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法律英语
一、 Structure of Contracts
1. Types of Contracts
根据国内外的民法原理,合同可按不同的标准进行划分:
（1）按照合同的形式：
口头合同与书面合同(oral contract and written contract)
要式合同与不要式合同(formal contract and informal contract)
盖印合同与非盖印合同(contract under seal and simple contract)
（2）按照合同双方当事人承担义务的情况
单务合同与双务合同(unilateral contract and bilateral contract)
无偿合同与有偿合同(gratuitous contract and onerous contract)
（3）按照合同成立的条件
诺成合同与实践合同(consensual contract and real contract）
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(consensual: 在双方愿意下成立的)
（4）按照合同的内容
商品买卖合同 (sales contract ) 雇佣合同 (employment contract)
租赁合同 (lease, lease contract or leasing contract)
抵押合同 (mortgage contract) 物业管理合同 (property management contract)
建设工程合同 (contract for construction project)技术合同 (technology contract) 保
险合同 (insurance contract) 合资企业合同(joint venture contract)
股权转让合同(contract on assignment of equity interests)
承
揽
合
同
(work-for-hire
contract)
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9 保管合同 (safe-keeping
contract)
仓储合同 (ware-housing contract, storage contract)
委托合同(consignment contract) 代理合同(agency contract)
实践中常见的协议主要有：
合伙协议(partnership agreement)
和解协议(composition agreement）
代理协议(agency agreement)
保密协议（confidentiality agreement）
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竞业禁止协议（non-compete agreement）
人事代理协议（human agency agreement）融资协议（financing agreement）
风险投资管理协议（venture capital management agreement）
2.“合同”、“协议”、“契约”等相似概念的关系：
简而言之，合同(contract)就是有法律约束力的协议，合同的成立需要满足法定的要件。 “协
议”(agreement)与“合同”经常用做同义词，但“协议”这一术语含义更广，例如协议可能
缺乏合同成立的一些要件，所以说二者的概念虽接近，但不能互换使用。合同是协议的重要
组成部分，合同一定是协议，而协议并不都是合同，只有具备合同成立要件的协议才是合同。
“契约”的英文表达有: covenant, indenture, deed, 根据 Black’s Law Dictionary 对三
个词语所下的概念可以得知，“契约”主要指用于不动产转让的协议或与不动产有关的证明
文件。
3.
Outline of a contract
I. Recitals or Preamble
II. Habendum
(1)
Definition
(2)
Representations
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9Warranties
and
(3)
Conditions Precedent
(4) Limited Liability or Limitation of Liability (5) Non-disclosure or No Publicity
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(6) Termination (7) Headings (8) Term (9) Waiver (10) Amendment or Modification
(11) Assignment or Successors and Assignment (12) Notice
(13) Governing Law or Applicable Law or Submission to Jurisdiction
(14) Dispute Resolution (15) Severability or Survival of Terms
(16) “No Other Business Relations” (17) Force Majeure
(18) Entire Agreement (19) Execution by Fax (20) Language
(21) Counterparts (22) Ambiguities (23) Currency
III. ATTESTATION
4.
IV. Schedule
Structure of Contract
I. Recitals or Preamble
前言部分主要有如下内容：
(1) 指明签约双（各）方
(2) “鉴于（Whereas）”、“叙述（Recital）”或“背景（Background）”部分
(3) 明确指明合同双（各）方愿意签订本合同
II. Habendum 正文
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(1) Definition
“
定
义
（
Definition
）
”
条
款
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9 是对合同中的某些词语
的进行定义，确保各词语在合同中的含义统一，以免发生歧义。这些词语可分成两大类。第
一类是英文合同中的常用词语，如附属机构（Affiliate）、财务报表（Financial Statements）
等；第二类是本合同中使用的具有特定含义的词语。
(2) Representations and Warranties
“陈述与保证（Representations and Warranties）”条款是合同双（各）方对某些基本事
实的陈述并保证其陈述的真实性，其构成合同签订与生效的前提。主要内容有：
a) 合法注册、经营状况现状、相关资质（Organization, Standing and Qualification） b)
注册资本（Capitalization）
c) 适当授权（Due Authorization）
d) 重大债务（Liabilities）
e) 财产状况（Status of Proprietary Assets）
f) 财产权属状况（Title to Properties and Assets）
g) 重大合同及其义务（Material Contracts and Obligations）
h) 诉讼与仲裁（Litigation and Arbitration）
i) 遵守法律与政府审批（Compliance with Laws; Governmental Consents）
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j) 履行其他约定义务（Compliance with Other Instruments and Agreements）
k) 披露义务（Disclosure）
(3) Conditions Precedent
“先决条件（Conditions precedent）”条款是有关合同双（各）方履行各自义务的前提条
件的约定。
(4)
Limited
Liability
or
Limhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9itation of Liability
“责任限制（Limited Liability or Limitation of Liability）”
该条款是合同双（各）方对其在本合同项下的责任上限进行的约定。
(5) Non-disclosure or No Publicity
“保密（Non-disclosure or No Publicity）”条款，合同双（各）方对本合同内容以及在
本合同协商、签订、履行过程中所得知的其他各方的信息要承担保密义务。
(6) Termination
“合同终止（Termination）”条款是合同双（各）方对本合同在何种情况下可以提前终止进
行约定。
(7) Headings
在“标题”
（headings）条款中，合同双（各）方约定合同中的各个小标题（一般以黑体字显
示）是为了在合同中提及的方便，不构成对合同内容的解释、修改、补充。
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(8) Term
该“合同有效期（Term）”条款是有关合同生效日期、方式以及有效期的条款。
(9) Waiver
在“权利放弃（Waiver）”条款中，合同双（各）方声明任何一方如果没有行使其权利，并
不意味着其放弃该权利。
Either Party's failure to exercise or delay in exercising any right, power or
privilege under this Contract shall not operate as a waiver thereof, and any single
or partial exercise of any right, power or privilege shall not preclude the exercise
of any other right, power or privilege.
如 果 一 方 未 能 行 使 或 迟 延 行 使 其 在 本 合 同 项 下 的 某 些 权 利 、 权 力
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9 或特权，不构成该方对此
项权利、权力或特权的放弃，如果该方已经行使或者部分行使某项权利、权力或特权，并不
妨碍其在将来再次行使此项权利、权力或特权。
(10) Amendment or Modification
在“合同变更（Amendment or Modification）”条款中，合同双（各）方可以约定合同不得
修改或者合同修改的方式。
This Contract shall not be changed verbally, but only by a written instrument signed
by the Parties, and, where required under Applicable Laws, on approval by the relevant
Examination and Approval Authority.
本合同不得以口头方式修改，而须双方签署书面文件后方可修改;若相关法律另有规定，则须
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签署书面文件并取得相关审批机关的批准，本合同方可修改。
(11) Assignment or Successors and Assignment
在“转让（Assignment or Successors and Assignment）”条款中，合同双（各）方可约定
合同不可转让或者合同转让的程序，同时，还可以约定，如果合同转让，则合同对受让方有
完全约束力。
(12) Notice
“通知（Notice）”条款是对合同双（各）方在履行合同过程中相互送达信息的方式以及视
为送达的条件进行约定。一般来讲，要写明合同双（双）方的通信地址、传真号、联系电话、
联络人以及送达成功的具体条件。
(13) Governing Law or Applicable Law or Submission to Jurisdiction
“适用法律（Governing Law or Applicable Law or Submission to Jurisdiction）”条
款://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9r
是有关合同解释、争议解决所适用法律的约定。
(14) Dispute Resolution
“争议解决（Dispute Resolution）”条款是有关合同相关或与合同有关的争议解决方式的
约定，可以选择诉讼，也可以选择仲裁。
(16) “No Other Business Relations”
在“没有其他业务关系”条款中，合同双（各）方声明彼此之间除了合同关系之外没有其他
任何法律关系。
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(17) Force Majeure
“不可抗力（Force Majeure）”条款是有关不可抗力构成要件及其具体情形，以及在发生不
可抗力事件的情况下如果处理的约定。
(18) Entire Agreement
在“所有协议（Entire Agreement）”条款中，合同双（各）方要声明本合同构成双（各）
方就合同主题事宜达成的最终的、唯一的协议，除非明确指明，在此之前的所有约定，无论
是口头的，还是书面的，均无效力。
(19) Execution by Fax
合同双（各）方可以在“传真签订生效（Execution by Fax）”条款中约定，双（各）方可
通过传真方式签订合同并使其生效。
(20) Language
“语言（Language）”条款是有关合同适用语言的约定。
(21) Counterparts
“合同文本（Counterparts）”条款是对合同的份数以及各份合同的效力进行约定。
(22) Ambiguities
在“歧义（Ambiguities）”条款中，合同双（各）方要约定主合同与其附件之间、主合同与
其补充协议之间、主合同各语言文本之间如果发生意思歧义如何处理。
(23) Currency
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“币种（Currency）”条款是对合同项下的货币种类进行约定。
III. ATTESTATION
://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9par 最后一部分为证明部分,是
当事人签字盖章的地方。
IV. Schedule
附录部分
5. Sample Notes & Comments
之间签订 entered into BY and BETWEEN 诚信 Good faith 根据 Under
附件 Appendices / appendixes 单据 Instrument
All … as …
E.g.: The Parties each agree to take all actions and execute all documents as may
be necessary or desirable to carry out or implement and give full effect to the
provisions and intent hereof.
Such … as …
E.g.: such agreements as may be deemed necessary；such provisions as fall within the
jurisdiction of the committee concerned
不可分割的部分 in severable parts hereof
通过交款的方式 set off by payment for goods
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向??提出申请 apply with ?For
Such payment: such 此或此类/此等/该等；即可特指也可类指
注意：如果 such 在合同中已经用于表达非法律英语的意义(如表达“如此”等)，那么最好不
要再使用 such 来表达“此或此类”等法律意义。
said 此/该，只能特指
E.g.: such invoices 所指发票或此类发票
said invoices 所指发票
视
具
体
情
况
considerationhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9
specific circumstances
may, in consideration of specific circumstances, suspend ?注意插入语位置
付款 honor the payment
应交款 amount payable
Outstanding amount 未付款
二、 Source of Law
What’s law?
in
of
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From a sociological perspective---
An order will be called law if it is externally guaranteed by the probability that
coercion 强制力, to bring about conformity of avenge violation, will be applied by
a staff of people holding themselves specially ready for that purpose.
------Max Weber Distinguish with custom or convention:
Pressures to comply with law come externally in the form o f actions by others
These external actions always involve coercion or force
Those who implement the coercive threats are individuals whose official role is to
enforce the law.
From another perspective:
Law
is
the
normative
lifehttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9 of a state and its
citizens, such as legislation 立法, litigation 诉讼 and adjudication 判决.
------Donald Black
Four styles of social control:
Penal 惩罚性质,
e.g. drug pusher
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Compensatory 补偿性质, e.g. a debtor failing to pay the creditor
Therapeutic 治疗性质, e.g. a treatment by a psychiatrist
Conciliatory 调合性质, e.g. marital disputes
Three typical characters:
Universality of applicability
The formality of its enactment
Enforcement
Areas of law
Substantive law vs. Procedural law 实体法 vs 程序法
Public law vs. Private law 公法 vs 私法
Civil law vs. Criminal law 民法 vs 刑法
Substantive laws: consist of rights, duties and prohibitions administered by
courts--- which behaviors are to be allowed and which are prohibited.
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Example:
Prohibition against murder
Thttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9he sale of narcotics
The law of contract, the law of tort, and etc
Procedural laws: are rules concerning just how substantive laws are to be administered,
enforced, changed, and used by players in the legal system.
Example:
Law of civil procedure, law of criminal procedural
Selecting a jury
Serve a ticket
Presenting evidence in court
Drawing up a will
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Public law: is concerned with the structure of government, the duties and powers of
officials, and the relationship between the individual and the state.
Example:
Constitutional law
Administrative law
Criminal law and procedure
Private law: is concerned with both substantive and procedural rules governing
relationships between individuals.
Examples:
The law of torts
Contracts://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9ar
Property
Marriage and divorce
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Civil law 民法 vs. Criminal Law 刑法
Civil law, also called private law, consists of body of rules and procedures intended
to govern the conduct of individuals in their relationship with others.
Criminal law is concerned with the definition of crime and the prosecution and penal
treatment
of offenders.
Magistrates’ Court 治安法院
The most junior courts in the UK
Only two justices of the peace(criminal) or one magistrate(civil) sits in the court
Deal with both small criminal cases and civil law cases, and mainly focus on the family
matters, such as custody and adoption of children, or maintenance orders.
County Courts were established by the County Courts Act 1846 and intend as cheap local
courts for the settlements of minor disputes in contract and tort, trust, or
smahttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9ll debt collections.
Limitations: (Administration of Justice Act 1982 &Limitation Act 1980)
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Actions in contract, debts and tort
Actions in equity
Mortgage actions
Time limit for person injuries
Time limit for contract
? 5,000
? 30,000
?1,000
3 years
6 years
Time limit for mortgage or trusts
6 years
The High Court 高院 is split into three basic divisions:
The Chancery Division (大法官庭)
First instance jurisdiction: estate, mortgage, trusts, rectification of deeds,
partnerships, bankruptcy, landlord and tenant disputes.
Presided over by Lord Chancellor 大法官
The family Division(家事庭）
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First instance jurisdiction: covers family matters
Presided over by the President of Family Division
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9
The Queens’ Bench Division(王座庭）
First instance jurisdiction: covers contracts and torts, and special courts, such
as Admiralty Court
Presided over by:
Lord Chief Justice 首席大法官
The Court of Appeal 上诉法院
The Civil division of the Court of Appeal is presided over by the Master of the Rolls
上诉法院民庭庭长 and there is about 16 Lord Justice of Appeal.
Appeals will lie from the County Court and High Court.
The usual procedure is for each judge to give his opinion and the majority views
prevails, either to reserve, overrule or remit.
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The House of Lords(上议院）
It is the supreme court of appeal(最高上诉法院) in the UK.
Appeals are usually heard by five Law Lords(上议院贵族法官) in an very informal way
where the Lords only provide their opinions.
It
only
hears
the
cases
where
involve
general
publihttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9c importance
Key words and phrases,
起诉
file/issue a claim/ bring an action/sue against
原告
claimant/plaintiff
被告
defendant
诉讼请求 claim form
诉讼
action
法庭费用
court fee
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诉讼程序
诉讼费
proceedings
legal fee
Legal Profession
Barrister 出庭律师
Solicitor
事务律师
Attorney
律师（美）
Lawyer
Practice
Judge
律师（统称）
执业（法律）
法官
Acting for 代理
Represent 代理
Advocacy
Plead
辩护
答辩
Right of audience 出庭辩护权
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Source of Law
It refers to:
The historical origins from which law has come, such as common law and equity
The body of rules which a judge will draw upon in deciding a case, and where these
rules are to be found
Common law
普通法
Parliamenhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9tary
law/statutory law 成文法
Equity
Natural justice
European law
Common Law
衡平法
自然裁断
欧盟法
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Generally speaking, the emergence of common law began at 1066, during the period of
the Norman Conquest. To some extent, the common law is a collection of general customs
nationally applied.
it should,
Have been accepted continuously by the local populace without any record of opposition
Have been obeyed by people
Be capable of precise definition and “reasonable”
Not conflict with another
Precedent 先例
As the years went by judges presiding disputes began to look back to earlier times
in order to discover what had been judicially decided in situations involving similar
circumstances. The outcome of one case would thus establish a yardstick or precedent
by
which
similar
case
might
be
judged
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9future.
in
the
Consequently,
common law is frequently referred to as case-law, since it has evolved almost entirely
from disputes brought before courts.
Parliamentary Law
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From the late 19 century, given the changing socioeconomic conditions of the time,
common law has been steadily eroded by parliamentary legislation. The judge should
look at the parliamentary legislation before making a decision.
Parliamentary law refers to the law passed and enacted by the Parliament, which have
been steadily eroded the power of the common law. Today statutory law 制定法 is
extremely important; it is supreme where a conflict occurs between it and the common
law.
Parliamentary law and Interpretation
When applying the statutory laws, many phrases or sentences in it may arise ambiguous
problems.
This problem is normally solved by the judicial interpretation 司法解
释
.
Judicial
interpretation
ihttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9s the explanation of a
given clause that made by the House of Lords and sometime the Court of Appeals.
DPP vs. Camplin
In the Camplin case, a boy, aged 15 years old, killed a man when he was under severe
provocation. He was then charged of murder in the trail court. However, according
to Homicide Act 1957, “a reasonable man” committed murder under severe provocation
is manslaughter rather than murder.
Question: what does “reasonable man” mean?
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Was it a full aged and mature adult?
Or was it a reasonable person of the same age as the accused?
The judicial interpretation is always considered as precedent and is binding to the
latter cases involving similar factors.
#Davis v Johnson
Davis, the Plaintiff, was an unmarried mother, having a joint tenancy of a council
flat
with
a
man,
the
father
of
her
child,
left
thehttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9
behavior towards her.
home
because
man’s
of
violent
The County Court issued an injunction under the Domestic
Violence and Matrimonial Proceeding Act 1976, which excluded the Defendant from his
home. However, the County Court later rescinded 撤销 that injunction based on a case
made by the Court of Appeal,
B v B. In B v B, the Court of Appeal interpreted the
Act, stating that an unmarried woman could not obtain an order excluding her violent
partner from the home unless she could show that she had a right by the law of property
to exclusive possession of the premises.
The Plaintiff appealed to the Court of Appeal
The court( by a majority of 4-1) held that on its true construction, the 1976 Act
did allow the County Court to grant injunctions to exclude the violent person form
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the home which the parties, whether married or living together, shared on a regular
basis.
Thus
the
Court
departed
form
itshttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9 own decisions in B v.
B and Davis v Johnson, even though its decisions were virtually days old.
The doctrine of stare decisis
If a precedent is to be binding, then subsequent like cases must follow those previous
decisions. The House of Lords is free to depart from its own previous decisions.
The earlier decision of a court in which a trial begins are not binding.
The decisions of inferior courts can never be binding upon superior courts.
The Court of Appeal could depart from its previous decisions where a) two decisions
plainly conflicted with each other; b) where a decision had been subsequently
overtaken by a decision in the House of Lords; c) where a previous decision had been
given by negligence.
The case should be proper issued
Equity 衡平法
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Equity could date from the 15th century, in the form of the Court of Chancery（衡
平法院). It was http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9at first
the supplement to the common law.
The case was first heard particularly in the equity court, say the Court of Chancery.
However, in 18th century, the two rival systems of courts were merged into one.
The effect of Equity
Generally speaking, the equity acts in personam (属人), rather than in rem(属地).
That is to say the court can act in appropriate cases to enforce contracts and trusts
relating to property even where the property is not with the jurisdiction.
The principle of relief in equity is that the defendant has improperly made a profit
for which it is equitable that he or she should account to the plaintiff. Therefore,
a court could order either damages under common law or an account under equity, the
plaintiff has the option. Typical example: equitable estoppel(不容否认).
Only
in
equitable
remedies
could
the
supplement
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9such
as
procedures,
delivery
of
documents and injunctions could be granted. This is so-called equitable execution.
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(衡平法上的执行)
The application of equitable remedies is at the discretion(自由裁量权) of the court
when they thinks it fair, reasonable and just to do so.
Natural justice and judicial review
Natural justice is a set of rules which secure the due process of law in order to
achieve the goal of justice and fairness
Two principal rules:
Nemo judex in causa sua(nobody may judge his own case)
Audi alteram partem(each party to the dispute must be given a fair hearing)
Judicial Review 司法审查
Where there may exist procedure problems, the certiorari 调卷令 could be issued. A
certiorari is used to quash(宣布无效) a decision of an inferior court or a statutory
body where it can be shown that there has occurred a judicial error or a breach of
natural justice.
://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9
European Law
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Since the accession(正式加入) of the United Kingdom to the Treaty of Rome, all EEC
law, in technical sense, applies to the UK.
There are two kinds of EEC Law: Primary and secondary.
Primary law includes three treaties: the 1965 Merger, the 1970 Luxembourg Treaty on
Budgetary Matters and the 1972 Treaty of Accession 正式加入条约. The primary law is
self-executing, that is when ratified it becomes directly operative with each member
state.
Secondary law consists of
Regulations, 条例 which directly apply to each member states.
Directives, 指令 which the national authorities have a discretion as to the form the
directive will take
Decisions, 决 议 which are directed at specific member states, individuals or
undertakings
三、How to Write A Case Brief
? Study of Cases
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In
a
law
firm,
your
supervising
attornehttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9y will request a
memorandum that addresses the rights and liabilities of parties to a pending dispute
and you will research and analyze case law to determine its applicability to that
dispute.
Similarly, in law school your task is also to analyze case law to find out how it
might apply to the next case that might arise.
The article you should write very often refers to the “case briefs”.
? General Elements of A Case Brief
1. Identification
2. Issues and Holdings
3. Facts
4. Procedural history
5. Reasoning
6. Evaluation
? Identification of the Case
You should begin your case brief with
1.The name of the case, which is usually taken from the names of two adversary
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2.party.
3.The jurisdiction, in the sense of the geographical and political body, with which
the court sits
4.The
level
of
the
deciding
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9court
5.The date of decision and
6.The page on which the case appears in the casebook
? How to read the identification
Appellant
Date of decision
page
Godfrey v. Demon Internet ltd. [2001] QB, CB 201
Defendant
Deciding court
? Issue
An “issue” is a material question of fact or law that arises from the claims,
defenses and arguments of the parties. It is a combination of legal and factual
analysis in the determination of whether the facts of a dispute satisfy a general
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rule. When writing an issue in a case brief, you should identify a substantive legal
question that distinguishes the case from the bulk of case law in the casebook, and
specifically incorporate the facts of the case that are critical to the court’s
analysis. Often it is a general question.
Example:
Wagenseller
v
Scottsdale
Memorial
Hoshttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9pital
Catherine Wagenseller(the employee) worked for Scottsdale Memorial Hospital(the
employer) as a staff nurse under an employment contract of indefinite term(不定期
合同). She alleged her supervisor discharged her partly because she refused to
participate in a humorous skit in which the participant “mooned”（露出屁股) fellow
hospital employees. The trial court found that the parties did not dispute any
material facts and that the employer were entitled to summary judgment(简易判决),
because the indefinite term of the employment contract made it terminable at the will
of either party. Such a contract is terminable at any time and for any reason, or
for no reason at all. The intermediate court of appeals affirmed.
the state supreme court reversed and remanded to the trial court, deciding that an
employer is liable in tort to an employee if it discharges the employee for a reason
that
contravenes
a
clear
mandate
of
public
polhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9icy. The court found
such a mandate in a state criminal statue that prohibited certain acts of “indecent
exposure”. In discussing the sources of public policy, the court compared criminal
statutes to other sources of common law:
“we hold that a termination by the employer
of a contract of employment at will which is motivated by bad faith or malice or
retaliation is not in the best interest of the economic system or the public good
and constitutes a
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breach of the employment contract.”
1) Did the trail court correctly grant summary judgment for the defendant?
A:
Too general
? The statement only identify elements of the procedural history, which could not
distinguish the case from other cases.
2) Is an employer liable in tort for discharging an at-will employee for a reason
that violates public policy?
A: Good
?
The
statement
identifies
1)
a
legally
significanthttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9
relationship between parties 2) the nature of the claim(tort) 3) the basis for the
claim(public policy) and 4) the
obstacle to relief on a contract claim(the at-will nature of the employment
contract)
3) Is the employer liable in tort for discharging an at-will employee because of her
refusal to participate in a public “mooning”, a discharge that contravened the
public policy against indecent exposure reflected in a criminal statute?
A: Too specific
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? The disadvantages of increased complexity outweigh the benefits of enhanced
specificity in the issue statement.
4) Is an employer liable in tort for discharging an at-will employee for a reason
that violates public policy and does a state criminal statute prohibiting public
exposure of one’s anus reflect a public policy against compelled public exposure
of bare buttocks? A: Wrong
When
writing
issue,
you
should
not
assuhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9me matters that are
in disputes
? Holding
The “holding” is simply the court’s answer to the question presented in the issue.
Generally speaking, you could state the holding with a simple “yes” or “no”,
couple with a short reason in just one sentence.
Example:
Issue: Is an employer liable in tort for discharging an at-will employee for a reason
that violates public policy?
Holdings: Yes. By discharging the employee because she refused to participate in
public “mooning”, the employer violated public policy reflected in a criminal
statute prohibiting indecent exposure.
? Fact
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Only state material facts that have legal significance and therefore directly
influence the court’s holding and reasoning.
The statement of facts should identify
1. The principal parties to the underlying dispute that gave rise to the legal
proceedings.
2.
The
rehttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9lationships
between those parties, and
3. The event that led to the dispute.
Do:
You should identify the named parties or other important actors with labels that
reflect undisputed and legally significant classification.
E.g. Mary v John, the Plaintiff, Mary, the seller and the Defendant John, the buyer.
Use chronological order and draw graphics if the case is complicated
Don’t:
Do not state a conclusion on an issue that is disputed by the parties and that is
later analyzed in the opinion.
E.g. the statement of facts should not state that the defendant in a criminal burglary
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prosecution “broke into” a “dwelling” if “breaking” and “dwelling” are
elements of the charged offense and if the parties dispute those elements. ?
Procedural History
If your statement of the procedural history of a case on appeal, you should identify:
1.
Which
party
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9or
parties originally brought legal action against which others
2. The legal claims and defenses and relief sought in that action
3. The trial court’s disposition along with the stage of the proceedings at which
the
trail court rendered its decision
4. The dispositions of any intermediate courts below the authoring court
5. The authoring court’s disposition
Exercise: what is the procedural history in case above?
Buyer sued Supplier for compensatory and punitive damages, alleging only breach of
contract. On a finding of malicious breach of contract, the jury awarded Buyer $10
in compensatory damages and $2,000 in punitive damages. On motions after verdict,
the trial court disallowed punitive damage and reduced the compensatory damage award
from $10 to $1. Buyer appealed. The appellate court reversed the trial court’s
reduction
of
the
award
for
compensatory
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http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9damages,
but
it
affirmed the trial court’s elimination of the award for punitive damages.
? Reasoning
On the most fundamental level, when stating a court’s reasoning, you should note
1. Whether the court is interpreting and applying a constitution or common law
2. The court’s reliance on precedent
3. Its analysis of policy considerations and explanation of critical facts
4. Its adoption or recognition of a legal rule or general application
? Holding V dicta
1. A holding is the court’s resolution of an issue before it, limited to the material
facts of that dispute.
2. Dictum is a statement in the opinion that helps explain the court’s reasoning
by addressing questions not squarely presented in the dispute before the court.
The holdings are legal binding while the dicta are not.
However,
the
dicta,
especially
from
the
supreme
court,
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9have strong persuasive
value.
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Exercise
Prior Wisconsin case law, persuasive authority from other jurisdictions, and the
views of three commentators support the following common law principle: Even an
intentional and malicious breach of contract will not support an award of punitive
damages. In dictum, the court suggests that punitive damages could be awarded if the
breach of contract also constituted an independent tort; however, Buyer failed to
plead and prove an independent tort. The court did not explicitly overrule a
nineteenth-century decision in which it had approved punitive damage for breach of
a marriage contract, thus leaving open the possibility of exceptions to the rule of
the current case for breaches of extraordinary contracts.
? Evaluation
You should evaluate the holdings and ask yourselves the following questions:
1.
Does
the
court
distinguish
precedent
in
ahttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9 convincing manner?
2. Does it apply the appropriate standard of review?
3. Does a decision that promotes economics security for employees, consumers?
4. Does a court-developed tort standard allocate risks among parties in a way that
encourage them to conduct themselves in a manner that avoids harm to others yet
encourage socially productive ventures?
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Exercise
In light of the maliciousness of Supplier’s behavior, I think this decision is too
restrictive. To deter such egregious conduct, I would allow punitive damage on a
contract claim if the breaching party breached to maliciously injury the other party
rather than to reallocate its resources to a more profitable and efficient use.
四、Understanding Contract Law: offer and acceptance
? The natural of contract law
The
law
of
contract
is
the
law
relating
to
agreements,
consequenceshttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9
and
the
of
breaking, or breaching of the agreements.
The English court have an objective test to decide if a contract exists in a particular
situation.
? Four Elements of A Contract
Offer 要约 Acceptance 承约
? How to make a contract
? Offer
Consideration 对价
Intention 意图
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An offer refers to an expression of willingness to contract on certain terms, made
with the intention that it shall become binding as soon as it is accepted by the person
to whom it is addressed.
The offer must to be definite, which is in absolutely certain terms, such as price,
quality and quantity of goods, time of transaction and etc, and to be made to a person,
or persons or the general public.
It must be distinguished from an invitation to treat(要约邀请), which is only an
expression of willingness to negotiate. A person making an invitation to treat does
not
intend
to
be
bound
ashttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9
the addressed person.
as
soon
it is accepted by
Example:
Are all kinds of advertisement merely invitation to treat?
Carlill v Carbolic Smoke Ball Co
Facts:
the defendant, who were the proprietors
called “the Carbolic Smoke
and vendors of a medical preparation
Ball”, published an advertisement on newspaper,
stating that” 100 pounds reward will be paid by the Carbolic Smoke Ball Company to
any person who contracts the increasing epidemic influenza, colds or any disease
caused by taking cold, after having used the ball three times daily for two weeks
according to the printed directions supplied with each ball. 1000 pounds is deposited
with the Alliance Bank, Regent Street, shewing our sincerity in the matter.”
The plaintiff, Carlill, on the faith of this advertisement, bought one of the balls
at a chemist’s and used it as directed, three times a day, from Novermber 20, 1891
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to January 17http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9, 1892.
when she was attacked by influenza. In the first trail, she was entitled to recover
1000 pounds. The defendant appealed.
Issue: Is an advertisement to a specific group of people with intention to be bound
an offer?
Holding: Yes
? Termination of an offer
Counter-offer 还盘
Revocation 撤销
Rejection 拒绝
Lapse of time 失去失效
Death
of the offeror or offeree
? Counter-offer
Sometimes a reply from an offeree comes in the form of a new proposal, which refers
to counter-offer. It should be distinguished from the request for further
information.
A counter-offer terminates the original offer.
A request for further information leaves the original offer open until withdrawn by
the offeror.
A counter offer mush contain material changes to the original offer
Example
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Stevenson v McLean (1880)
Following
an
offer
to
sell
irohttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9n, the buyer sent a
telegram asking whether credit terms would be available.
Is this a counter-offer or a request for further information?
As this did not change any existing terms, but merely ask for more information on
the agreed price, it did not constitute a counter-offer.
? Lapse of time
An offer may lapse due to the passing of time, when:
It is stated in the offer that it is open for a specific time
No specific time limit is stated in the offer. In this case the offer is open for
a ‘reasonable time’. The time limit always depends on the nature of the goods, the
market demand for the goods, and whether the prices for the item normally fluctuated
greatly.
? Revocation
An offer can be revoked, or withdrawn, by the offeror at any time before it is accepted.
This must be communicated to the offeree before acceptance take place.
Example
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http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9Byrne v Van Tienhoven
(1880)
The defendant, trading in Cardiff, wrote to the plantiff, in the New York, offering
to sell goods. On the day when the offer was received, the plaintiff telegraphed
acceptance, but three days before, the defendant had sent a letter withdrawing the
offer. However, this did not arrive until after the acceptance had been confirmed
by post.
Is the revocation valid?
No. The revocation was of no effect as it was not communicated until after acceptance
had taken place.
? Revocation during an ongoing act of acceptance
Problems may occur when an offeror attempts to withdraw an offer while a
person is in the process of accepting.
Example
Errington vs. Errington (1952)
A father bought a house on mortgage, and promised that if his son and daughter-in-law
paid
all
of
the
mortgage
instalments,
the
house
Thehttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9
would
be
couple
theirs.
paid
the
mortgage, but when the father died his widow tried to obtain possession of the house.
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the offeree has already begun to act.
Holding: No. Lord Denning concluded that acceptance was a continuing act, with payment
enforceable on completion. While the payment was taking place, revocation would not
be possible.
? Acceptance
An acceptance is an agreement to all the terms of an offer by words or conduct.
Acceptance must fit the terms of the offer exactly, otherwise it could lead to more
negotiation.
? Communication of acceptance
Just making a mental decision to accept an offer is not normally enough. The offeree
must show in some positive way an intention to accept.
? Prescribed acceptance
? Silence
? Ignorance of an offer
? Acceptance via post, telegrams, telex
? Prescribed acceptance
If
the
offeror
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stipulatehttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9s
that
an
offer must be accepted in a certain way, then he is not bound unless acceptance is
made in that way. However, unless the offeror clearly stipulates that the prescribed
mode of acceptance is the only way to accept, then another method may be binding,
provided that it does not put the offeror at a disadvantage.
Example
Yates Building v Pullenyn (1975)
The offeror asked for acceptance to be by letter using registered or recorded delivery.
The letter was sent by normal delivery, but it made no practical difference to the
offeror, since the letter was delivered on time.
Is the acceptance by this method binding?
Yes
? No prescribed acceptance
If no method of communicating acceptance is stipulated, the starting-point is the
acceptance is made using the same method of communication as the offer.
However,
any
reasonable
way
of
replying
will
normally
contracthttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9,
form
a
the
responsibility being on the person accepting to ensure that communication is
effective.
? Acceptance by silence
Felthouse v Bindley (1862)
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An uncle wanted to buy his nephew’s horse, and after discussion over price, wrote
saying:”if I hear no more about him, I consider the horse is mine at 30.15s Pounds.”
the nephew did not reply, but was clearly happy about the arrangements as he told
the auctioneer that the horse was sold. The auctioneer mistakenly sold the horse to
a third party and the uncle sued the auctioneer to recover the horse.
Is there a valid acceptance?
Holding: No. silence alone is not a valid acceptance.
This rule was later written into Unsolicited(主动提供的) Goods and Services Act 1971.
This Act state that a recipient of unsolicited goods can teat them as an unconditional
gift if the goods are kept unused for 28 days and the seller informed that they are
not whttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9anted and the goods
are kept as new for six months unused. ? Ignorance of an offer (the reward case)
Generally, if a person performs whatever is specified as acceptance, but is totally
unaware of the offer, there is not a binding contract, for example, “reward” case.
If a person knows of an offer, it does not matter that the act of acceptance is
performed for some motive other than gaining the reward. E.g.Williams v Carwardine
Example
R v Clarke (1927)
The defendant knew a reward for information leading to the arrest and conviction of
the murders of two police officers. He gave the necessary information, but admitted
as evidence in court that he had only done so to clear himself of possible charges.
He had no thought of claiming the information. However, he decided to claim the money
that was obviously available, since he had known of it, and had provided the necessary
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information.
The
evidehttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9nce that he gave
that he had forgotten about reward was considered by the court to be the same as never
having know of the offer and the High Court of Australia dismissed his claim.
? Acceptance via the pose
The acceptance by post is effective as soon as it is posted.
Example
Adams v Lindsell (1818)
The defendant wrote offering to sell to the plaintiffs some fleeces of wo0l, asking
a reply “in course of post”. The letter containing the offer was misdirected,
and late in arriving, but when it did arrive the plaintiffs posted an immediate
acceptance back to the defendants. However, the defendant sold the wool to someone
else. It was held that a valid acceptance had been made when the plaintiffs posted
their reply, leaving the defendants in breach of contract.
? Acceptance by telegram and telex
Acceptance
by
telegram
is
treated
in
the
same
way
as
lethttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9ters.
Acceptance by telex is treated in the same way as a telephone call, in that the
communication has to be recieved for acceptance to be valid.
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? Acceptance by fax, email or text message
All theses acceptances should be treated like telephone call, which is to say, there
must be communicated.
In summary, the following guidelines might be applied to a modern method of
communicating:
? When is acceptance by modern method effective
It is suggest that, at least in a business context, it is reasonable to assume that
a letter which arrives in office hour is “received” when it arrives, whether or
not it is open immediately.
? Summary
1. Offer: an expression to contract on certain terms, made with intention that it
shall become binding as soon as it is accepted by the person to whom it is addressed.
2. An offer may also be :
Express, http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9either verbal
or written
Implied, by conduct or circumstance
3. Distinguish between an offer and the invitation to treat.
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Termination of an offer
An offer may terminate in the following ways:
1. Acceptance: the offer is then no longer available to anyone else
2. Refusal: the offer ends, so it cannot be accepted later by the offeree
3. Courter-offer: a new proposal from the other party
4. Lapse of time: either a specific time or a “reasonable time”
5. Revocation: the withdrawal of an offer before acceptance
Death
Acceptance
Acceptance: Agreement to all the terms of an offer by words or conduct.
Acceptance must be communicated：
1. Prescribed method
2. Silence
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3. Ignorance of an offer
4. Acceptance via the post
5. Telegrams and telex
6. Moderhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9n methods of
communication
五、Consideration
Consideration should be:
Sufficient but not adequate
Tangible
Present
Not an existing duty
The consideration is of some value to the other party.→Sufficient
The consideration conforms to the market price.→Adequate
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THOMAS V THOMAS (1842)
FACTS: The Claimant is the window of the dead, who wanted his wife, when he died ,
to have the right to live in the house owned by him, so he formed a contract under
she paid $1 each year. Therefore, the claimant sues against the defendant, the son
of the dead, to have the right to live in the house.
CONSIDERATION MUST NOT BE VAGUE
The consideration must be something tangible, or discernible, to be of value in law.
In while v Bluett, a son promises to cease his complaints about the distribution
ohttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9f
his
father’s
property in consideration of his father gave his estate to him.
CONSIDERATION MUST BE PRESENT
Re McArdle (1965)
Members of the McArdle family made alterations to the house to accommodate an elderly
relative. After the work was completed, other members of the family visited and were
so pleased with the alterations that they offered to pay those who had done the work.
Some time later the money had not been handed over, so those who had done the work
sued for the amount promised.
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The consideration provided for a promise must be done in relation to that promise.
That is to say, it must be an act or promise done directly in return for the promise
of the other party, and not something already completed.
Therefore, if the only act of promise which could be consideration is promised after
the
other
party’s
act
is
executed,
then
there
is
no
binding
contracthttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9, because past
consideration will not support a contract.
PERFORMANCE OF AN EXISTING DUTY
Generally, doing sth which is already an obligation is not sufficient consideration.
However, going beyond what is strictly required by law, and doing something extra
to this existing duty, can be seen as valid consideration.
WARD V BYHAM 1956
A single mother was promised by the father of her child a regular payment of $1 per
week for the maintenance of the child provided that she kept the child “well looked
after and happy’. The father defaulted on the payments and the mother claimed that
a contract existed for the payment.
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LEGAL INTENT
It is reasonable for the court to look for the requirement of legal intent. In courts,
the judges will
consider this problem in the following two categories:
CAPACITY
One further requhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9irement
for a contract to be valid is the status of the people or parties to the contract.
MENTAL DISABILITY AND INTOXICATION
Generally if a person is suffering from mental disability or is drunk at the time
of making a contract, the contract is voidable, if he can prove that:
1. He did not understand the nature of the transaction;
2. The other party was aware of this.
MINORS
Generally speaking, a minor is a person under 18, and the law restricts the minor’s
capacity to contract.
Exceptions:
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Necessaries:
A minor will be liable for a contract for sale of necessaries. The sale of Goods Act
1979, s3(3)
defines necessaries as, ‘goods suitable to the condition in life of the minor and
to his actual requirements at the time of sale and delivery.’
In Nash v Inman (1980), a cambridge university undergraduate, the son of a very wealthy
archhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9itect, ordered 11
fancy waistcoats. He did not pay for them, relying on the fact that he was not of
full capacity. (Such waistcoats were normal student clothing at Cambridge.)
Beneficial contract of service:
A second type of contract which may be valid against a minor, is the beneficial
contract of service. Often this takes the form of a contract of employment, education
or training for a minor.
In De Franceso v Barnum, a 14-year-old girl formed a 7-year agreement to train as
a stage dancer. It was said that she was entirely at the disposal of her stage master,
as he did not guarantee her any work and she could not accept any other work without
his agreement, or marry or travel abroad during this time.
六、Basic for Style of Written Contract
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（一）合同英文的语言特点
1、使用正式的法律用词
（ 1 ） The Appendix hereto shall, through the contract period, be deemed to be
construhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9ed as part
of this Contract.
整个合同期间，本合同的附件应被视为合同的组成部分予以解释。
（2）The headings and marginal notes in these conditions shall not be deemed part
thereof or be
taken into consideration in the interpretation or construction thereof or of the
Contract.
本合同条件中的标题和旁注不应视为合同的组成部分，在合同条件或合同本身的
理解或解释中也不应考虑这些标题和旁注。
Construction 比 explanation 要正式。
（3）The Employer hereby covenants to pay the Contractor in consideration of the
execution and
completion of the Works and the remedying of defects therein the Contract Price.
业主特此立约保证向承包人支付合同总价，以作为本工程施工、竣工及修补工程中缺陷的报
酬。
2、同义词连用
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对一些关键性的词采用同义词连用以克服由于英语词一词多意可能产生的语意不
明、避免合同双方按各自的意图来理解合同条文。
（1） This agreement is made and entered into by and between Party A and Party B.
本协议由甲方和乙方签订。
（2）The Contractor shall, without limiting his or the Employer’s obligations and
responsibilitieshttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9 under
Clause 20, insure the Works, together with materials and plant for incorporation
therein, to the full replacement cost.
在不限制第 20 条中规定的承包人和业主的义务和责任的条件下，承包人应该以全部重置成本
对工程、用于工程中的材料和工程配套设备进行保险。
3、外语与相关的专业知识和国际法知识相结合
The Engineer shall have authority to issue to the Contractor, from time to time, such
supplementary Drawings and instructions as shall be necessary for the purpose of the
proper and adequate execution and completion of the works and the remedying of any
defects therein.
工程师有权随时向承包人发出为合理和恰当施工、竣工及修补工程中的缺陷所必须的补充图
纸和指示。
“施工、竣工及修补工程中的缺陷”用了两个 and (execution and completion of the works
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and the remedying of any defects )。
根据一般国际承包工程的做法以及国际工程承包法规（FIDIC 合同条款）的规定，工程分为
两个阶段完成：
第一个阶段为：设计、施工和竣工。完成后承包人获得业主签发的移交证书(Taking-over
Certificate)。
第二个阶段为修补工程中的缺陷。完成后承包人获得业主签发的缺陷责任证书(Defects
Liability Certificate)。届时，承包人和业主双方的合同义务都已解除。
若
用
execution
，
completion
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9of the works and the
remedying of any defects ，则意味着两个阶段合并为一个阶段.
（二）措辞
合同文件在用词上不但要求准确，而且要求简洁。
英语中某些副词如“here”和 “where”在法律文件中往往当作前缀，与另外一个词构成一
个正式法律词汇中的副词，在法律文件中用这些词，可以避免重复，使行文准确、简洁。
合同文件是法律文件，为了维护法律的权威性，在进行此类文件的英文写作时，常常使用那
些我们平时不常用的、法律文件中专用的正式词汇。
1. hereby
Hereby: by means of ; by reason of this. 特此，因此，兹。
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（1）The Employer hereby covenants to pay the Contractor in consideration of the
execution and completion of the Works and the remedying of defects therein the
Contract Price or such other sum as may become payable under the provisions of the
Contract at the time and in the manner prescribed by the Contract.
业主特此立约保证向承包人支付合同总价，以作为本工程施工、竣工及修补工程中缺陷的报
酬。
（2）We hereby certify to the best of our knowledge that the foregoing statement is
true and correct and all available information and data have been supplied herein
（
在
声
明
中
）
,
and
that
we
provihttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9de
agree
to
documentary
proof upon your request.
我方特此证明，就我们所知而言，以上内容真实正确，且所有可得信息和数据已在其中，我
方同意按贵方要求提供证明文件。
This contract is hereby made and concluded by and between referred to as Party A)
and Co. (hereinafter referred to as Party B) on (data), in (Place), China, on the
principle of equality and mutual benefit and through amicable consultation.
本合同双方，×××公司 (以下称甲方) 与×××公司(以下称乙方) 于×××(日期)在中
国×××(地点), 本着平等互利和友好协商的原则特签订本合同。
2. hereof
Hereof: of this, 关于此点，在本文中。
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（1）The terms, conditions and provisions hereof：本合同的条件和条款。
Foreign trade dealers as mentioned in this Law shall, in accordance with the
provisions hereof （本法所称）, cover such legal entities and other organizations
as are engaged in foreign trade dealings.
本法所称的外贸交易者是指依照本法从事外贸活动的法人和其他机构。
(2) This decision shall apply to the crimes committed against Article 9, Article 10
and
Article
11
hereof
by
thhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9e staff and workers of
enterprises other than limited liability companies and companies limited by shares.
1. hereto
Hereto: to this, 至此，在此上。在表示上文已提及的“本合同的本文件的时，使用该词(如：
The parties hereto: 本合同双方; Appendix 4 hereto: 本协议附件 4)
All disputes arising from the performance of this Contract shall, through amicable
negotiations, be settled by the Parties hereto. Should, through negotiation, no
settlement be reached, the case in question shall then be submitted for arbitration
to the China
International Economic and Trade Arbitration Commission, Beijing and the arbitration
rules of said Commission shall be applied. The award of this arbitration shall be
final and binding upon the Parties hereto. The Arbitration fee shall be borne by the
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losing party unless
otherwise awarded by the Arbitration Commission.
对于因履行本合同所发生的一切争议，本合同双方应通过友好协商解决，如协商无法解决争
议 ， 则 应 将 争 议 提 交 中 国 国 际 经 济 贸 易 仲 裁 委 员 会 （ 北 京
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9），依据其仲裁规则进行仲
裁。仲裁裁决是终局性的，对双方都有约束力。仲裁费用应由败诉方承担，但仲裁委员会另
有裁定的除外。
2. herein
Herein: in this. 此中，于此。在表示上文已提及的“本合同（中）的
本文件（中）的时，使用该词。
（1）The term “company” mentioned herein refers to such a limited liability company
or such a company limited by shares as are established within the territory of China
in accordance with this Law.
本法所称公司是指依照本法在中国境内成立的有限责任公司货股份有限公司。
（2）The term “FOB”, “CFR” or “CIF” shall be subject to the “International
Rules for the Interpretation of Trade Terms” (INCOTERMS, 2000) provided by
International Chamber of Commerce (ICC) unless otherwise specified herein (in this
Contract).
除非本合同另有规定， “FOB”, “CFR” 或 “CIF” 均应依照国际商会制定的《国
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际贸易术语解释通则（INCOTERMS）2000》办理。 “ent) 船上交货（）
“CFR” (cost and freight): 成本加运费
“CIF” (cost, insurance and fright): 成本、保险加运费
3. hereinafter
Hereinafter:
later
in
the
same
Cohttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9ntract. 以下，在下文。
一般与 to be referred to as, referred to as, called 等词组连用，以避免重复。
When existing Chinese-foreign equity joint ventures, Chinese-foreign cooperative
joint ventures and wholly foreign-owned enterprises (hereinafter referred to as
“enterprise with foreign investment”) apply to reorganize themselves into a company,
the enterprises with foreign investment shall have a record of making profits for
the recent three consecutive years.
4. Thereof
Thereof: of that, of it. 由此，其。在表示已提及的“人或事的时，可以使用该词。
（1）“Tests on Completion” means such tests specified in the Contract or otherwise
agreed by and between the Engineer and the Contractor as shall be made by the
Contractor before the Employer takes over the Works or any section or part thereof.
竣工检验指合同规定的或由工程师与承包人另行商定的检验。这些检验是由承包人在业主接
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收工程或工程的任何部分之前进行的。
（2）If this Agreement is terminated for any reason whatsoever (任何), all such
drawingshttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9,
specifications, and any other manufacturing or engineering information as are
supplied by Party A, including all the copies thereof, shall be returned to Party
A, and Party B shall cease to manufacture the said Licensed Products or Components,
or parts of the Licensed Products.
无论由何原因导致该合约终止的，所有由甲方提供
的图纸，说明书和其他制造或工程相关信息的原件以及其复印件都需交回甲方，同时乙方应
当停止制造上述特许产品，或零件，或部件。
5.
thereafter, thereto, therewith, therefor, thereunder
Thereafter: after that, 此后，之后
Thereto：to that, 随附，附之
Therewith: with that, 与此，与之
Therefor,: for that, 因之，为此
Thereunder: under that, 在其下，依照
（1）“Contract Products” means the products specified in Appendix 2 to this Contract,
together with all improvements and modifications thereof or developments with respect
thereto.
（2）The Borrower fails to pay any amount payable thereunder as and when such amount
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shall become payable.
://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9par （ 3 ） The decision and
award of the arbitration tribunal shall be final, and judgment on the decision and
award in question may, under the request of either party to the Contract, be made
by any court having jurisdiction. The parties thereto shall, in good faith, comply
with the decision and award of the arbitration tribunal.
6. therein
therein: in that, in that particular context, in that respect. 在那里，在那点上，
在那方面。在表示上文已提及的“合同中的?，工程中的?”等时，可以使用该词。
The contractor shall not, without the prior consent of the Employer, assign the
Contract or any part thereof, or any benefit or interest therein or thereunder：
未经雇主的事先同意，承包人不得转让合同及其任何部分，或者合同中或合同名下的任何利
益或好处。
Therein 合同中 thereunder 合同名下
7. whereas
Whereas: considering that, 鉴于，就?而论。常用于合同协议书的开头段落以引出合同双
方订立合同的理由或依据。
（1） Whereas Party B has the right and agrees to grant Party A the rights to use,
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manuhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9facture
and sell the Contract Products of Patented Technology;
鉴于乙方有权并同意将专利技术的合同产品使用权、制造权和销售权授予甲方；
（2） Whereas Party A desires to use the Patented Technology of Party B to manufacture
and sell
the Contract Products;
鉴于甲方希望利用乙方的专利技术制造并销售合同产品；
（3） The Representatives authorized by the Parties to this Contract have, through
friendly
negotiation, agreed to enter into this Contract under the terms, conditions and
provisions specified as follows:
双方授权代表经友好协商，同意就以下条款签订本合同：
8. whereby
Whereby: by the agreement, by the following terms and conditions,
凭此协议，凭此条款。常用于合同协议书中以引出合同当事人应承担的主要合同义务。
（1）A sales contract refers to a contract whereby the seller transfers the ownership
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of an object to the buyer and the buyer pays the price for the object.
（ 2 ） A contract for supply and use of electricity refers to a contract
whehttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9reby the supplier of
electricity supplies electricity to the user of electricity, and the user of
electricity pays the electric fee.
9. shall
在合同等法律文件中，表示强制性承担法律或合同义务，如表示“应该”或“必须”做某事
时，应用“shall”，而不能用“must”或“ should”。
在表示“应该”或“必须” 时，有时也可以用 will，但力度要比 shall 弱。
Should 在法律文件中往往用作 if, 只表示“如果”之意。
The board meeting shall be called and presided over by the Chairman. Should the
Chairman be absent, the vice-Chairmen shall, in principle, call and preside over the
board meeting.
董事会应由董事长召集并主持，若董事长缺席，原则上应由副董事长召集
主持。
（三）常用短语与词组
1. unless otherwise
Unless otherwise: 除非。比 if not 和 otherwise 正式。
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（1）Unless otherwise expressly specified in the Contract, the Engineer shall have
no authority to relieve the Contractor of any of his obligations under the Contract.
（2）Unless otherwise specified in the credit, banks will accept transport documents
inhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9dicating
the
third
party other than the beneficiary of the credit as the consignor of the goods.
1. in accordance with, under, pursuant to: 根据,依照
（1）On the FOB basis, the Buyer shall book shipping space in accordance with the
date of
shipment specified in the Contract.
（2）When, under the laws and approval from the relevant authorities, a limited
liability company is converted into a company limited by shares, the total amount
which shares are converted into shall be equivalent to the amount of the company’s
net assets.
1、 in the event that, in the event of, 如果，如果?发生
In the event that either party hereto fails to comply with the terms or conditions
of this Agreement, and, within 90 days after the written notice is issued by the other
Party hereto, fails to remedy such failure, the Party giving notice may, forthwith,
notify
the
other
Party
of
the
matter
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inhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9
question
and
terminate this Agreement.
2、 provided that, 但规定，规定；但是
该词组常用于在合同的某一条款中需要作进一步规定时，或在规定时语气上表示转折时。
The Engineer may exercise such authority as is specified or necessarily implied in
the Contract. Provided that if, under the terms and conditions of the appointment
by the Employer, the Engineer shall be required to obtain the specific approval of
the Employer before exercising any such authority, the details of the requirements
in question shall be specified in the Contract.
工程师可行使合同中规定的或者合同中必然隐含的权力。 但是，如果根据业主任命工程师的
条件，要求工程师在行使上述权力之前，应得到业主的具体批准，则此类要求的细节应在本
合同予以表明。
3、 be deemed, 被认为
正式用语，比 be believed, be considered 正式。
In the absence of such indication, the Contract shall be deemed to be revocable.
4、 in case, in (the) case of,如果，有“一旦，万一”的意思
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5、 be liable for, be liable to
Be liable for sth; behttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9
liable to sb.: be responsible in accordance with law. 应负有责任。 Party A shall not,
under this guarantee, be liable for any direct or indirect loss whatsoever arising
out of any defect in the parts or components thereof.
根据本保证，甲方对由于其商品部件或零件的缺陷而引起的任何直接或间接的损失不承担责
任。
6、 in Testimony Whereof
In Testimony Whereof: in Witness Whereof, 以此为证，特立此证
作为正式性的体现，该短语常常在合同结尾条款中使用，以郑重其事，重申合同的严肃性、
重要性；在句子结构上起到承前启后的作用，以引出结语。
（1）In Testimony Whereof, this Contract shall come into effect after the Contract
in question is made and signed by the Parties hereto in duplicate, and either Party
will hold one copy.
（2）In Testimony Whereof, the parties hereto have respectively caused this document
to be made and executed in duplicate, as of the day and year first written above.
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7、 Know All Men by these presents, undersigned, Now Therefore
Know
All
Men
by
these
presents:
http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9 根据本文件， 特此宣布。
Undersigned: 法律文件末尾的签名者，前面加定冠词 the，是指文件签署者的自称。 Now
Therefore: 特此，因此等。
（1）KNOW ALL MEN by these presents that we (name of the bank) having our registered
office called “the Owner”) in the sum Owner, and the Bank will bind itself, its
successors and assigns by these presents.
（2）The undersigned Seller and Buyer have agreed to close the following transaction
in accordance with the terms and conditions stipulated as follows:
（四） 句子结构
英语合同文件及其法律文件中的英文句子具有结构严谨、句式较长的特点。
为了做到准确、严密、清楚、易解，这类英文句子的结构有其自己的一定规则，较典型的就
是状语的位置。
1. 主句中状语的位置
一般应放在 shall, may 等情态助动词之后，行为动词之前。
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A listed company shall, pursuant to laws and administrative regulations, make public
periodically its financial and operational conditions. The listed company shall, in
each fiscal year, publish its financial statements once every six months.
2. 从 http://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9 句中状语的位置
如果法律文件中的句子为复合句，则从句中状语的位置通常应放在连词 if 或 when 等的后面，
从句句子的前面。
If, during the effective term of a takeover offer, the purchaser needs to alter any
items in the takeover offer, the purchaser shall submit a report to the securities
regulatory authorities under the State Council and the stock exchange in advance.
The purchaser shall, after approval of the report, make the fact in question know
to the public.
3. 从句简略形式在句中的位置
如果主从句中的从句是简略形式，则从句应插入主句之中，并应放在 shall 之后行为动词之
前。
The Contractor shall, if called upon so to do, enter into and execute the Contract
Agreement to be prepared and completed at the cost of the Employer in the form annexed
to these conditions with such modifications as may be necessary.
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4. 关于 such ?as 的用法
由于法律文件的语言要求严密、准确，以避免似是而非，造成误解，通常用 such ?as 作关系
代词来引到从句，把所修饰的词或词组放在 such 和 as 之间，这样使意思明确，从而避免了
日后因理解不一致引起纠纷。若所修饰的词组较多较长，有时可用 such ?such ?as 的结
构。://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9
若用基础英语中常用的 which, that 来作关系代词引到定语从句，容易引起争议。
? （? ?发出）施工、完成工程及修补工程中缺陷所必须的补充图纸和指示
? ?such Supplementary Drawings and instructions as shall be necessary for the
execution and the remedying of any defects therein.
? ?Supplementary Drawings and instructions that shall be necessary for the execution
and the remedying of any defects therein.
? 合同一方可能会理解为 that 后的从句只修饰 instructions 而不修饰 Drawings.
七、Vitiating Factors and Remedies
（一）Vitiating Factors
1、That’s not Fair—No valid contract
The very nature of a contract is agreement which means that there should be true
exercise of a person’s will.
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The contract should be formed in “good faith”.
2、Rules of fair play
（1）No duress
（2）No undue influence
（3）No misrepresentation
（4）No important mistakes
（5）No illegality
（6）No non-discloshttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9ure
（二）duress and undue influence
1、Duress
Unfair pressure which persuaded a party to contract, arising from physical violence
or unlawful constraint, or the threat of it, to the party or someone close. It must
be strictly defined.
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Case:
A treat was made to confine an elderly lady to a mental hospital if she did not make
an agreement to transfer property.
Is this agreement valid?
If the particular threat was not the only incentive to enter the contract, is the
contract void?
? Barton v Amstrong (1976)
? The plaintiff were interest in buying some shares (highly profitable) from the
defendant. While he was hesitating, he received letters from the defendant, which
included
statements such as, “the city is not as safe as you may think between office and
home.
You
will
see
what
I
can
do
against
you
and
you
will
rhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9egret the day when you
decided not to work with me”. The Plaintiff contracted with the Defendant.
2、Treats to the property
As the definition arising from common law is a strict one, the doctrine of duress
does not
normally apply to threats to the property at the very early times. Recently, the courts
are taking relatively flexible approach towards threats to the property, such as the
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treat to burn down a house.
Atlas Express v Kafco
Kafco was a small firm of basketware manufacturers who had agreed to supply Woolworths
with a large quantity of goods for their seasonal trade. As Kafco did not have enough
of their own transport, they contracted with the Atlas Express to transport the goods
for an agreed price. Atlas Express, however, later found more lucrative work elsewhere.
They told Kafco that they would not deliver any more unless Kafco paid nearly twice
the
price
originalhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9ly
asked. Kafco wanted to maintain the contract with Woolworths since they had taken
on extra workers and increased their working capacity to produce the required quantity.
Kafco may go bankrupt if they failed to supply the goods, so had no practical
alternative, but to agree, under pressure to pay Atlas Express. Kafco is now claiming
economic duress.
Williams v Roffey
The defendant builders contract with the plaintiff carpenters to do carpentry work
on some flats. When the builders found that the carpenters were in financial
difficulty, unable to obtain materials and labour, and unable to finish the work on
time. they agreed to offer extra money to ensure that the work was completed on time
according to the agreement. In turn, the builders thus avoided paying a penalty under
a Liquidated Damages Clause with the owner of the flats. The carpenters continued,
but
the
builder
did
not
pay,
so
carpenthttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9ers
the
sued
to
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recover the money promised in the new agreement. The builders claimed economic duress.
The court held that there was no evidence of economic duress, merely the normal
commercial pressure evident in the building trade at that time. The contract was
valid.
3、Undue influence
Unfair pressure on a party when forming a contract, which does not amount to common
law duress. An equitable doctrine, developed to provide relief in cases of injustice.
Effect: the contract is voidable.
The case coming before the courts can be divided into two broad categories:
Where there is no special relationship between parties
Where there is a fiduciary relationship
4、 Burden of Proof
The person alleging undue influence has the burden of showing that there was no
exercise
of
independent
free
wills.Where
the
existence
influhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9ence
of
is
undue
proved,
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the court will assume that it was actually exerted, unless proved to the contrary.
There is a rebuttable presumption(可否定的推定) of undue influence where the stronger
party is presumed to have exercised undue influence.
5、 Fiduciary relationship
? Case law states that three is a fiduciary relationship:
? solicitor———client
? parent——child
? doctor——patient
? trustee——beneficiary
? advise——person being advised
? Where a fiduciary relationship is found to exist, undue influence is presumed to
have
risen. It is the duty of the other party to prove that the injured party is entered
into the contract by free and independent will.
6、 Lloyds Bank v bandy
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? A bank manager had been in the habit of visiting an elder farmer both socially and
to
advise
on
his
financial
arrangements.
The
farmer
had
a
to
reqhttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9uested
loan
finance his son’s business
and the manager had agreed that the bank could arrange this, using the farm as security.
When the son’s business failed, the bank recalled the loan. When the farm was to
be taken in repayment, Mr Bandy claimed undue influence.
? It was held that as Mr Bandy trusted the manager and relied on his advice, the bank
is this situation was in a fiduciary relationship with Bandy, and this raised a
presumption of undue influence. The bank had not rebutted this presumption, so the
loan was set aside.
7、 National Westminster Bank v Morgan
? Mr and Mrs Morgan wished to borrow money from the bank to settle other loans and
to support a failing business. Against the bank’s advice they went ahead with the
loan, using their house as security. As in Mr Bandy’s case, when the business failed,
the
bank
tried
to
recall
the
laon,
and
wished
to
sell
the
house
tohttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9 settle the unpaid
amount. The Morgans claimed undue influence , relying on Lloyds banks v Bandy.
8、 bars of recession
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? Lapse of time
? Third-party rights
? Restitution impossible
? Affirmation
（三）Misrepresentation
1、What is representation
A representation is merely a statement which simply asserts the truth of a given facts,
while a promise is a statement by which the maker of the statement accepts an
obligation to do or not to do.
Kleinwort Benson Ltd v Malaysia Mining Corporation Berhad[1989]
The claimants agreed to make available to a subsidiary company of the defendant a
$10 million credit facility. The defendants refused to act as guarantors but they
gave to the claimants a letter of comfort which stated that “ It is our policy to
ensure that the business of the subsidiary
company
is
at
all
times
in
a
phttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9osition to meet its
liabilities to you under the above arrangement.” The subsidiaries ceased the
business and the claimant sue against the claimant for the money.
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A mere representation not a promise.
2、Misrepresentation
A misrepresentation is an ambiguous, false statement of fact or law which is addressed
to the party misled, which is material and which induces the contracts.
It must not be:
Mere puff
Statement of opinion
Statement of intention
（1） mere puff
? A commendatory statement may be so vague as to be neither a promise which is
incorporated into the contract as a term, nor a statement of fact.
? The more specific, the less likely it is to be treated as a mere puff.
（2） statement of opinion
? Bisset v Wilkinson [1927]
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?
A
vender
of
a
farm
in
New
Zealand,
which
has
not
been
usehttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9d for sheep farming
before,
represented to a prospective buyer that, in his judgment, the land could carry 2,000
sheep. In fact it could not carry 2,000 sheep and purchaser, when he discovered this,
sought to set aside the contract on the ground of misrepresentation.
? The statement of the vendor is not a false statement of fact but a statement of
opinion which he honestly beliefs.
3、three types of misrepresentation
? Fraudulent misrepresentation
? Negligent misrepresentation
? Innocent misrepresentation
4、 Remedies
? Rescission: The claimant may set aside the contract induced by misrepresentation
and restitution and
defendant has received
is entitled to recover the value of enrichment which the
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? Damages: The claimant may sue for compensation for financial loss which he has
suffered
normally
on
the
ground
of
tort
or
under
stahttp://www.mianfeiwendang.com/doc/f96cff06d2c147eff6b34ad9tute.
5、 rescission
? Rescission is, in principle, available for all types of misrepresentation.
Rescission is not
automatically when a misrepresentation is made. The represented can elect either to
rescind or affirm the contract.
? Rescission for misrepresentation: the contract is set aside both retrospectively
and
prospectively.
? Rescission for breach: The contract is set aside prospectively.
6、 Damages
? A contractual claim for damages does not lie for misrepresentation, unless it has
been
subsequently incorporated into the contract as a term, in which case damages can be
claimed for breach of contract.
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? But damages can be recoverable in tort where the misrepresentation was made
fraudulently
or negligently.
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