英美契约法-教学大纲

1、英美契约法教学大纲课程编号： 100472B课程类型：通识教育必修课 通识教育选修课专业必修课专业选修课学科基础课总学时： 36 讲课学时：实验（上机）学时：学 分： 2适用对象：法学 先修课程：合同法一、 教学目标（黑体，小四号字） 本课程的教学目标是培训学生阅读和总结美国法院系统案件。 本课程采取中英双语教学， 采取的教材是美国合同案例。 学生在学习完本课程后， 应对美国法 学院训练和学习方法有较为深入了解， 并为以后阅读美国法院系统案例做一定准 备。二、 教学内容及其与毕业要求的对应关系（黑体，小四号字） 本课程内容主要包括五个部分： 合同形成、 阻碍合同成立的法律理由、 合同解释、阻碍

2、合同履行的理由和违约责任。本课程采取的教学方法是案例阅读，老师将在课堂上辅助学生做案件总结。 由于涉及大量英语词汇，所以，本课程将对英语有较高要求。在课前，学生要求预习并做案件总结； 课堂上， 将以某小组学生的作业为蓝 本，大家分析和评价；课后，对已经完成的案件进行总结和复习。本课程将辅助学生熟悉美国法院案件的阅读方法， 可以帮助学生应对国际经济交往的法律需求。三、各教学环节学时分配（黑体，小四号字）教学课时分配WeekSchedules1Joseph A Lon erga n v. Albert Scol nick2Fairm ount Glass Works v. Grunden-Mart

3、 in Woode nware Co.Dick inson v Dodds3Minn esota Lin seed Oil Co. v. Collier White Lead Co.Carlt on G. Beall v. Cecelia M. Beall4Board of Con trol of Eastern Michiga n Uni versity v. BurgessLa Salle Nati onal Bank v. BegaEver-Tite Roofi ng Corp. v. Gree n5Test Date: Word and Read ing TestDate of Del

4、iveri ng Your Casebrief: From Fairmout to La Salle Nati onal Bank v Bega6Sherwood v. WalkerRuth S. Halpert v. Marti n G. Rose nthal7Natalie Wein traubv. Don ald P. KrobatschAusti n In strume nt, Inc. v. Loral Co.An Evaluati on of a Con tract8R.R. v. M.HDate of Delivering Your Casebrief: From Sherwoo

5、d to Austin Instrument v. Loral Co.9Valley Medical Specialists v. FarberKirksey v. Kirksey10Schn ell v. NellTest Date: Word and Read ing Test11A Negotiatio n And Drafti ng of a Con tractDate of Delivering Your Casebrief: From R.R. v M.H to Schnell v. Nell12Dale Warren Dyer v. Natio nal By-Products,

6、I nc.Alaska PackersAssv. Domenico13Wood v. Lucy, Lady Duff-Gord onThe Sin ger Compa ny v. E. I. du Pont de Nemours and Compa ny14Fran cis T. West v. Un ited States Postal ServiceTaylor v. CaldwellPaton v. Mid-Co ntinent Systems15Test Date: Word and Read ing TestDate of Delivering Your Casebrief: Fro

7、m Dale Warren Dyer to Taylor v Caldwell16Michael E. KVASSAY v. Albert MURRAYHawki ns v. McGee17Prese ntati on and Casebrief of the Case You Have Chose nDate of Deliveri ng Your Casebrief: From Pat on to Hawki ns v McGee四、教学内容(黑体，小四号字)ChapteM.Con tract Formati on -has a con tract bee n formed?a.basic

8、ally K requires offer and accepta nee of that offer. parties must somehow in dicate their asse ntto be bound by the K. whe n this is lack ing there will be no K.1.20-(1) no mutual asse nt if parties attach materially differe nt meanings uni ess (2)one party knows or has reas on to know of the other

9、meaning -the n use that meaninga.meet ing of minds is sufficie nt but not n ecessary to create K un derb.See Raffles v Wichelhaus (Peerless Case) no meet ing of the mi nds = no K to be enforced.c.consider prior dealings, trade customs, Ianguage / terms of K, etc. in con sideri ng whatmeaning parties

10、 should have attached.2.reas on able pers on sta ndard: objective test: what reas on able pers on can infer fromobjective actions about what party inten ded.a.EX: if reas on able pers on would un dersta nd there to be a K, and party subjectively doesso un dersta nd, the n there is meeti ng of minds

11、and a K.b.donn eed a true meeting of the minds where subjective intent of bothparties matches (20)b.Offer and Accepta nee1.What con stitutes an offer (as opposed to in itiati on or eleme nt of barga in)?1.con sider surrounding circumsta nces-advertiseme nts or circulars gen erally not considered off

12、ers; con sider reas on able pers on sta ndard -is it reas on able to view it as an offer?2.gen erally price quotati ons are not offers -it is the order itself that con stitutesthe offerii.Is there actual acceptanee (before revocation or is purported acceptanee really a coun teroffer)?1.offeror is ma

13、ster of the offer: valid accepta nee depe nds on terms of the offera.31 rebuttable presumption in favor of bilateral K-acceptanee presumed to requirepromise to performb.2-206(1) -offer may be accepted by any reas on able medium give n the circumsta neec.sometimes (i.e. recurri ng tran sact ions) com

14、me nceme nt of performa neecounts as accepta need.rati on ale: promote efficie ncy -start perform ing rather tha n have added stepof formal accepta nee. one of promises in bilateral K may be implied promise.2.Opti on Con tractsa.25 basic option K-limits promisors power to revoke an offer; may be mad

15、ein same K or in a collateral K. must have separate con siderati on for the opti on.b.87(2卜K which offeror reason ably expects to in duce relia nee by offeree before acceptanee and does in duce relia nee is binding as opti on K to exte nt n ecessaryto avoid injustice.3.Acceptance of a Unilateral K20

16、a. acceptance requires complete performanceb. but45-Un ilateral Optio n Con tract: treats comme nceme nt of perf. as conferring an option K on offeree -right to complete perf. Offer becomes irrevocable on the part of offerori.offeror not bound to perform until complete perf received; only obligedto

17、hold offer open1.offeree is not bound to completely perf.-bilateral K not created by452.if partial performance makes offeree worse off that is too bad - he has no right ofaction, should have requested a bilateral K.ii.preparation to perform and commencement of performance is a judgment call.4.Mailbo

18、x Rule -63-default rule that acceptance is effective once out of offerees possession, notupon receipt by offeror. but: If offeror explicitly requires receipt of acceptance or a different form of acceptancethen this is controlling.iii.Valid offer and acceptance constitute a binding agreement-note: di

19、scuss whether a bilateral orunilateral K is createdChapter II. Is it the deal that law will enforce?1.Mistake and Impossibility-implied excuse doctrines; excuse performance by voiding the K.a. Mistake-separate real mistake (voids K) from misjudgment (no legal remedy)1.1. close line between mistake a

20、nd misjudgment (or even calculated risk);2.if that risk is assumed (i.e. that the cow might not be barren is considered in K price) thenmistake cannot be used as a defense.ii. unilateral mistake: also renders K voidable provided the mistaken party was not allocated risk of mistake;exception if the o

21、ther party did not know or have reason to know of the mistake and has relied on it.iii. lack of complete information does not necessarily invoke the mistake doctrine; if better-informed partyhas made expenditures to acquire information then they are entitled not to disclose it. rationale: want toenc

22、ourage / reward information gathering.iv.Similarity to Hadley:1.only hold parties responsible for what they contemplate2.i.e. foreseeable expectation damages (Hadley); conditions / states of the world for which risk hasbeen explicitly allocated (mistake)2.Consideration and the Bargained-for Exchange

23、-a. what is the nature of the bargain?i.17-enforceable K requires bargain and consideration, except where“special rules”apply1.bilateral K-exchange of promises or promise for a promise.2.unilateral K-exchange of a promise for a performance3.3presumption favors bilateral K in case of ambiguityii.71-t

24、o count as con sideratio n a performa nee or return promise (in duceme nt required) mustbe bargained for (quid pro quo requirement). bargain theory of liability.iii.19Promise n eed not be in writi ng (in acts”ok)b. Promises to Make a Gifti.Bargain and consideration found?1.if yes the n gift promise

25、is en forceable (see Hamer v Sidway-givi ng up legalright = consideration)2.if no then promise may still be enforceable under90a.see Ricketts v Scothorn-relianee was induced by gift promise.(reasonable reliance)b.c.f. Kirksey v Kirksey -widow moves to step-brothers house; promise did not seek to ind

26、uce that relia nee (movi ng) so no no reas on al(relia nee.3.if no (and no reliance) and promise merely a gratuity then not enforceable.ii.Generally: gift promises not enforced with some exceptions; desire is to effectuate intent of theparties.1.Nominal consideration (i.e. $1 in hand paidcan be used

27、 to make donative/giftpromises enforceable2.adequacy of consideration is not evaluated by court; existence (not equality) of bargain iswhat mattersc.Reliance and Promissory EstoppelChapter 3 Interpretation: What are the terms of the contract?a. what have the parties promised each other?i.201(1if par

28、ties agree on interpretation of K Ianguage then that is what is used,regardless of what seems reasonable to 3P. If parties do not agree on interpretation (even if 3P thinks theydo/should) then neither is bound by the understanding of the other (unless one party had reason to know ofthe others interp

29、retation).ii.generally: emphasize a subjective, party-oriented approach in rules to K interpretation. rely ongeneral good senseb.The Parole Evidence Rulei.When to Use: PER does not apply to subsequent agreements-only applies to prior orcontemporaneous agreements (written or oral) that seek to establ

30、ish legal enforceability of a promise.ii.213-a written agreement that is completely integrated (i.e. final expression under209)andbinding discharges all prior or contemporaneous agreements (oral or written) w/in its scope or inconsistentw/ it.1.judge determines whether or not the agreement is integr

31、ated and thus whether to allowparol evidence.2.admission of parol evidence only if (a) agreement is collateral in form (i.e. capable ofexpression in a separate agreement; not w/in the scope) and (b) the writtenK is not fully integrated.iii. In tegrati on: Complete vs Partial (see Mitchell v Laith ic

32、e house removal case)Chapter 4 Excuse from doing what had been promised1. Conditionsi. Express ConditionsConditions Precedent vs Conditions Subsequent1.Condition Precedentmust be met in order for any obligations to be imposed on parties.(see Gray v Gardenerwhale oil case; must be strict performance

33、before obligation to pay arises)2.Condition SubsequentK in effect but if condition met then remainingobligations are discharged.“discharges a preexisting obligation”3.227 - unclear conditions will be interpreted so as to reduce the risk of forfeiture andminimize reliance losses.4.General points:a.st

34、rict performance required: express condition must be 100% satisfied before dutyarises (c.f. constructive conditionssubstantial performance). no doctrine of substantialperformanceb.burden of proof2 Frustration of Purpose(1) .similar to impossibility, if supervening events frustrate the K or substanti

35、ally decrease its value then Kis unenforceable (Krell v Henry)(2) consider: is the K really frustrated or was the event unlikely but not unimagined and,thus, the risk of its occurring allocated (See American TradingSuez Canal); if risk allocation isnot specific consider which party is in the betterC

36、hapter 5. How does the law enforce the deal?a. Expectation Damagesi.rationale: forward looking as well as remedial; need to provide security for potential / futurecontracting parties as well as give the currently injured party the benefit ofhis bargain.ii.default rule of damages: put the non-breachi

37、ng party in as good a position (not betterthat isunjust enrichment) as if K performed.1. calculation of damages:a.Basic Calculation:347(a) value lost due to other partybrseach (lost profit) + (b)value of reliance expenditures(c) cost avoided through non-performanceb.UCC: 2-712 (buyer breach) or 2-70

38、6 (seller breach)damages are equal to the costof cover (incidental + consequential damages)i. 2-715: incidental damages = costs incurred in rejecting goods, effecting cover;consequential damages = injury / lost profits the result of breach.c.348 Other Possibilities if347 cannot be calculated:i. Cost

39、 of Performance when that cost is calculated into initial K price. (See Groves vJohn Wunder -leveling/grading case; Great Depression - $60K v $12K)ii.Difference in market valuation when breach is not material or if cost ofperformance cannot be justified. (See Jacobs & Young) this is the default

40、calculationiii.if no idiosyncratic valuation and cost of completion is efficient then these twomeasures should be very similar.2.Three Rationales for Expectation Damages (see policy section for more):iii.Damages or Specific Performance1.specific performance only if the K involvesuniqueproperty (i.e. real estate) or idiosyncraticvaluation or the particular mode of breach is expressly addressed in the Ka.damages are the default -rather compensate with money than performanee.b.uncertainty as justification: if canlate expectactaiolcnudamages (or place avalue on performanee -i.e