)damages损害赔偿金 1. compensatory damages补偿性损害赔偿金 2. consequential damage间接损害赔偿金(lost profits ) 3. liquidated damage约定违约金 4. penal

20、ty damages惩罚性损害赔偿金 5. nominal damages象征性损害赔偿金 (6) Tort and CrimeS权和犯罪 Private Public law(against the society) law(against injure party) theinjured party bring an action The state prosecutes To protect the To protect the public individual interests Damages or specific performanceor injunction Impriso

21、n or fines Preponderance evidence of theProve beyond reasonable doubt Tort and breach of contra侵权和违约 Violation of one person legal duty Violation of self-imposed duty To place the palintiff as if thetort had not occured To place the plaintiff as if the contract had been perforr damages or injunction

22、 Damages or injunction or specific performance (7) Classifications of TortS权的分类 ? 1. intentional torts故意侵权 intention: the wrongdoer wanted to harm someone or knew that what did would result in harm.侵权人希望或者确信其行为会给他人 造成损害。 ? 2. negligence过失侵权 It is the unintentional causing of harm that could have bee

23、n prevented if the defendant had acted as a reasonable and prudent person ? 3. strict liability tort严格责任侵权 (8) Battery殴打的概念、构成要件 It is the intentional, unprivileged and either harmful or offensive contract with the person of another. ?故意地对他人的人身进行有害的或冒犯性的接触。 ? Elements: ?(1) An act by the defendant w

24、hich brings about harmful or offensive contact to the plaintiff s pers伤害性或冒cts 犯性的接触他人的行为 ?( 2)The defendant s intent to make such a co接tic的故意 ?( 3) The causation between the defendant act and the offensive or harmful touching of the plaintiff s person or effec 因果关系 (9)Assaul诚吓的概念、构成要件 It is an act

25、by the defendant creating a reasonable apprehension in the plaintiff for immediate harmful or offensive contact to the plaintiff s person通过一定的行为对他人进行恫吓，从而引起其对于即将来到 的殴打行为产生合理的警觉 ? Elements: ? (1)lntent to cause apprehension of contact 有使人产生警觉的故意 ? (2)Present apparent ability of the defendant to cause

26、 contact 立即进行殴打的实际能力 threatening gesture by the defendant 实际威胁行为 (3)Well-grounded apprehension of imminent unconsented contact有使人产生合理警觉 (10) 侵犯动产与侵占动产的区别 ?(1) Trespassto chattels Infringes a possessor interest in freedom from minor intentional interference with personal propert y. 故意地对他人动产权益的进行侵犯 (2

27、) lt occurs when a person intentionally exercises exclusive control over the personal property of another without permissidft 权人未经 允许，故意行使对他人动产的排他性占有权。 (3) The difference between trespass to chattels and conversion is a matter of degree .In justice of requiring the actor to pay the full value,the courts may consider various factors including the duration of time the defendant has exercised control over the property,the defendantsmotive and the harm done (11) Defenses to intentional tort 故意侵权的抗辩事由 ? 1(1)Consentby the plaintiff negatesthe wrongful eleme