Law
Chapter 1:
The Functions And
Sources Of Law
Chapter 1:
The Functions And Sources Of Law
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SPECIFIC TASKS OF LEAGAL SYSTEMS
Maintain Order
Provide a Forum for Settling Disputes
Protect Expectations
Maintain Established Political Authority
Bring About Social Change
Chapter 1:
The Functions And Sources Of Law
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SOURCES OF LAW
1.Constitutions:fundamental sources of law
2.Judicial Law
(1) Stare Decisis,
“to abide by or to adhere to decided cases“
(2)Factual Distinction
(3)Changed Conditions (case 1)
(4)Scope of Precedent
The courts of one state do not have to follow
decisions of other states
All courts are bound by a U.S Supreme Court
decision
The lower trial and appellate courts must abide by
precedent established by the highest court of the
state
Chapter 1:
The Functions And Sources Of Law
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3.Statutes
Statutes were also important source of AngloAmerican law. And, during past 150 years statutory
law has increased in importance.
(1)Distinction between statutory and judicial law
(2)Statutory interpretation
①Plain Meaning
②Contextual Analysis
③Legislative History (case 2)
Chapter 1:
The Functions And Sources Of Law
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4.Administrative Rules And Orders
5.Alternative Dispute Resolution
(1)Arbitration: Widely used in settling commercial
and labor-management disputes
(2) Mediation: Involvement of a neutral third party in
a dispute to help the disputing parties resolve,
informal voluntary
(3) Fact-Finding
(4)Conciliation: the third party tries to bring the
disputing parties together in hopes of lowering
tensions, improving communication, helping to
interpret issues, providing technical assistance,
exploring potential solutions, and bringing about
negotiated settlement, either informally or in a
subsequent step.
Supplementary 1: Court System in the United States
1.state court system
 (1)Trial courts: begin case, hear witness, present
evidence
 ① courts of general jurisdiction: over major civil
disputes and all serious criminal offenses (felonies)
 the Superior Court (in California),
 the Supreme Court (in New York),
 the Circuit Court (in many states),
 the District Court, the County Court, the Court of
Common Pleas and other names (in other states)
Supplementary 1: Court System in the United States
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② courts of limited jurisdiction: over all types of
civil cases up to a certain amount of money in
controversy and over less serous criminal matters
(misdemeanors)
③ courts of specialized jurisdiction: decide only
disputes of a particular type. For example, probate
or surrogate’s courts, juvenile courts, courts of
claims, ...
* ②, ③ can appeal to ①, then ① will acts as a
single-judge appellate court rather than a trial court.
(2)appellate courts: review the decisions and
actions of trail courts for error
①one appellate court (in a few states)
Known as the Supreme Court of the state or the
Court of Appeals or some other name
Supplementary 1: Court System in the United States
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②two levels of appellate courts (in some
states)
The intermediate appellate courts (courts of
appeals)
The supreme court
*appellate courts are final arbiter of the
meaning and application of state law.
Supplementary 1: Court System in the United States
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2.the Federal court system
(1)principal trial court-- the federal district court
①actions between citizens of different states where the
amount in controversy exceeds $10,000
②actions by individuals “arising under” federal law
③ actions by or against the Federal Government and its
agencies
(2)Federal Courts with Specialized Jurisdiction: Such as the
United States Claim Court, the Tax Court, the Court of
International Trade, Bankrupcy Courts
(3)The Courts of Appeals (formerly known as the Circuit
Court):
To govern all final judgments of district courts and to hear
appeals from decisions of certain administrative agencies
Supplementary 1: Court System in the United States
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There are 13 federal circuit courts of appeal, such
as First Circuit, Second Circuit, etc and the Court
of Appeals for the District of Columbia, the Court of
Appeals for the Federal Circuit.
(4)the Supreme Court of the United States
①original jurisdiction over a very limited class of
cases, chiefly actions between states
②appellate jurisdiction cover :
Ⅰcases originating in lower federal courts,
Ⅱcertain types of case originating in state courts
Law
Chapter 2:
Constitutional Law
Chapter 2: Constitutional Law
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1.Judicial Review
Judicial review in the United States is truly judicial
in that it is carried out by organs of the judicial
branch.
2.Separation of Powers and the Federal Judicial
The principal doctrines discussed here are
standing and doctrines of ripeness and mootness
(1) Standing
① Injury in Fact
② Causation and Redressability
(2) Ripeness and Mootness
Chapter 2: Constitutional Law
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(3) Congressional Power over Federal Court
Jurisdiction
Article Ⅲ provides that the judicial power of the
Supreme Court in its appellate form is to be
exercised with “with such Exception, and under
such Regulations as the Congress shall make.”
3. Separation of Power Issues Between Congress
and the President
(1) Executive Orders and Executive Agreements
(2) War Powers and Military Intervention
4. The Relationship between the States and the
Federal Government
Chapter 2: Constitutional Law
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5.Civil Rights and Civil Liberties
(1) Religious Freedom
(2)Freedom of Speech, Press and Assembly
(3) Criminal Trials and Due Process of Law
(4) Privacy
(5) Minority Right
① Civil Right for Blacks
② Affirmative Action
(6) Rights of Woman
Law
Chapter 3: Tort Law
Chapter 3:
Intentional Torts
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TABLE INTENTIONAL TORTS
Torts Against the
Person
Interference with New Torts
Property Rights
1.Assault
1.Trespass
2.Battery
2.Conversion
3.False imprisonment
3.Nuisance
4.Defamation
5.Invasion of privacy
6.Intentional infliction
of emotional distress
1.Wrongful
discharge
Chapter 3:
Intentional Torts
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1.Torts Against The Person
(1)Battery (case 3)
① Intentional touching of another without
justification and without consent
② Unprivileged touching of another with some
substance put in motion by the aggressor.
(2) Assault
Intentional act of putting someone immediate
apprehension for his or her physical safety.
(3)False Imprisonment (shoplifting)
Intentional confinement of nonconsenting
individual within boundaries fixed by the defendant
for appreciable time
Chapter 3:
Intentional Torts
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(4)Defamation
①definition: communication of untrue statements
about someone to a third party
②category: Ⅰ.oral defamation(slander) and Ⅱ.
libel defamation
③ defenses
Ⅰ.truth
Ⅱ.privilege
(5)Invasion of Privacy (case 4)
four types of invasion of privacy
①intrusion upon the plaintiff’s physical solitude
②appropriation of the plaintiff’s name or likeness
Chapter 3:
Intentional Torts
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③placement of the plaintiff in a false light in the
public eye
④ the public disclosure of private facts
(6)Intentional Infliction of Emotional Distress (case
5)
Intentional causing of severe mental suffering in
another by means of extreme and outrageous
conduct
①the average community member consider the
defendant’s conduct is extremely outrageous
②the plaintiff’s emotional distress must in fact
exist and it must be severe
Chapter 3:
Intentional Torts
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2.Torts Against Property Interests
(1)Trespass
①trespass to land
Ⅰ Intentionally entering upon another’s land or
causing an object or a third person to do so.
Ⅱ A person intentionally remains on another’s land
or fails to remove from the land an object that he or
she is under a duty to remove.
Ⅲdefense: consent or accidental intrusion
②trespass to personal property (chattel)
Intentionally taking or damaging the personal
property of another
Chapter 3:
Intentional Torts
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(2)Conversion
Ⅰ. Intentional exercise of control over personal property,
thereby seriously interfering with another person’s right of
possession.
Ⅱ. difference between the trespass to personal property and
conversion:
Trespass to personal property:diminished value of personal
property because of any injury to it.
Conversion: full value just interferences with the right of
possession
(3) Nuisance
An unlawful interference with a person’s use or enjoyment of
his or her land.
Standard: definite and substantial
unreasonable
Chapter 3:
Intentional Torts
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3.The Emerging Tort Of Wrongful Discharge
Some states recognize this kind of tort but
some other states do not recognize it.
Chapter 3:
Negligence and Strict Liability
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1.Negligence
Conduct that creates an unreasonable risk of harm
to another.
(1)Elements of Negligence
①the defendant owed a duty of care to the plaintiff.
The judge must determine whether there is any
“law” that would require the defendant to bear the
risk or whether the plaintiff must bear his or her
own loss.
②the defendant breached this duty
The standard is that of the hypothetical
“reasonable and prudent person under the same or
similar circumstances”
Chapter 3:
Negligence and Strict Liability
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③the plaintiff sustained an injury
The injury is typically a physical injury to the
plaintiff’s person or property,mental injuries are
difficult to establish liability.
④the defendant caused the plaintiff injury. (cause
in fact/actual cause)
Material element and a substantial factor
⑤the defendant’s conduct was the proximate or
legal cause of the plaintiff’s injury
The doctrine of proximate cause to limit the
defendant’s liability to only those events that are
reasonably foreseeable.
Chapter 3:
Negligence and Strict Liability
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(2)Procedural Doctrines
Burden of proof rests with the plaintiff
①Negligence Per Se
Require a plaintiff may use the defendant’s
violation of a criminal statute to establish the
defendant’s negligence.
②Res Ipsa Loquitur (the thing speaks for itself)
ⅠUses circumstantial evidence to establish a
prima facie case of negligence.
Ⅱ The doctrine is designed for cases where the
plaintiff cannot know the exact negligent act.
Chapter 3:
Negligence and Strict Liability
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Ⅲ Inferred when (a) the event is the kind that
usually does not happen without negligence and
(b)other responsible causes, including conduct by
the plaintiff, are sufficiently eliminated by the
evidence.
*the doctrine of res ispa loquitur is frequently used
in case of product liability, surgical malpractice,
negligent construction of buildings.
(3)Defenses
The burden of pleading and proving these
defenses is on the defendant.
①Contributory Negligence
ⅠConduct by the plaintiff that contributes as a
legal cause to the harm he or she has suffered .
Chapter 3:
Negligence and Strict Liability
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The plaintiff is required to conform to the standard
of conduct of the reasonable prudent person under
the same or similar situations
ⅡProof of contributory negligence is formerly an
absolute bar to recovery by the plaintiff.
Ⅲ Comparative negligence
An alternative which removes the “all or nothing”
rule of contributory negligence and replaces it with
a rule that allows the jury to apportion damages to
reflect the relative fault of the parties.
②Assumption of Risk
Exist when the plaintiff actually had or should have
had knowledge of the risk and voluntarily exposed
himself or herself to it.
Chapter 3:
Negligence and Strict Liability
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2.Strict Liability
The law imposes liability in some situations even if
the defendant is not guilty of intentional
wrongdoing and even if the defendant has
exercised reasonable care.
The strict liability standard reflects a social policy
that the defendant may engage in the activity but
must bear the inherent risk of loss
(1)keepers of dangerous animals
(2)ultrahazardous activities: such as blasting
operations, public fireworks, and storing gasoline
in dangerous proximity to nearby property.
Chapter 3:
Negligence and Strict Liability
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(3)Vicarious Liability
An employer is liable for the negligence
committed by an employee with the scope
of his or her employment
①Justification: the liability is limited only to
instances where the employer knowingly
hires a careless agent or commands the
agent’s tortious conduct.
The employer should pay for the
employee’s torts because, for various
policy reason, the employer is in the better
position to bear this burden.
Chapter 3:
Negligence and Strict Liability
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②Scope of employment limitation
limited only when the employee commits a
tort in the scope of the employment ---that
is , when the injury is caused by the
employee’s wrongdoing incidental to the
employment purposes—is the employer
liable under respondeat superior.
This limit is easier to state than to apply,
because determining if the employee is
acting within the scope of employment
often is difficult.
Chapter 3:
Negligence and Strict Liability
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(4)No-Fault Insurance Systems
①Worker’s Compensation
Fault is immaterial. Employees are entitled to
benefits whether or not they were negligent and
whether or not their employer was free from fault.
The employer are required to contribute either to
workers compensation fund or procure workers
compensation insurance.
②No-Fault Automobile Insurance
The purpose of these statutes is to provide an
injured party with an automatic but minimal
amount of recovery rather than a day in court with
its potential for a greater recovery.
Joint and Several Liability
A controversial doctrine in tort law
 Sometimes there are several parties who
contribute to a plaintiff’s injury, If one of the
defendants is insolvent or unavailable, in most
states, the plaintiff can collect the full amount from
the solvent, available defendant.
 This principle imposes liability upon individuals
that goes beyond their legally assessed
responsibility for the harm
Law
Chapter 4:
Introduction to the
Law of Contract
Chapter 4:
Introduction to the Law of Contract
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1. The Utility of Contract (case 6)
(1)Some see the freedom of individuals and
organizations to contract as fundamental to our
basic free-enterprise system.
(2)Another view of a contract is that it is a tool by
which people establish a private set of rules to
govern a particular business or personal
relationship.
2.Contract Defined (case 7)
Elements of enforceability for most types of
contracts in most jurisdictions.
(1)A valid offer
(2)A proper acceptance
(3)Sufficiency of consideration
Chapter 4:
Introduction to the Law of Contract
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(4)Absence of fraud, force, or legally significant
mistake
(5)Legal capacity of parties
(6)Consistency with general public policy
(7)Observance of proper legal form
(8)Consistency with special rules governing the
type of agreement involved
3.Source of Contract Law
(1)common law basis
This means that the principles of contract law are
to be found in judicial decisions of cases involving
contractual dispute
(2)some statutes spell out special rules
Chapter 4:
Introduction to the Law of Contract
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The most important statute is the Uniform
Commercial Code(UCC)
UCC has been adopted except Louisiana and
Puerto Rico, established a series of rules dealing
with all aspects of sales transactions.
(3)relationship between Common law and UCC
Uniform commercial code Common law of
contracts
Other aspects of
sale law(bulk sales,
commercial paper,
security,etc.)
Sales
contracts
(UCC
Governs
conflicts)
Nonsales contracts
(employment, agency, etc.)
Chapter 4:
Introduction to the Law of Contract
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4.Classification of Contracts
(1)Express, Implied, and Quasi Contracts
(2)Executed and Executory Contracts
(3)Valid, Void, and Voidable Contracts
(4)Bilateral and Unilateral Contracts
Chapter 4:
Introduction to the Law of Contract
Context
Terms
Distinctions
Manifestation
of intent
Express
Formed by the words of the parties,
either oral or written.
Impliedin-fact
Derived from the action of the parties.
Test: Would a reasonable person intend
to contract by engaging in the act
Impliedin-law
A legal fiction wherein contractual rights
are imputed in an attempt to be fair. No
actual agreement exists
valid
Enforceable by all parties.
void
Not enforceable by anyone
voidable
Currently valid, but may be rendered
unenforceable by one or more parties.
bilateral
Offer seeks acceptance by promise
Enforceability
Manner of
acceptance
unilateral Offer seeks acceptance by performance.
Law
Chapter 5: The Offer
Chapter 5: The Offer
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1.Requirements for an offer
(1)Intent to Contract
①Determining Intent
Objective standards:review the offer’s actions and
words as perceived by a reasonable person
②Social Invitation, Excitement, or Jest(case 8)
③Advertisement of Goods for Sale
General, advertisements don’t constitute offers
(2)Definite and Certain Terms
Offer’s statement is clear, definite, and explicit and
leave nothing open for negotiation.
①the subject matter of the proposed transaction
②the quantity of items being offered
③the specified price
Chapter 5: The Offer
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The UCC, section 2-204 provides that a sales
contract is valid even though it leaves open
essential terms ifⅠ.the parties nevertheless
intended to make a contract andⅡ.there is a
“reasonably certain basis for giving an appropriate
remedy”.
(3)Communication of the Offer
①General Rule
Valid offer need the offer being communicated
②The Reward Offer
Many states provide by statute that the rewards will
be enforceable regardless of whether the person
performing the act called for in the offer first
received a communication of the offer of a reward.
Chapter 5: The Offer
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③ The Fine-print Offer (case 9)
Some courts have refused to enforce them on the
theory that they were not really communicated to
the consumer.
2.Termination of the Offer
(1)Lapse of Time
①The offer provide a specific termination date
Once that period expires the offer is terminated
②The offer does not provide
The offer will lapse after a “reasonable time”
Ⅰ.Reasonable time varies with the circumstances
surrounding the offer.
Ⅱ.also affected by the context in which the offer is
made
Chapter 5: The Offer
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(2)Revocation by the offeror
①General Rule
A revocation is a withdraw of the offer by the
offeror, generally, the revocation must be received
by the offeree before the offeree has effectively
accepted the offer.
②Limitation
Ⅰ.option contract: the offer can’t be revoked for
the period specified in the contract
Ⅱ.firm offer: the UCC provides that if an offer to
buy or sell goods contains a promise that it will be
held open for a specific time, it cannot be revoked
by the offeror during that time
Chapter 5: The Offer
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Ⅲ.the law limits the offeror’s power to revoke the
offer while the offeree is in the process of
performing the requested act of acceptance.
Ⅳ.promissory estoppel: courts will limit an
offeror’s right to revoke if an offer is made in such
a way that the offeree reasonably expects that the
offer will not be revoke.
(a)the statement of offer is one that the offeror
should anticipate would be relied on by the offeree,
(b)the offeree in fact does rely on the statement
(c)the offeree is harmed by relying on the offer’s
irrevocability.
③ Rejection by the Offeree
Chapter 5: The Offer
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(4)Death of a Party
General rule: The death of either the offeror or the
offeree will terminate an ordinary offer
Exception: option contract
(5)Illegality
(6)Destruction of the Subject Matter
Act of God
Law
Chapter 6: The
Acceptance
Chapter 6: The Acceptance
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1. Intent to Accept (case 10)
2. Communication of Acceptance
(1)Bilateral or Unilateral Agreement
①in a unilateral contract
Perform the requested act
Respond with the requested promise
(communication from offeree)
②in a bilateral contract
Respond with the requested promise
(communication from offeree)
(2)Means of Communication (case 11)
①Any means of communication that gives the
offeror notice of the offeree’s intent to accept the
offer
Chapter 6: The Acceptance
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②time
When delivered by the offeree to the
communication agency. For example, mail
③modern rule in most jurisdiction is reasonable
means of communication
Depend on three facts as follows:
(a)the subject matter of the offer
(b)the custom and usage in a particular trade of
business
(c)the prior conduct of dealings of the parties
3. Satisfying Terms of the Offer
Generally, an acceptance must mirror the terms of
the offer.
Chapter 6: The Acceptance
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①Battle of Forms
This problem arises because each party desires to
be the one whose form controls the transaction
For example
The buyer’s form to the seller:
“We offer to buy 500 widgets from you at $100 each.
The goods are to be shipped to us F.O.B. our plant
by June 1st. They must be packaged in cartons of
50 each. Payment will be due from us 60 days after
receipt of the widgets. No arbitration. No variation
in the terms of this offer can be made without our
written consent.”
Chapter 6: The Acceptance
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Seller has received a definite offer. It wants to sell
the widgets, but on slightly different terms, and
responds with its own form:
“We have received your offer to buy 500 widgets
and are glad to contract with you. Our goods will
be shipped to you F.O.B. your plant. They will be
packaged in cartons of 100 each. Disputes will be
submitted to arbitration. Payment will be due from
you 30 days after receipt of the widgets. Thank
your for your order.”
Last shot doctrine: under common law, the seller’s
form would be considered a counteroffer that was
accepted by the buyer’s actions in taking the good.
Chapter 6: The Acceptance
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②The UCC and Acceptance
Section-207 provides that, in certain situations, the
terms of an acceptance can add to or differ from
those proposed in the offer.
Chapter 6: The Acceptance
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4. Acceptance Problems
(1) Silence as Acceptance
General rule: not considered to be acceptance
Exceptions:
①If the transactions the parties have entered into
in the past show their intent to regard silence as an
acceptance, that intent becomes a part of their
future transactions
②The initial agreement between the parties
constitutes the basis for treating silence by the
offeree as acceptance.
③If the offeree uses the goods and treats them as
if he had accepted them, the courts consider the
offeree’s actions and silence as together
constituting the required acceptance.
Chapter 6: The Acceptance
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(2) The Auction
①auction with reserve: the object bid for does not
have to be sold if the auctioneer is dissatisfied with
the level of the bidding.
Each bid is considered an offer, acceptance is
signaled by the fall of the hammer or some other
symbolic act.
②auction without reserve: the object must be sold
to the highest bidder.
The announcement is considered the offer and
each bid is an acceptance subject to the condition.
③Under UCC, an auction is considered to be with
reserve unless it is expressly stated to be without
reverse.
5. Cancellation of Acceptance
Law
Chapter 7:
Consideration
Chapter 7: Consideration
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1.Consideration is the exchange element of a
contract. It is what induces the parties’ agreement.
It is what one party must give to another to make
the other party legally obligated to perform its
promise, the quid pro quo of the agreement.
2.Two components of consideration:
(1)legal detriment of the promisee
(2)the bargained exchange for the promise
3.Legal Detriment
A person incurs legal detriment by voluntarily
agreeing to assume a duty or to give up a right.
A legal detriment is not the same as real detriment
or loss. The courts don’t focus on whether that
person suffered economic or physical loss, but
whether the person agreed either to assume a duty
or to relinquish a right.
Chapter 7: Consideration
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(1)Adequacy vs. Sufficiency of Consideration
①The courts don’t really inquire into the adequacy
of the consideration, which means fairness of the
bargain.; The courts are concerned only that there
is a legally sufficient consideration, meaning that
the promisee incurred a legal detriment in
exchange for the promise.
②The court examines the adequacy of
consideration when someone argues that a
contract was made through fraud,
misrepresentation, duress, undue influence, or
mistake.
③The only other circumstance in which a court
examines the adequacy of consideration is in the
equal exchange of interchangeable goods or the
equal exchange of money.
Chapter 7: Consideration
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④Unlike adequacy of consideration, sufficiency of
consideration is readily examined by the courts. To
be legally sufficient, consideration for a promise
must be either legally detrimental to the promisee
or legally beneficial to the promisor.
(2)Illusory Promises
①Any promise that leaves it up to the promisor
whether to perform. Even though people use
promissory language, if the person making the
promise is not required to do anything, the promise
is illusory.
②An illusory promise is not sufficient
consideration because nothing has been promise.
③Cancellation or Termination Clauses.
Chapter 7: Consideration
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Contracts often let one or both parties cancel
obligations under certain circumstances. But if the
cancellation clause gives the buyer a right to cancel
contract at will, the contract is a illusory promise
④ Output / Requirements Contracts
An output contract is an agreement to sell one’s
entire production of goods to a purchaser.
A requirements contract is an agreement to
purchase all one’s requirements for a given product
from the seller.
Many courts once held that such agreements are
illusory because they provide no specification of
how much of the product is to be sold or brought.
Chapter 7: Consideration
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The UCC has legitimized output / requirements
contract by providing standards required for
enforcement.
(3)The Preexisting Duty Rule
① definition
When people promise to do something that they
are already obligated to do, they have not incurred
a legal detriment.
② Some preexisting duties are created by law,
some also may be created by contract.
4. Bargained exchange
Chapter 7: Consideration
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(1)Bargain
The requirement that the parties bargain is not so
much a requirement that they actually sit down and
dicker over the consideration as it is a requirement
that the consideration be something that the
promisor requested in return for being bound by
the promise.
(2)Exchange
Two parties may sign a written agreement in which
one party agrees to do something to exchange for
the other party’s promise to pay a sum.
Chapter 7: Consideration
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5. Promissory Estoppel
(1)Under this theory, someone who makes a
promise is “estopped” from denying the existence
of the promise in cases where the promisee has
justifiably relied upon the promise and has
suffered harm.
(2) Four elements
① A promise. The promise must be the type of
promise that the promisor should reasonably
expect the promisee will rely on.
② The promisee must in fact rely upon the promise.
③ Substantial economic detriment to the promisee
is necessary.
④ Injustice can be avoided only by enforcement of
the promise.
Law
Chapter 8: Genuine
Assent
Chapter 8: Genuine Assent
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Assent to a contract must be given voluntarily and
knowingly by each of the parties; if it is not, there
is no genuine assent and thus no contract between
them.
This chapter discusses situations involving
agreements that lack genuine assent. Fraud,
duress, undue influence, or even mistake may
nullify a party’s assent to a contract and entitle that
party to relief.
1. Fraud
(1)A person who has been induced to enter into a
contract as a result of fraud will be allowed to
cancel or rescind the contract.
(2)The essence of fraud is misrepresentation.
Chapter 8: Genuine Assent
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①intentionally misrepresent—fraud
Fraud is an intentional tort, the victim of the fraud
may not only rescind or cancel the contract but can
also sue for damages to compensate for any loss
incurred..
②unintentionally misrepresent—no fraud
The victim has the right only to rescind or cancel
the contract; no relief for loss will be granted to
that party.
(3)Fraud exists where there is:
① a misrepresentation of a fact
② that is material
③ that is made with knowledge of its falsity and
with intent to deceive the other party
Chapter 8: Genuine Assent

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④ who reasonably relies on the misrepresented
statement
⑤ causing injury as a consequence of the reliance.
Table 1: a case of fraud
Intent
Jones, knowing his car has been seriously
damages in an accident and rebuilt in the auto
shop
Misrepresentation
of a material fact
Tells Smith that the car has never required
repairs beyond ordinary maintenance
Reasonable
reliance
Smith chooses Jones’s car over another car
he has considered buying because he knew
the other car car had once wrecked and
repaired.
Injury resulting
from reliance
One week after purchase, the defect
becomes obvious and Smith must spend
$500 to replace the fender, which has rusted
Chapter 8: Genuine Assent
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(4) Misrepresentation of Fact
A misrepresentation is active concealment of a
material fact or partial disclosure of information
that is represented as the full truth.
① Active Concealment
a partially misleading statement and an outright lie
② Silence and the Duty to Disclosure Information
Where the law imposes a duty to speak, such as a
seller of land, a person in a fiduciary relationship
with another…
③ A Fact Must Be Misrepresented
An opinion is not a fact, in general, an opinion is a
statement of one’s expectations concerning future
events or one’s personal beliefs.
Chapter 8: Genuine Assent
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(5) Materiality
The question of whether a fact is a material fact is
determined on a case-by-case basis. The test
usually seeks to ascertain whether the person
would have entered into a contract if he or she had
know of the misrepresentation.
(6) Knowledge of Falsity and Intent to Deceive
The law does not require proof that the person who
committed fraud had an evil or malicious motive.
Knowledge of the facts will be inferred if a person
makes a statement with reckless disregard for their
truth.
(7) Reliance
Chapter 8: Genuine Assent
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2. Duress
(1) The essence of duress is lack of free will or
voluntary consent. Any wrong act or threat that
overcomes the free will of the consenting party
constitutes duress. Such as economic coercion,
threats to a person’s family and loved ones, and
other uses of moral or social force to put a person
in such fear that his or her act is not voluntary.
(2) In determining whether a contract can be voided
on account of duress, one must ascertain (a)
whether the acts or threats were wrongful and (b)
whether it was the acts or threats, and not the free
will of the party, that induced the required
contractual assent.
Chapter 8: Genuine Assent
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(3) Duress cannot be limited to the fear that might
overcome an ordinary person. If a contracting party,
whether brave or timid, is actually coerced into
asserting to the contract, duress has occurred.
3. Undue Influence
(1) Undue influence exists when one person
exercises mental coercion over another. The
essence of undue influence is that the influenced
person’s own judgment and free will are subjected
to those of the dominating person.
(2) The courts usually follows two-step approach to
examine a case involving undue influence.
(a) If there has been a dominant subservient
relationship between the two party.
Chapter 8: Genuine Assent
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(b) Once the relationship is determined to have
been, the courts presume that such undue
influence did exist when a contract between the
two benefited the dominant party.
4. Mistake
(1)Mistake is generally defined as a state of mind
not in accord with the facts.
In most situations in which mistakes are made, the
law grants no relief to the mistaken party
(2)Bilateral Mistake
Both party can make a mistake concerning an
important material fact on which the contract is
based.
Chapter 8: Genuine Assent
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When a bilateral mistake concerning the subject
matter of the contract occurs, the courts grant
relief to the parties and allow the contract to be
rescinded.
(3)Unilateral Mistake
A unilateral mistake is mistake made by only one of
the contracting parties.
Usually, the law will not grant relief to mistaken
party for carelessness or negligence. However, the
courts grant relief to mistaken party if refusing to
do so would impose undue hardship or expense on
that party.
Chapter 8: Genuine Assent
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(4)Knowledge of Mistake
If a mistake was made by only one of the
contracting parties, but the other party knew or
should have known of the mistake, the courts
generally will not allow the other party to take
advantage of the mistake by enforcing the contract.
Another type of unilateral mistake is one
concerning a person’s identity.
A mistake as to the identity of a person can also be
made as a result of fraud, for example, a person
can forge identification papers and pass as
someone else. Such a situation would be a
combination of fraud and mistake.
Chapter 8: Genuine Assent

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
(5)Mistake of Material Fact
The law is reluctant to undo a contract. Only the
most significant and important mistakes of facts
are grounds for contract rescission.
Finally, in determining the legal significance of a
mistake, a court seeks to evaluate the performance
of the mistake.
Law
Chapter 9: Capacity
to Contract
Chapter 9: Capacity to Contract

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
In the past, married women, convicts, corporations,
and unincorporated associations were considered
to lack the capacity to make certain contracts, but
court decisions and statutory revision in most
states have eliminated their disabilities.
Today, the defense of lack of capacity is most often
raised by people who claim to have been legally
incompetent, under age, or intoxicated at the time
of contracting.
While the law seeks to protect the person who
lacks the capacity to contract, lack capacity is not
presumed. The burden of proof is on the person
asserting it.
Chapter 9: Capacity to Contract

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1.Contracts of Persons Who Might Be Incompetent
(1)The law used to be primarily concerned with
contracts made by persons who had been found
legally to be lunatics or insane. Contracts made by
these persons were void.
(2)As medical science came to recognize different
degrees of mental illness, the courts became
concerned with contracts made by persons who
might be incompetent. The modern rule, generally
treats the contracts made by a person who is
suffering from mental illness as voidable instead of
void.
(3)Even where the contract is voidable due to
possible incompetency, a court generally examines
the fairness and equity of allowing one party to
avoid his or her contract.
Chapter 9: Capacity to Contract
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(4)If a person has been legally adjudged to be
incompetent after a regular court hearing and a
guardian or conservator of that person’s property
has been appointed by the court, the contracts of
that person usually be regarded as void.
2.Contracts of Minors
(1)Overview
①The legal capacity to enter into contracts is not
the same as the capacity to commit a crime or a
tort.
②The higher standard applied to contracts is due
to in part to the fact that contracts generally
involve bargaining with another person.
Chapter 9: Capacity to Contract
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③A minor contracting with an adult needs to be
protected from making unwise or foolish contracts.
④Historical the common law has treated people
under the age of twenty-one as minors, but since
the enactment of the Twenty-sixth Amendment to
the U.S. Constitution, which lowered the voting age
to eighteen, most states have lowered the age of
majority from twenty-one to eighteen.
⑤Since most contracts entered into by minors can
be avoided, they generally referred to as voidable
contracts. The contracts are valid unless the minor,
by disaffirming them, seeks to avoid their
provisions.
Chapter 9: Capacity to Contract
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⑥Statutes in many states specify that certain
contracts are not subject to disaffirmance by a
minor. Contracts of this type are considered valid
not voidable. Examples of such contracts are the
following:
ⅠA contract by a minor to enlist in the armed
forces.
ⅡA contract by a minor to borrow money from an
institutional lender or the government for the
purpose of financing some portion of the minor’s
postsecondary education
Ⅲ A contract by a minor consenting to the
adoption of a child.
Ⅳ A contract by a minor to participate in a
professional sport
Chapter 9: Capacity to Contract
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Ⅴ A contract by a minor that includes a provision
there the minor as an employee or purchaser of a
business agrees not to compete with the business
of the employer or seller.
Ⅵ A contract by a minor to borrow money from a
lender which is served by a mortgage.
⑦ In addition to enforcing contracts that state
statutes declare not subject to disaffirmance,
contracts for necessaries are also usually exception.
(2)Disaffirmance of Contracts by Minors
①Contracts Subject to Disaffirmance
Unless state statutes expressly exempt the
particular contract, or its subject matter is
considered a necessary, the law generally will treat
any contract made by a minor as subject to
disaffirmance.
Chapter 9: Capacity to Contract

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②Time of Disaffirmance
Generally a minor may avoid any contract that is
subject to disaffirmance during the time of his
minority and for a reasonable period of time after
attaining the age of majority.
③Methods of Disaffirmance
Ⅰinform the other party that he intends to disaffirm
their contract
Ⅱsome other act that clearly indicates that he or
she has such an intent
④Disaffirmance and Restitution of Property by the
Minor
Chapter 9: Capacity to Contract
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The majority of decisions hold that the minor may
disaffirm a contract and receive back any
consideration given even if the minor is unable to
return to the other party that which the minor has
receive.(case 17. 18)
The minority of decisions require the minor to
return the consideration received from the other
party in order to be able to disaffirm the contract.
⑤ Disaffirmance and Misrepresentation of Age
A minor’s right to disaffirm a contract can also be
influenced by misrepresentations made by the
minor. When a minor misrepresents his or her age
and such misrepresentation is relied on by the
other party, who is then induced to enter into a
contract, a conflict between legal policies results.
Chapter 9: Capacity to Contract
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(3)A Minor’s Contract for Necessaries and Parent’s
Liability for Minor’s Contracts
①A minor is generally liable for the reasonable
value of necessary items for which he or she has
contracted. That liability is limited to the
reasonable value of the items, which may be less
than their contracted price.
Generally, food, clothing, and shelter, suitable to
the minor’s station in life, will be regarded as
necessaries.
②Since the law often protects the minor by
allowing contracts to be disaffirmed, those
contracting with minors will seek to hold other
parties liable.
Chapter 9: Capacity to Contract

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Buninesspeople contracting with sixteen or
seventeen-year-olds are likely to do so only if the
parent or another adult is expressly committed to
perform the minor’s contractual obligations.
By statute in most states, the law requires a parent
to furnish necessary items to his or her minor
children.
③ If the minor is emancipated and is not
dependent for financial support on his or her
parents, the merchant can hold the minor liable.
If the minor is dependent on one or both parents
for financial support and for furnishing his or her
necessaries, and if a parent is able to furnish those
necessaries, then the merchant can hold the parent
liable.
Chapter 9: Capacity to Contract
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(4)Ratification of Contracts by Minors
A ratification by a minor can occur in any of three
ways.
The minor may fail to make a timely disaffirmance
The minor can expressly state, orally or in writing,
that he or she intends to ratify the contract.
The minor, after attainment of the age of majority,
may by conduct manifest an intent to ratify the
contract made while a minor.
3. Intoxication and Capacity to Contract
A person who is intoxicated may be unable to
understand the nature and effects of contractual
commitments made while in that condition.
Chapter 9: Capacity to Contract

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Intoxication thus is usually treated in the same way
as incompetency due to mental illness or disease.
(1)Fairness and Fraud
Some states do not allow a person to avoid
contracts made while intoxicated or uner the
influence of drugs unless that party can show that
the person with whom his contract was made knew
of the person’s condition and took advantage of it.
(2) Degree of Intoxication
If a person has been legally adjudged to be
incompetent because of habitual drunkenness, that
person no longer has any capacity to contract, his
contracts are considered void, not voidable.
Chapter 9: Capacity to Contract


Generally, in the absence of fraud or special
circumstances, if a person is slightly under the
influence of alcohol or is particially intoxicated,
contracts made by that person will be considered
valid.
If a person is so intoxicated as to lack of capacity
to contract, he will usually be allowed to disaffirm
and avoid its obligations.
Summary: chapter 4---9


英美合同法最核心的部分，即要约、承诺和约因
（consideration）。 公式：offer + acceptance =
meeting of mind / mutual assent。即要约 承诺 双
方意思表示趋于一致 。
所以在英美契约法中，一个有效的要约（offer），加
上一个有效的承诺（acceptance），也就是双方当事人
的意思表示一致（meeting of mind，或者是叫mutual
assent），且有约因（consideration），又排除其他
因素（如双方当事人的能力足不足、意思表示是否有瑕
疵、是否有错误），就成为了一个有效的契约。这就是
英美契约法的基础。大陆法系也讲要约和承诺，但是不
讲约因。
Summary: chapter 4---9
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一、要约与承诺
1、要约与承诺的一般理论
原则：要约人不能强迫要约相对人接受要约。
总结：契约要由双方当事人构成，解除契约也一样；单
方面不能构成契约，解除契约也一样，一定要有双方当
事人的同意。一个固定期限的雇佣契约可以被终止，即
由受雇人来要约，该要约一定要正当合理地被接受，换
句话说就是接受时，要约一定要有效存在。在以对话为
要约时，如果没有在对话中表示接受，那么当对话结束
时，要约就不存在了。没有要约存在，也就自然没有进
行承诺的余地了。
2、反要约
Summary: chapter 4---9
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3、悬赏广告的效力。
4、拍卖中的要约和承诺
二、约因
约因早期的词源是quid pro-puo是纯粹的“对价”的意
思，但现在的约因不完全是“对价”的意思。
约因的传统构成是一方受益，或另一方受到损害。
三、禁反言原则
约因的例外。一般情况下，契约需要有约因，但是在一
些情况下，比如不附条件的纯粹赠与中，就找不到约因，
但是如果因此而让伪善家逃掉，又是极其不公平的，所
以出现了禁反言（estoppel），也就是禁止你违反自己
的话，这一制度来自于衡平法（equity）。
Summary: chapter 4---9



禁反言慢慢发展了几百年，一直没有被条文化，一直到
1932年，才由美国的合同法重述（restatement）给禁
反言下了定义。重述Ⅰ是1934年公布的，重述Ⅱ是1980
公布的，它不是法律，是美国律师协会集合法学家、学
者、实务人士，经过数年努力，通过将英美普通法（合
同、侵权）中的案例进行系统编纂而形成的条文式的阐
述，虽然不是法律，但是很有权威性，英美法庭经常引
用并据以判决。
禁反言在重述Ⅰ中表现了出来，重述Ⅱ对它的描述也没
有很大的变化：“许诺人用合理的推断或预期引诱别人
作为或不作为，而相对人或第三人的的确确做了这些行
为，如果不公平可被避免的唯一方式是履行承诺，那么
许诺人要接受拘束。”
禁反言被条文化的结果就是使英美契约法有了很大的发
展空间，现在禁反言又延伸到了其它领域，在很多领域
都开始适用这一理论。
Summary: chapter 4---9


四、不公正契约
根据美国合同法的理论，如果大财团“欺压”小消费者，
政府公权力会介入进来，不能让大财团为所欲为的“剥
削”消费者，这正是契约法的理念之一。如果契约“一
面倒”，一方处于主导地位，另一方处于弱势，就会使
消费者处于非常不利的地位，这样的契约就失去了有意
义的选择（meaningful choice）。一方将条款内容给
另一方看，看起来很公平，但是另一方根本看不懂，此
时便失去了有意义的选择（meaningful choice）。双
方 当 事 人 签 订 的 此 类 契 约 被 称 之 为 uncontractable
contract，即不公正契约。不公平契约并非完全失效，
只是不公平部分没有效力。
Law
Chapter 10: Civil
Procedure
Chapter 10: Civil Procedure
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1.Separate Court Systems
(1) Key Differences in Civil and Criminal Law
(2) Separate court systems
2.Choosing the Proper Court
(1) Subject-Matter Jurisdiction
① State Courts
The statutes establishing the different courts in the
state will set each court’s subject-matter
jurisdiction boundaries.
② Federal Courts
All federal district courts are treated as trial courts
of equal jurisdictional power; there is no division
among the district courts as to what can be tried in
which tribunal.
Chapter 10: Civil Procedure
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
③ Original and Appellate Jurisdiction.
Any inquiry into subject-matter jurisdiction must
consider not only whether the court has been given
the power o hear a certain controversy, but also
whether it is a trial or an appellate tribunal
(2) Personal Jurisdiction
① A court has the power to render a binding,
enforceable judgement defining or declaring the
rights and duties of the parties because each state
has sovereign control over all things and persons
within its borders.
② “Minimum contacts”
Problem: whether and when a court can assert
personal jurisdiction over a defendant not found
within the state?
Chapter 10: Civil Procedure

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
“Minimum contacts” refers to settle this problem.
Minimum contacts: The Supreme Court clearly
enunciated the principle that
(a) the defendant should have sufficient “minimum
contacts” with the forum state so that tradition
notions of “fair play and substantial justice”would
not be offended by the assertion of jurisdiction.
(b) the defendant’s contact with the forum must be
purposeful – the court must be able to find that the
defendant had purposefully availed himself of the
privilege of conducting some activity in the state,
thereby invoking the benefits and protection of
state law.
③ Service of Process
Chapter 10: Civil Procedure
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(a) Actual service
(b) Substituted service
(c) Constructive service
3. Pretrial
(1)Pleading
Two major function served by pretrial procedure: (a)
to provide fair notice to the other party of the case
against him. (b) to narrow the issues of fact and
law to be tried, including the elimination of
baseless claims or defenses.

①Plaintiff

(a) Code Pleading
Chapter 10: Civil Procedure

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Code pleading abolished the forms of action and
eradicated much of the extreme formality and
resulting pitfalls of common law pleading.
(b) Notice (Federal) Pleading
Notice pleading prevails with the sole concern
being whether the complaint reveals enough
information so that the defendant can respond and
understand why he is being sued.
② Defendant
The defendant can enter a plea in abatement either
by motion or in the answer, also can enter a denial.
There are five different types of denials that may be
used. Such as general denial, specific denial,
qualified denial, insufficient knowledge to form a
belief, a denial on information and belief.
Chapter 10: Civil Procedure

③ Truthful Pleading

Attorney’s signature and verification
(2) Joinder of Parties and Claim
① Party Joinder
(a) How to identify a party to a lawsuit
First, only the real party in interest
Second, a person or legal entity must have
capacity to sue or be sued
Third, a plaintiff must have standing by showing
that he has suffered or imminently will suffer an
injury traceable to the defendant that can be
redressed by a favorable court decision.
(b) Necessary parties and Indispensable parties

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Chapter 10: Civil Procedure
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② Claim joinder
(a) Joinder of claims by plaintiff
(b) Joinder of claims by defendant
③ Discovery
(a) Scope and Purposes
Purposes: One is to preserve the testimony of
witnesses who may not be available at trial or who
one suspects may attempt to commit perjury.
Another is to permit the parties to find out what
documents and testimony exist regarding disputed
factual issues
Scope: parties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim
or defense of any party
Chapter 10: Civil Procedure
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(b) Methods
Depositions
Oral depositions
Depositions upon written question
Interrogatories
Discovery of documents and things
Physical and mental examination
Admissions
(3) The Trial
① The Process
② The jury
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(4) Judgment and Their Effects
① Enforcement
The judgment symbolizes the final determination of
a lawsuit when there is no appeal.
② Binding Effect
(a) Claim preclusion
A party may not relitigate in another lawsuit the
same claim against the same opponent after
judgment has been entered in a case adjudicated
on the merits.
(b) Issue preclusion
Issue preclusion stops a party from relitigating
against the same opponent any factual or mixed
law-fact issue actually litigated in the first suit if the
determination of that issue was essential to the
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(c) Same parties or privies
The traditional rule is that only parties and the
privies in the first suit can benefit from or be bound
res judicata in the second suit.
The persons in privity with a party include:
Successors in interest to property
Persons represented by a party
Persons who assume actual control of litigation in
the name of another.
(5) Appeal
① Appellate Courts
(a) Two major functions of appellate adjudication
First, to correct error in the trial court or
administrative agency
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Second, to enunciate, clarify, and harmonize rules
used within the legal system.
(b) In less populous states, a single appellate court
assumes the entire appellate responsibility.
② The Final Judgment Rule
(a) The federal courts and most states permit an
appeal only from the entry of a final judgment.
(b) The final judgment rule is also likely to foster
justice when the appellate court has the whole
record by which to ascertain the legality of a
particular interlocutory order.
③ Scope of Review