合同法 Contract Law.ppt

1、2020/8/4,1,INTRODUCTION TO CONTRACT LAW,Am I lumbered with a dodgy contract?,Table of Contents,1. Vocabulary P158 2. Contract Law Intention (订约意图) 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),Exceptio Non Adimpleti Contractus: Lat

2、in: exception of a non-performed contract “Exceptio non adimpleti contractus . the right to refuse to perform ones obligations under a reciprocal contract unless or until the other party dos so. “No performance is due to one who has not himself performed.”,Clausula rebus sic stantibus (Latin): “thin

3、gs thus standing.” It is a legal doctrine in public international law which allows treaties to become inapplicable because of a fundamental change of circumstances. This is an exception to the general rule of pacta sunt servanda (promises must be kept). Clausula rebus sic stantibus does not apply if

4、 the parties to a contract had contemplated for the occurrence of the changed circumstance. It only relates to the changed circumstances that were never contemplated by the parties.,2020/8/4,5,Contract law- Introduction,3.1.1 Definition of Contract (p68) An agreement made between two or more persons

5、, with the intention of creating certain legal rights and duties, which is enforceable at law.,2020/8/4,6,Contract law- Introduction,Contract (合同 ) signed by both parties; Witnessed; Sealed.,2020/8/4,10,Chapter 6 -Contract law- Introduction,Simple Contracts (简式合同） Not required to be in any particula

6、r form but are required to have consideration（对价）. simple contract could be made either expressly or impliedly, orally or writing form. There are statutes which require some simple contracts to be in writing, eg. contract of real estates or evidenced in writing eg. bill of lading(提单).,2020/8/4,11,Co

7、ntract law- Introduction,Avoidable contract/ Unenforceable contract/ Void contract/ Illegal contract Avoidable contract（可撤销合同）: -remains valid until repudiated by a party Unenforceable contract（不可强制执行的合同）: -valid on its face but no legal action can be brought on it . eg. Contract needs to be evidenc

8、ed in writing,but no evidence could be presented.,2020/8/4,12,Contract law- Introduction,Void contract（无效合同）: -no legal rights and duties . - Void contract is of civil nature relating to extreme unfairness Illegal contract（非法合同）: - it contravenes a statute and then treated as being void so there are

9、 no legal rights and duties. - Illegal contract is of criminal nature such as robbing a bank with a friend.,2020/8/4,13,Contract law- Introduction,Express Contract and Implied Contract Express Contract(明示合同) Terms of the contract expressly agreed upon in writing, orally or combination of both. Impli

10、ed Contract(默示合同) contract reached through acts or conducts of both parties , not through writing or words.,2020/8/4,14,Essential elements of a valid contract,Intention to create legal relations.（订约意图） Offer and Acceptance - an agreement.（协议） Consideration.（合同须有对价） Capacity of the parties.（合同当事人须有订约

11、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:,2020/8/4,15,Contract law- Intention (step 1),2020/8/4,16,Intention of the parties to create l

12、egal relations,The parties must have intended to enter into a legally binding agreement.,2 types of agreements -Family/ domestic or social agreements. -Business or commercial agreements.,2020/8/4,17,Intention of the parties to create legal relations,Two presumptions（推定）about legal intention: Presump

13、tion 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),2020/8/4,18,Intention of the parties to create legal relations,domestic agreement -example Cohen v Cohen (1929) -husband promised to wife dress allowance be

14、fore the marriage,but after marriage, payments fell into arrears and when couple separated Mrs Cohen sued for that sum. court held: this was an ordinary domestic agreement - no intention; plaintiff was unsuccessful in her claim for breach of contract,2020/8/4,19,Intention of the parties to create le

15、gal relations,Two presumptions about legal intention:,Presumption two: it is presumed that parties to an agreement concerning commerce or business intend to be legally bound.,2020/8/4,20,Intention of the parties to create legal relations - Rebuttal(推翻推定),Either of the presumptions can be rebutted (c

16、hanged) when something happens. Eg:Todd v Nicol (1957) Eg: Rose Hyde made an offer for $950 (counter offer -Hyde now became offeror); Wrench refused this new offer (he now became the offeree); Hyde tried to accept the original offer of $1000. Court held - no contract, because counter offer cancels o

17、riginal offer, and then makes a new offer.,2020/8/4,61,STEP 2: AGREEMENT BETWEEN THE PARTIES Agreement Acceptance-rules,Rules of Acceptance (4) Acceptance must be made strictly in accordance with the terms of the offer offer may prescribe the mode of acceptance ,for instance, “please reply by mail (

18、by fax / by email)” see: mode of acceptance (承诺方式),2020/8/4,62,STEP 2: AGREEMENT BETWEEN THE PARTIES Agreement Acceptance-Mode,If an offeror prescribes a mode of acceptance as the only mode of acceptance then it must be followed. Eg. “Please reply by letter.” If an offeror prescribes a mode of accep

19、tance but does not specify it as the only mode then acceptance can be made by any other mode if it proves to be quicker or equally as quick as the mode requested. Eg. “please reply by any quickest way in addition to letter”. If no mode of acceptance is prescribed, it may be communicated the same way

20、 as the offer was made. Eg. “Please reply as soon as possible.”,2020/8/4,63,STEP 2: AGREEMENT BETWEEN THE PARTIES Agreement Acceptance-rules,(5) Acceptance must be made within the time specified or, if not specified, within a reasonable time (6) Acceptance must be clear and certain. This rule means:

21、 acceptance must not be conditional,2020/8/4,64,STEP 2: AGREEMENT BETWEEN THE PARTIES Agreement Acceptance-rules conditional,Conditional Acceptance（有条件的承诺） A conditional acceptance is not an effective acceptance unless the offeror agrees to the condition. One example of this rule is made with wordin

22、g -“subject to some reservation ”（遵从保留条件） see next slide:Masters v Cameron 1954 91 CLR 353,2020/8/4,65,STEP 2: AGREEMENT BETWEEN THE PARTIES Conditional Acceptance - Masters v Cameron(1954),Masters agreed to buy Camerons farm subject to obtaining advice from solicitors Masters withdrew from the agre

23、ement. Court held: contract was not enforceable because it was not in its final form.,2020/8/4,66,STEP 2: AGREEMENT BETWEEN THE PARTIES,offerees Options to an offer 1. if offeree accepts the offer - agreement forms. 2. if offeree requests for further information -there will be no acceptance but an I

24、TT. 3. If offeree rejects the offer - the offer ends. 4. If offeree makes a counter offer (反要约) - original offer terminated, new offer occurs,2020/8/4,67,STEP 2: AGREEMENT BETWEEN THE PARTIES Termination of an offer (to be continued),Lapse of time Death of the offeror or offeree (3)Withdrawal of an

25、offer（撤回要约） (4) Revocation of an offer（撤销要约）,2020/8/4,68,The difference between Withdrawal and Revocation,Withdrawal (撤回) of offer must be made before it is communicated to the offeree; Revocation (撤销）of an offer must be made before it is accepted. The revocation of offer must be communicated/ recei

26、ved to the offeree. see:Byrne while for a formal contract, consideration is not required because its special form has sufficiently demonstrated parties legal intention in entering into a contract .,Contract law- consideration (step 3) consideration,2020/8/4,78,Contract law- consideration (step 3) co

27、nsideration -rules,Rules relating to consideration: Consideration must come from promisee Eg.1 Seller promises to sell sth to buyer (promisor) (promisee) consideration from promisee: either immediate payment (present consideration) or promise to pay (future consideration) Eg.2 Buyer promises to buy

28、sth from seller (promisor) (promisee) consideration from promisee: either act of delivering goods or promise to deliver the goods,2020/8/4,79,2. Consideration must consist of something of value in the eyes of law ( 对价不必等价) as long as consideration exists the court is not concerned as to the equal am

29、ount in value eg. a car can be quite legally sold for $2 - the $2 is of “some” value in the eyes of the law,Contract law- consideration (step 3) consideration -rules,2020/8/4,80,3. Consideration must have legally recognized value.( i.e. consideration must be sufficient) duties imposed by law or cont

30、ract is not sufficient,Contract law- consideration (step 3) Consideration -rules,2020/8/4,81,Consideration -exercise,case. a witness may be notified formally to appear in court by prosecution and promised $1000 by police for doing so. if police do not fulfill promise Can they be sued for breach of c

31、ontract?.,2020/8/4,82,Consideration -exercise,Held: No, because the witness is imposed by law to appear in the court, so witnesss appearing in the court can not constitute consideration.,2020/8/4,83,Consideration - insufficient?,Stilk v. Myrick (1809)- a ship was in danger because its machine broke

32、down and two sailors deserted the ship. The rest of sailors were promised extra wages during the voyage if they worked harder in returning the ship safely back to London ,but the sailors were not paid,so they sued for the extra pay. Court held: Bringing the ship back safely was part of the seamens e

33、xisting contractual duty.,2020/8/4,84,Consideration - Sufficient?,Glasbrook Bros Ltd. v. Glamorgan City Council 1925 - Police offered a mobile patrol during an industrial dispute but mine owners insisted that police stay on the premises of the mine offering to pay for the service. After the dispute

34、the miners did not pay. Court held: police worked above and beyond their duty - this was sufficient consideration.,2020/8/4,85,4. Past consideration is not a valid consideration . Consideration can be present or future, but not past . see: Anderson v Glass 1869 Roscorla v Thomas 1842,Chapter 9 -Cont

35、ract law- consideration (step 3) consideration -rules,2020/8/4,86,Past consideration is not valid,Anderson v.Glass (1869) - Glass promised extra money to an employee for work he had previously completed. Glass later refused to honour the promise. Court held : promise to pay extra money for work alre

36、ady done was not binding because past consideration is not legally valid consideration ,which could be used to buy promise.,2020/8/4,87,The difference between present or future consideration and past consideration Seller offers to sell buyer (promisor) (promisee) buyers act of payment- present consi

37、deration buyers promise to pay - future consideration both present or future consideration are made after promisors promise, but past consideration is made before promisors promise.,Contract law- consideration (step 3) Consideration -rules,2020/8/4,88,Contract law- consideration (step 3)Consideratio

38、n -rules,past consideration is not a valid consideration, why? Would you like to pay the already rendered service which you had thought free of change ? If you have to pay the disagreed service as requested by the law, think what sort of consequences it would bring to this world? Terrible!,2020/8/4,

39、89,Contract law- consideration (step 3)Consideration -rules,5. consideration to be given by promisee must be possible of performance eg. If consideration requests promisee to walk from Shanghai to Beijing within 24 hours in exchange for the promisors promise.,2020/8/4,90,Contract law- agreement (ste

40、p 3)consideration,-END-,2020/8/4,91,Contract law- (step 4)capacity of the parties,To form a valid simple contract the parties must have contractual capacity to enter into the contract. Contractual capacity(合同的订约能力) means the ability of parties to contract in fully understanding the rights and at the

41、 same time 2) his state of mind was known or ought to have been known by the other party. See two cases next slides,2020/8/4,106,Blomley v Ryan (1956),Facts: D. was a grazing property owner ,who had acquired habit of indulging in extended bouts of drinking (沉溺于无休止的喝酒). During one bout, Ps father app

42、roached to D and offered to buy his property on generous terms of substantial undervaluation. When sober D tried to rescind the contract, successful? Held: contract was set aside（不生效） because at the time of contracting P was aware that D was incapable of forming rational judgment and took advantage

43、of his drunkenness.,2020/8/4,107,OConnor v Hart (1985),A farmer entered into a contract to sell a piece of land at low price. After the farmer died, his family members tried to have contract set aside arguing that when contract being made the farmer suffered from mental unsoundness . But the defenda

44、nt alleged that he had not been aware of the mental unsoundness. Should the contract be set aside?,2020/8/4,108,OConnor v Hart (1985),Court held: mental unsoundness must be established together with the fact that the other party was/should have been aware of this,and then taking advantage of it.The

45、Plaintiffs was unable to demonstrate the awareness of defendant , so they failed in the lawsuit.,2020/8/4,109,Contract law- (step 4)capacity of the parties,The bankrupts (破产者) contractual capacity is limited, i.e. If the bankrupt wish to obtain goods or service in excess of certain amount of money (

46、say $3,100 according to Australian law) ，he must prove his legal status to the provider of the goods or service in view of protecting the creditor in public. In China the bankrupts are prohibited from consuming goods or services of high level According to 禁止高消费令,2020/8/4,110,short summary of contrac

47、tual capacity,2020/8/4,111,Contract law- (step 4)capacity of the parties,-END-,2020/8/4,112,STEP 5: GENUINE CONSENT,This part will be concerned with the following issues: Mistake（错误） Misrepresentation（误述） Duress（胁迫） Undue Influence（不当影响） Unconscionability（非良知行为）,2020/8/4,113,STEP 5: GENUINE CONSENT,

48、The contract is made by offer and acceptance.The offeror and offeree ,when negotiating the contract, make various kinds of statements , some are legally valid, some are made without genuine consent as follows: Mistaken statements ( mistake) untrue statement of fact (Misrepresentation) statement unde

49、r duress (Duress) statement under undue Influence (Undue Influence) Unconscionable conduct (Unconscionability),2020/8/4,114,GENUINE CONSENT,when parties enter into an agreement their consent must be genuine if an agreement is reached based on a mistake, or misrepresentation or duress or undue influe

50、nce or unconscionable conduct, the contract may not be formed . Even if it is formed, the injured person may be entitled to rescind the contract.,2020/8/4,115,Genuine Consent -Mistake,Mistakes could be divided into two categories: mistake of law = meaning mistake in understanding law. If so , genera

51、lly the person making mistake will not be excused for every body is expected to know law. mistake of fact = meaning mistake in understanding relative facts, contract may be valid or void or avoidable depending on the situations.,2020/8/4,116,Genuine Consent -Mistake,Sometimes the parties do not have

52、 a meeting of the minds (consent ). Various mistakes may be made , summarily they are as follows : common mistake (双方共犯一个错误) mutual mistake （双方各犯一个错误） unilateral mistake （单方犯错） non est factum (这不是我的真实意思 ),2020/8/4,117,Genuine Consent common mistake,Common mistake both parties make the same mistake.

53、agreement made with reference to a set of facts which parties mistakenly believed to exist Contract void , no damages available. see Prichard v Merchants but the failure to read / understand document was not due to carelessness The contract of non est factum is void. see Petelin v Cullen 132 CLR 355

54、 (next slides),2020/8/4,125,Petelin v Cullen (1975),Petelin, who spoke little English and could not read , was encouraged to sign a document for sale of land by defendant , which was radically different from what he had been led to believe. Court held: non est factum successfully established - Petel

55、in was able to show that he signed what he thought to be a receipt for something else not an acceptance for sale of land Contract void.,2020/8/4,126,Summary-genuine consent-mistake,2020/8/4,127,Genuine Consent - Misrepresentation,Definition-misrepresentation in contract occurs when one party is indu

56、ced to enter into a contract because he relied on a false statement by the other party. misrepresentation only refers to the false statement of facts,2020/8/4,128,Genuine Consent Types,Misrepresentation(误述) could be either fraudulent （欺诈性误述）or innocent （无意性误述）or Negligent （疏忽性误述） : Fraudulent misrep

57、resentation- party makes a false statement of fact , intending to induce and actually leading to the contract. - contractual remedy : the injured party may rescind the contract Unconscionability is looked at form the stronger party to find how the stronger party behaves towards the weaker party and

58、whether it is consistent with the principles of equitability , conscience （良心） condition precedent 使合同生效的先决条件 condition subsequent 使合同失效的后决条件 B. terminated by a new agreement for the original one(新合同代替旧合同) C. terminated by the creditor giving up his rights or interest owned by debtor,2020/8/4,171,Te

59、rmination of contract- Termination by operation of law,2. Terminated by operation of law Under common law, a contract can not be discharged with one party wishing to terminate it. The operation of the law brings the contract discharged on the occurrence of certain events. Eg death of either party in a contract for personal service will discharge the contract. lapse of time bar (时效) will discharge the contract.,2020/8/4,172,Termination of contra