LexisNexis合同法.docx

1、LexisNexis合同法LexisNexis合同法Chapter 1SOURCES AND DEFINITIONS OF CONTRACT LAW 1.01 What is a Contract?A contract is formed in any transaction in which one or both parties make a legally enforceable promise.A promise is a commitment or undertaking that a given event will or will not occur in the future

2、and may be express or implied from conduct or language and conduct.A promise is legally enforceable where it: was made as part of a bargain for valid consideration; reasonably induced the promisee to rely on the promise to his detriment; or is deemed enforceable by a statute despite the lack of cons

3、ideration. 1.02 Types of ContractsContract may be of the following types:1) Express an agreement manifested by words2) Implied-in-fact an agreement manifested by conduct 3) Implied-in-law (quasi-contract) not a true contract but an obligation imposed by a court despite the absence of a promise in or

4、der to avoid an injustice 1.03 Sources of Contract Law1) Common Law in most jurisdictions, contract law is not codified, and thus the primary source of general contract law is caselaw.2) Restatement written by the American Law Institute to provide guidance to the bench and bar, the Restatement of Co

5、ntracts (currently in the second edition) has no legal force but nevertheless provides highly persuasive authority.3) Uniform Commercial Code (UCC) created under the auspices of the American Law Institute and the National Conference of Commissioners on Uniform State Laws, has been adopted by every s

6、tate except Louisiana.Proposed revisions to Article 2, governing contracts for the sale of goods, have been finalized and presented to the states for enactment.4) United Nations Convention on Contracts for the International Sale of Goods (CISG) ratified by many of the leading trading nations includi

7、ng the United States and China (but not the United Kingdom and Japan), it governs many transactions for the sale of goods between parties with places of business in different nations.5) UNIDROIT Principles of International Commercial Contracts non-binding authoritative text similar to the Restatemen

8、t.6) Uniform Computer Transactions Act (UCITA) addresses issues arising out of computer licensing but has only been enacted in Virginia and Maryland.7) Uniform Electronic Transactions Act (UETA) adopted by most states, this act does not affect basic contract doctrine but governs the use of electroni

9、c communications.It applies to transactions, defined as the conduct of business, commercial or governmental affairs.Thus, it does not govern contracts such as those between family members or with non-profit institutions.8) Electronic Signatures in Global and National Commerce Act (E-Sign) this feder

10、al law allows states to preempt it by enacting the UETA. 1.04 Contracts for the Sale of Goods1 Application of UCCArticle 2 of the Uniform Commercial Code covers all transactions for the sale of goods other than securities (article 9) and leases (article 2A).It applies to any party; it is not limited

11、 to merchants although individual provisions may be.2 Goods DefinedUnder the UCC, a good is any tangible thing that is moveable.UCC 2-105(1)In addition to manufactured products, goods include: growing crops or timber, unborn young of animals and other identified things attached to land (other than m

12、inerals or the like or structures), regardless of who severs them from the land provided that they can be removed without causing material harm to the land currency exchanged as a commodity (as opposed to the medium of payment for a good) minerals or the like or a structure or its materials to be re

13、moved from realty that are to be severed by the sellerThe term goods does not encompass: intangible rights such as intellectual property investment securities money which is the medium of payment for goods minerals or the like or a structure or its materials to be removed from realty that are to be

14、severed by the buyer3 Sale DefinedUCC 2-106(1) defines sale as the transfer of title for a price.Contracts that involve both goods and services must be evaluated to see which constitutes the primary purpose of the contract, with the secondary purpose being treated as incidental.If the primary functi

15、on of the contract is to provide a service, the UCC does not apply, even if an incidental sale of goods occurs.4 Merchant DefinedA merchant is one who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill particular to the practices or goods involve

16、d in the transaction or who employs an agent or broker in such occupation.UCC 2-104(1)5 Good Faith DefinedEvery contract for the sale of goods imposes an obligation of good faith dealing on all parties in its performance and enforcement. UCC 1-203All parties, including non-merchants, are subject to

17、UCC 1-201(19) which defines good faith as honesty in fact in the conduct or transaction concerned.Merchants are subject to an additional good faith standard, set forth in UCC 2-103(1)(b), which requires honesty in fact and the observance of reasonable commercial standards of fair dealing in the trad

18、e.6 Record DefinedThe proposed revision of Article 2 reflects the contemporary use of electronic communications by substituting all prior references to writing with record, defined in proposed UCC 1-201(33a) as either a writing or a retrievable information in a computers memory, a computer disk, or

19、the like.Chapter 2OVERVIEW OF CONTRACT FORMATION 2.01 Mutual AssentContract formation requires mutual assent to the same terms by the parties, generally manifested by an offer and acceptance (see chapters 3 and 4).Current law favors an objective standard for determining a partys intent to be contrac

20、tually bound.Thus, in general, communications are given the meaning that the recipient of the communication should have reasonably understood.Nevertheless subjective intent is relevant in determining whether the parties intended to be bound.Without such subjective intent, there is no contract. 2.02

21、Basis for RemedyA validly formed contract must provide a basis for determining the existence of a breach and for giving an appropriate remedy Restatement 33; UCC 2-204.Non-goods contracts, according to the Restatement, must include terms that are sufficiently definite and certain; goods contracts, o

22、n the other hand, do not fail for indefiniteness even if one or more terms are left open if the parties intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy. 2.03 Contract Formation by Electronic Agents Proposed new UCC 2-204(4) recognizes the legal ef

23、fect of contract formed by electronic agents resulting from:(1)the interaction of electronic agents of the parties, even in the absence of direct participation in such contract by the parties (i.e., the programming of such electronic agents suffices)(2)the interaction of an individual with an electr

24、onic agent, e.g., a website, where the individual has the option of refusing or taking action or makes a statement that the individual has reason to know will:(a)cause the electronic agent to complete the transaction; or(b)indicate acceptance of an offer, regardless of other expressions or actions b

25、y the individual to which the electronic agent cannot react. 2.04 Receipt of Electronic CommunicationsA number of communications relevant to contract formation such as an offer, revocation of offer, or rejection of offer are effective upon receipt by the person for whom the communication is intended

26、.In contracts for the sale of goods, any legally effective communication sent by electronic means has effect upon receipt by the intended recipients electronic system, e.g., e-mailbox, even if he is unaware of such receipt. proposed new UCC 2-213Chapter 3 OFFER 3.01 What is an Offer?1 Offer DefinedA

27、n offer is a manifestation of an intent to be contractually bound upon acceptance by another party.An offer creates in the offeree the power to form a contract by an appropriate acceptance. Restatement 242 Communications that do not constitute offersThe following types of communications, which do no

28、t manifest an intent to be contractually bound, do not constitute offers:1)opinions about future results, including professional opinions2)statements of intention (including letters of intent which merely memorialize negotiations)3)invitations to submit a bid4)price estimates However, where the esti

29、mate is deemed to be a factual misrepresentation because it was made by an expert, estoppel may be invoked if the offeree relied to his detriment on the estimate.5)advertisements, catalogs and mass mailings Courts have ruled that it is unreasonable for one to believe that the merchant intends to be

30、bound with all whom receive or read such literature unless the power of acceptance is clearly limited to the first person(s) that fulfills the act for which the incentive is offered.6)auctions with reserve An auction is with reserve unless announced to the contrary.In an auction with reserve, the au

31、ctioneer solicits offers in the form of bids.However, if the auction is announced to be without reserve, the auctioneers request for bids or his statement that an item will go to the highest bidder will be deemed an offer. 3.02 When is the Offer Effective?1 Receipt of offerAn offer is not valid unti

32、l received by the offeree or his agent.Restatement 682 Duration of offerIf the offer has a stated time within which the acceptance must be made, any attempted acceptance after the expiration of that time will fail and will merely constitute a counter-offer by the offeree.If no specific time is stated within which