contract阅读文章.docx

1、contract阅读文章ContractIn law, a contract (or informally known as an agreement in some jurisdictions) is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between them. The elements of a contract are offer a

2、nd acceptance by competent persons having legal capacity who exchange consideration to create mutuality of obligation. Proof of some or all of these elements may be done in writing, though contracts may be made entirely orally or by conduct. The remedy for breach of contract can be damages in the fo

3、rm of compensation of money or specific performance enforced through an injunction. Both of these remedies award the party at loss the benefit of the bargain or expectation damages, which are greater than mere reliance damages, as in promissory estoppel. The parties may be natural persons or juristi

4、c persons. A contract is a legally enforceable promise or undertaking that something will or will not occur. The word promise can be used as a legal synonym for contract, although care is required as a promise may not have the full standing of a contract, as when it is an agreement without considera

5、tion.Contract law varies greatly from one jurisdiction to another, including differences in common law compared to civil law, the impact of received law, particularly from England in common law countries, and of law codified in regional legislation. Regarding Australian Contract Law for example, the

6、re are 40 relevant acts which impact on the interpretation of contract at the Commonwealth (Federal / national) level, and an additional 26 acts at the level of the state of NSW. In addition there are several international instruments or conventions which are applicable for international dealings, s

7、uch as the United Nations Convention on Contracts for the International Sale of Goods.HistoryContract law is based on the principle expressed in the Latin phrase pacta sunt servanda, which is usually translated agreements must be kept but more literally means pacts must be kept. Contract law can be

8、classified, as is habitual in civil law systems, as part of a general law of obligations, along with tort, unjust enrichment, and restitution. The common law of contract originated with the writ of assumpsit, which was originally a tort action based on reliance. Jurisdictions vary in their principle

9、s of freedom of contract. In common law jurisdictions such as England and Wales and the United States, a high degree of freedom is expected. For example, in American law, it was determined in the 1901 case of Hurley v. Eddingfield that a physician was permitted to deny treatment to a patient despite

10、 the lack of other available medical assistance and the patients subsequent death. This is in contrast to the civil law, which typically applies certain overarching principles to disputes arising out of contract, as in the French Civil Code. Other legal systems such as Islamic law, socialist legal s

11、ystems, and customary law have their own variations.However, in the case of the United States the principle of freedom of contract has eroded over time due to judicial deference to legislation affecting contracts. For example, the Civil Rights Act of 1964 restricted private racial discrimination aga

12、inst African-Americans. In the early 20th century the United States underwent the Lochner era, in which the Supreme Court of the United States struck down economic regulations on the basis of freedom of contract and the Due Process Clause; these decisions were eventually overturned and the Supreme C

13、ourt established a deference to legislative statutes and regulations which restrict freedom of contract. The U.S. Constitution contains a Contract Clause, but this has been interpreted as only restricting the retroactive impairment of contracts. Not all agreements are necessarily contractual, as the

14、 parties generally must have an intention to be legally bound (or the functional equivalent under the objective theory of contracts). In American English, a gentlemens agreement is one which is not intended to be legally enforceable; the equivalent concept can be expressed an agreement binding in ho

15、nor only.Commercial useContracts are widely used in commercial law, and form the legal foundation for transactions across the world. Common examples include construction contracts, product purchases (with associated warranties of quality), software licenses, employment contracts, insurance policies,

16、 real estate deeds to transfer title, professional services, wholesale merchandise supply, and various other uses.Online contracts have become common. E-signature laws have made the electronic contract and signature as legally valid as a paper contract. It has been estimated that roughly 110 electro

17、nic contracts are signed every second.From a legal point of view, in India, E-contracts are governed by the Indian contract act (1872), according to which certain conditions need to be fulfilled while formulating a valid contact. Certain sections in information Technology Act (2000) also provide for

18、 validity of online contract.ElementsAt common law, the elements of a contract are offer, acceptance, intention to create legal relations, and consideration.Offer and acceptanceIn order for a contract to be formed, the parties must reach mutual assent (also called a meeting of the minds). This is ty

19、pically reached through offer and an acceptance which does not vary the offers terms, which is known as the mirror image rule. If a purported acceptance does vary the terms of an offer, it is not an acceptance but a counteroffer and, therefore, simultaneously a rejection of the original offer. The U

20、niform Commercial Code disposes of the mirror image rule in 2-207, although the UCC only governs transactions in goods in the USA. As a court cannot read minds, the intent of the parties is interpreted objectively from the perspective of a reasonable person, as determined in the early English case o

21、f Smith v Hughes 1871. It is important to note that where an offer specifies a particular mode of acceptance, only an acceptance communicated via that method will be valid. Contracts may be bilateral or unilateral. A bilateral contract is an agreement in which each of the parties to the contract mak

22、es a promise or set of promises to each other. For example, in a contract for the sale of a home, the buyer promises to pay the seller $200,000 in exchange for the sellers promise to deliver title to the property. These common contracts take place in the daily flow of commerce transactions, and in c

23、ases with sophisticated or expensive promises may involve extensive negotiation and various condition precedent requirements, which are requirements that must be met for the contract to be fulfilled.Less common are unilateral contracts in which one party makes a promise, but the other side does not

24、promise anything. In these cases, those accepting the offer are not required to communicate their acceptance to the offeror. In a reward contract, for example, a person who has lost a dog could promise a reward if the dog is found, through publication or orally. The payment could be additionally con

25、ditioned on the dog being returned alive. Those who learn of the reward are not required to search for the dog, but if someone finds the dog and delivers it, the promisor is required to pay. In the similar case of advertisements of deals or bargains, a general rule is that these are not contractual

26、offers but merely an invitation to treat (or bargain), but the applicability of this rule is disputed and contains various exceptions. The High Court of Australia stated that the term unilateral contract is unscientific and misleading.In certain circumstances, an implied contract may be created. A c

27、ontract is implied in fact if the circumstances imply that parties have reached an agreement even though they have not done so expressly. For example, a patient may implicitly enter a contract by visiting a doctor and being examined; if the patient refuses to pay after being examined, the patient ha

28、s breached a contract implied in fact. A contract which is implied in law is also called a quasi-contract, because it is not in fact a contract; rather, it is a means for the courts to remedy situations in which one party would be unjustly enriched were he or she not required to compensate the other

29、. Quantum meruit claims are an example.Intention to be legally boundIn commercial agreements it is presumed that parties intend to be legally bound unless the parties expressly state the opposite as in a heads of agreement document. For example, in Rose & Frank Co v JR Crompton & Bros Ltd an agreeme

30、nt between two business parties was not enforced because it contained an honour clause which stated the parties wish that the agreement not be reviewed or enforced by a court.In contrast, domestic and social agreements such as those between children and parents are typically unenforceable on the bas

31、is of public policy. For example, in the English case Balfour v. Balfour a husband agreed to give his wife 30 a month while he was away from home, but the court refused to enforce the agreement when the husband stopped paying. In contrast, in Merritt v Merritt the court enforced an agreement between

32、 an estranged couple.ConsiderationConsideration is something of value given by a promissor to a promisee in exchange for something of value given by a promisee to a promissor. Typically, the thing of value is a payment, although it may be an act, or forbearance to act, when one is privileged to do s

33、o, such as an adult refraining from smoking. This thing of value or forbearance from some legal right is considered to be a legal detriment. In the exchange of legal detriments, a bargain is created. In the United States, the emphasis has shifted to the process of bargaining as exemplified by Hamer v. Sidway (1