合同法法中的Consideration（约因或对价）.ppt

1、Unit 3 Consideration （约因或对价 ）,约因是英美法中一个重要而且复杂的概念。对确定一个合约是否有效，包括商贸活动中常有的事后更改合约(variation)，追加协议（additional agreement), 和解协议等是否有效，非常重要。 英国法律认为约因是“订约双方愿意去受法律约束的唯一证据” ( only evidence of the intention of the parties to be bound ),Whats consideration,法律上认可的对价（约因）的定义：“ 对受诺人有损失，或对承诺人有利益 ”A valuable considera

2、tion, in the sense of he law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. 约因要有价值，一般最常见的是金钱。但也可以是其他的形式，如权益的放弃，提供服务或消息，修改原先合约，以后的生意，及可以想象到的“好处”。,Adequacy of C

3、onsideration,General Rule: The first rule of the doctrine教条 of consideration is that consideration must be sufficient but it need not be adequate. It means that as long as the promisees act or promise satisfies the legal value test, the courts do not ask whether that act or promise was worth what th

4、e promisor gave, or promised to give, in return for it.,Moral obligation,Case: White v. Bluett A son promised not to bore his father with complaints about the fathers distribution of his property among his children was held not to be good consideration for the fathers promise not to sue the son. The

5、 opposite case: Hamer v. Sidway: an uncle promised to pay his nephew 5000 if the nephew refrained from drinking liquor, using tobacco, swearing and playing cards untl he was 21. This promise was held to be enforceable because the nephew had a legal right to engage in such activities, and in giving u

6、p his rights he had provided consideration for the promise.,Preexisting Legal Duties,1) The question whether performance of a duty which one is already under an obligation to perform can constitute consideration for a promise given in return is currently a very controversial one in English contract

7、law. 2) The orthodox传统的 position is clear: performance of an existing duty imposed by law does not constitute consideration. 3) case: Ward v. Byham.,Preexisting Contractual Duties,Until recently the rule which English law adopted was that performance of an existing contractual duty owed to a promiso

8、r was no consideration for fresh promise given by that promisor.,Case:史蒂克尔诉迈立克案,在1809年史蒂克尔诉迈立克案中，被告(船长)因两个海员潜逃而向其余海员许诺：如果他们把船开回国去，将额外分享那两个海员的工资，但后来被告与海员之间发生纠纷。法庭裁定，由于海员们本应负有将船驶回国的合同义务，因而被告的许诺并没有对价，故不具有合同效力。 但也存在例外。,Williams v. Roffey Bros &Nicholls Ltd,The defendant contractors entered into a contra

9、ct to refurbish a block of flats. They sub-contracted the carpentry work to the claimant for price of 2000 pound. The claimant ran into financial difficulties after having completed part of the work. The cause of his difficulties was partly attributable to the fact that he had underpriced the job an

10、d partly because of his own inability to supervise his workforce. It was in the interest of the defendants to ensure that the claimant completed the work on time because if, as a result of delay or non-performance by the claimant, the defendants were late in completing the work and they would incur

11、liability to their employers. So the defendants agreed to pay an extra 10300 to ensure that the work was completed on time. The claimant subsequently finished eight more flats but defendant only paid 1500. The claimant sued to the court. The court of Appeal adopted a very pragmatic approach to the i

12、ssue. They held that the defendants had obtained a practical benefit as a result of the claimants promise to continue the job. This is sufficient to constitute a consideration.,Trivial acts,The maxim座右铭 that consideration must be sufficient but need not be adequate has resulted in very trivial acts

13、being held to constitute consideration. The classic illustration is Chappell Co. v. Nestle 1960 Nestle offered for sale gramophone records in return for 1s 6d and three wrappers from their chocolate bars. The House of Lord held that the wrappers themselves, although of very trivial economic value, w

14、ere nevertheless part of the consideration. This was so even though Nestle threw away the wrappers.,Compromise and forbearance节制 to sue,A promise not to enforce a valid claim is good consideration for a promise given in return, as is a promise not to enforce a claim which is doubtful in law. On the

15、other hand, it is clear that a promise not to enforce a claim which is known to be invalid is not good consideration for a promise given in return.,Cook v. Wright,The claimants honestly believed that the defendant was under a statutory obligation to reimburse them in respect of certain expenditure w

16、hich they had incurred in work on a street adjoining the house in which the defendant was residing. The defendant denied that he was under such an obligation, but he eventually promised to pay a reduced sum after he was threatened with litigation if he did not pay. When he discovered that he was not

17、 in fact under a statutory obligation to pay, he refused to honor his promise. He maintained that his promise was not supported by consideration. But the court held that the promise was supported by consideration.,Past Consideration,General Rule: The second rule is that past consideration is not goo

18、d consideration Past consideration is an act or other benefit given in the past that was not given in exchange for the promise in question. Because the past act was not given in exchange for the present promise, it cannot be consideration.,已过时的约因 （past consideration ),已发生的约因，因为不再具有价值，而不构成法律上承认的约因。 Eastwood v. Kenyon (1849) : 丈夫对妻子的养母许诺，愿意帮其归还银行贷款，以报答妻子养母养大妻子之恩，后丈夫经济遇困，不愿执行承诺。养母将其诉之法庭。法院认为养母养大孩子是过去的对价。,Consideration must move from the promisee,General Rule 也可引申为合同相对性原则