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Business Law Essay

9691 words - 39 pages

The law of contract
 
A contract is an agreement giving rise to obligations which are enforced or recognized by law.
A contract is a legally binding agreement which is enforceable in law.
Formality: the law imposes no requirements regarding the form that a contract takes. Generally, a contract made orally is just as valid in law as written contract signed by both parties.
如果there is some good reason for doing so, 这时候law 就会impose requirements. 三种不同的requirements:
1. required to be made by deed (deed 是一个legal document专门用来create right的,formality更加的strict). 例如:有关land的interest问题,合同长度超度3年的, lack consideration的合同(这种lack consideration的合同一般认为not binding 除非made by deed)
2. required to be in writing. ...view middle of the document...

它与necessity不同 只有luxury才不是necessity。如果这个necessity的good或者service的合同有不利于minor的term,这时候这个contract就会被视为void。
第二种是关于contract of service,就是minors提供service 作为employment或者apprenticeship(学徒)。只要总的是为minors的benefit的, 即便其中有一两条是disadvantage的也没有关系。 但是当整个contract里面disadvantages大于benefit的时候, 这个contract就是unenforceable的(例:De Francesco v Barnum 学跳舞的合同,弊大于利)。
 
Voidable contract: 这个合同bind both party 但是minors可以在18岁前或resonable time afterwards repudiate(拒绝)这个合同,而另一方不行。三种情况:第一种是关于rent/purchase/sell land. 第二种是关于purchase/subscribe shares.第三种是关于become a partner,但是当他还是minor未成年时,他就不需要承担partnership loss。
Mental incapacity: 如果at the material time 有impairment of/ disturbance of the functioning of, the mind or brain, 这个人就被认为lack capacity. 通常情况下这些合同都是binding的,有两个例外:1.如果对方知道这个人是mental incapacity的,这个合同就是voidable的,由mental incapacity一方决定。2. 如果这个mental incapacity的人的affair由Court of Protection控制的,如果contract妨碍了这个court,这个合同就not binding,尽管仍然会bind另一方。也就是说,如果对方不知道这个人有mental problem的话,就是binding的。
如果mental incapacity的这个人买necessary:若对方没有意识到这个incapacity, 同时这个人没有被court of protection控制,那么这个人就要liable for full contract price。 若这两个条件有一个不满足,那么就只是recovery a reasonable price(卖他东西的人倒霉).也就是说,买necessary的时候,若对方知道这个人是mental incapacity的,就只需要赔a reasonable price。
 
Intoxication(吸毒/醉酒)
如果一方因为intoxicated 以至于不能understand the transaction 同时另一方知道这种情况 这时这个合同是voidable的at the intoxicated party’s discretion. 如果他没有avoid 这个合同的话,他必须支付a reasonable price 为necessary goods delivered under the contract(注意不包括service)
 
 
Privity of contract and third-party rights (相互关系原则)
两个原则:
1.只有parties to a contract才可以enforce 这个合同 third parties 没有rights去enforce别人的合同,也没资格去sue这个合同是否breached 即使他们有interest在这个合同里面(例子:Tweddle v Atkinson 儿子结婚 双方亲家商量给儿子钱 丈人还没给就去世了 儿子不能告 因为他是第三方无权 he was not a party to the contract and so could not enforce it. 他爹可以要求recover nominal damages 但如果放在现在 他能得到benefit 所以能起诉
2.合同只impose(强制)双方的obligations。合同do not impose obligation on third parties
 
这个原则的例外就是relationship of agency。合同一方让third party 完成some task on his behalf。 Agent act within his authority 所以如果agent和A签了合同 名字是agent 但是真正法律约束的是A和agent的principal。
 
如果这个合同expressly 说这个third party may get a benefit or 这个合同purport to 给他这个benefit,这时候third party可以enforce the contract。
 
合同双方可以discharge或者vary合同条款, 移除第三方的right。The third party acquiring the right to enforce a term should not unduly restrict the original parties’ rights to discharge or vary the contract.第三方不能阻止双方取消合同,除非:1、第三方已经对promisor(立约人)communicate他对合同条款的assent(赞成)。2、promisor知道 第三方rely on the term 3、promisor reasonable foresee第三方会rely on term 而且事实上也确实rely on it
如果事先合同写明了不用管第三方可以任意修改 就不用管了。
 
 
 
 
 
 
The formation of the contract
 
想要有一个legally binding contract的话 必须满足5个ingredients:
1. offer
2. acceptance
3. certainty( 包括之前已经讲过的formality和capacity)
4. consideration
5. intention to create legal relations
 
Offer 和 acceptance组在一起就变成了一个agreement,一旦有了agreement,就有了一个valid contract
一个agreement是否成立,是否agreement as to the same thing,这时候法院更倾向于agreement is determined on the basis of what the party’s words or actions objectively(客观的)...

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