国际商法3 Enforceability of Contract

单击此处编辑母版标题样式,*,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,Unit 3 Enforceability of Contract,中国法下合同生效的条件,1） 缔约能力,2）意思真实,3）不违反法律和公序良俗,4）符合形式要求,1,Capacity of Parties,Capacity means the ability to incur legal obligations and acquire legal rights. Today, the primary classes of people who are considered to lack capacity are minors, persons suffering from mental illnesses or defects, and intoxicated persons.,2,Effect of Lack of Capacity,Normally, a contract in which one or both parties lack capacity because of infancy, mental impairment, or intoxication is considered to be avoidable.,3,Capacity of Minors,A minor is a person under the age of 18. The law usually adopts a particularly protective attitude towards minors.,The exercise of this right to avoid a contract is called disaffirmance. The right to disaffirm is personal to the minor. That is , only the minor or a legal representative such as a guardian may disaffirm the contract.,4,In UK,The general rule is that a minor is not bound by a contract which he enters into during his minority. But the rule is subject to some exceptions.,a. A contract to supply a minor with necessaries is binding upon the minor where the contract as a whole is for the benefit of the minor.,b. A minor is bound by a contract of employment if that contract is generally for his benefit.,c. Certain contracts with minors are not void but only avoidable, that is, the contract is valid and binding upon the minor unless he repudiates liability before majority or within a reasonable time thereafter.,5,Exercise: Nash v. Inman,A tailor sold 11 fancy waistcoats to a minor, who was Cambridge undergraduate. The minor refused to pay for them. The tailor sued to the court?,If you were the judge, who would you support?,6,Capacity of Mentally Impaired Persons,The contracts of people who are suffering from a mental defect at the time of contracting are usually considered to be avoidable. But the mental impaired person needs to prove his mental capacity was inferior when he made the decision.,7,Contracts of Intoxicated Persons,Intoxication and Capacity,Intoxication can deprive a person of capacity to contract. The mere fact that a party to a contract had been drinking when the contract was formed would not normally affect his capacity to contract. Intoxication is a ground for lack of capacity only when it is so extreme that the person is unable to understand the nature of the business at hand.,8,Capacity of civil conduct in China (,中国对当事人能力的规定),民事行为能力是指民事法律关系主体通过自己的行为取得民事权利、承担民事义务的能力。,(1) full capacity: A citizen aged 18 or over shall be an adult. He shall have full capacity for civil conduct, may independently engage in civil activities and shall be called a person with full capacity for civil conduct.A citizen who has reached the age of 16 but not the age of 18 and whose main source of income is his own labour shall be regarded as a person with full capacity for civil conduct.,(l)完全民事行为能力的人。十八周岁以上的公民是成年人，具有完全民事行为能力。对于十六周岁以上不满十八周岁的公民，如果是以自己的劳动收人为主要生活来源的，亦视为有完全民事行为能力的人。他们都可以独立进行民事活动，包括订立各种合同。,9,Limited capacity,A minor aged 10 or over shall be a person with limited capacity for civil conduct and may engage in civil activities appropriate to his age and intellect; in other civil activities, he shall be represented by his agent ad litem (guardian) or participate with the consent of guardian.A minor under the age of 10 shall be a person having no capacity for civil conduct and shall be represented in civil activities by guardian.,(2)限制民事行为能力的人。十周岁以上的未成年人是限制民事行为能力人，他们可以进行与其年龄、智力相适应的民事活动；至于其他民事活动应由其法定代理人代理，或者征得其法定代理人的同意。不能完全辨认自己行为的精神病人是限制民事行为能力人，他们可以进行与他的精神健康状况相适应的民事活动；其他民事活动由其法定代理人代理，或者征得其法定代理人的同意。,10,No capacity,A mentally ill person who is unable to account for his own conduct shall be a person having no capacity for civil conduct and shall be represented in civil activities by his guardian.A mentally ill person who is unable to fully account for his own conduct shall be a person with limited capacity for civil conduct and may engage in civil activities appropriate to his mental health; in other civil activities, he shall be represented by his agent ad litem or participate with the consent of his guardian.,(3)无民事行为能力的人。无民事行为能力人包括：不满十周岁的未成年人；不能辨认自己行为的精神病人。无民事行为能力人不能实施有效的法律行为，他们签订的合同是无效的。,11,中国法下的意思真实,重大误解,胁迫,欺诈,显失公平,12,重大误解,重大误解：指当事人因对其行为的性质，对方当事人，标的物的品质等事实发生误解而做出的与其真实意思不一致的意思表示。如果这种错误严重到使双方真实的合意受到极大的影响，则可能导致合同无效或者撤消的后果。,中国合同法上可以撤销的错误的特征：,1）重大误解才能构成合同可撤销的理由。,2）我国法上的错误，还要求造成重大损失,3）合同撤销后可以要求赔偿。,13,胁迫,胁迫是指使他人发生恐惧为目的的一种故意行为。,胁迫的法律构成：,a. 应当有胁迫的事实,b. 胁迫具有非法性,c. 胁迫与合同订立之间有因果关系,d. 胁迫必须达到足以影响当事人意思自由的程度,经济胁迫,指当事人一方滥用其优势地位以及相对方的需要，以暴力强迫以外的方式迫使合同方接受合同条件的情形。,14,欺诈,欺诈：指一方当事人故意告知对方虚假信息，或者故意隐瞒真实情况，诱使对方当事人作出错误的意思表示的行为。,欺诈的类型：,a. 积极欺诈：以积极的言辞，提供虚假情况,b. 消极欺诈：具有对事实说明义务的行为人违反义务，故意不作说明,欺诈的法律构成：,a. 必须有欺诈的事实,b. 欺诈的手段超出法律，道德或交易习惯所能允许的限度,c. 欺诈必须成立于订约前,d. 欺诈必须使对方当事人产生合理的信赖,e. 主观故意,15,显失公平,一方当事人利用优势或者利用对方没有经验，致使双方的权利与义务明显违反公平，等价有偿原则的，可以认定为显失公平。,显失公平的法律构成：,a.双方权利，义务显著地不平等,b.导致显示公平的原因必须是受害人缔约时处于显著不利的地位。（因乘人之危而显失公平）,16,英美合同法下的意思真实,1. 虚假陈述/误述(Misrepresentation）,2. 胁迫 (duress),3. 不当影响（Undue Influence),4. 错误 (mistake),17,Misrepresentation and Fraud,A misrepresentation is an assertion that is not in accord with the truth. When a person enters a contract because of his justifiable reliance on a misrepresentation about some important fact, the contract is avoidable. It is not necessary that the misrepresentation be intentionally deceptive. Misrepresentations can be either “innocent(not intentionally deceptive ) or “fraudulent ( made with knowledge of falsity and intent to deceive ).,Fraud is the type of misrepresentation that is committed knowingly, with the intent to deceive.,18,Misrepresentation and Fraud,A person seeking to rescind a contract on the ground of innocent or fraudulent misrepresentation must be able to establish each of the following elements:,1 an untrue assertion of fact was made,2 The fact asserted was material or the assertion was fraudulent.,3 The complaining party entered the contract because of his reliance on the assertion.,4 The reliance of the complaining party was reasonable,19,Mistake,In contract law, a mistake is a belief about a fact that is not in accord with the truth. The mistake must relate to facts as they exist at the time the contract is created.,Requirements for Mutual Mistake,A mutual mistake exists when both parties to the contract have erroneous assumptions about the same fact. When both parties are mistaken, the resulting contract can be avoided if the three following elements are present:,1 The mistake relates to a basic assumption on which the contract was made.,2 The mistake has a material effect on the agreed-upon exchange.,3 The party adversely affected by the mistake does not bear the risk of the mistake.,20,Duress,Duress is wrongful coercion that induces a person to enter or modify a contract. One kind of duress is physical compulsion to enter a contract. A far more common type of duress occurs when a person is induced to enter a contract by a threat of physical, emotional, or economic harm. In these cases, the contract is considered avoidable at the option of the victimized person.,A. duress to person,B. duress to goods,C. economic duress,Requirements for Duress,To rescind a contract because of duress, one must be able to establish both of the following elements:,1. The contract was induced by an improper threat or coercion of the will.,2. The victim had no reasonable alternative but to enter the contract.,21,Factors taken into account,In determining whether there has been illegitimate pressure, the court takes into account a range of factors. These include whether there has been an actual or threatened breach of contract; whether the person allegedly exerting the pressure has acted in good or bad faith; whether the victim has any realistic practical alternative but to submit to the pressure; whether the victim protested at the time; and whether he affirmed and sought to rely on the contract. Illegitimate pressure must be distinguished from the rough and tumble of the pressures of normal commercial bargaining.,22,胁迫的案例,在1915年马斯金尔诉豪纳案中，被告拥有一市场，他向原告征收营业地皮费。因原告拒付，被告扣押了其货物；后来原告被迫给付并声称以后每年都付费。此后因被告收费权被宣布为非法，原告起诉。法庭裁定，原告给付订约是基于对方胁迫而做出的，故可诉请返还。,23,Economic Duress,The doctrine of duress is often applied in a business context. Economic duress, or business compulsion, are terms commonly used to describe situations in which one person induces the formation or modification of a contract by threatening another persons economic interests.,24,经济胁迫的案例,例如在1983年宇宙卫士海运股份公司诉国际运输工人联合会案中，原告是利比里亚一海运公司，其公司全部股东均住在美国，该公司的宇宙卫士号货船(悬挂利比里亚国旗)从利比里亚载物准时运达英国明福特哈温港。该船船员主要为亚洲人，由于他们的工资水平按照国际运输工人联合会的规定过低，故该联合会号召工人拒绝为该船卸货，使之不能离港。该联合会声明，除非原告公司捐助80万美元作为海员国际福利基金，否则不予卸货，原告公司被迫给付捐款后起诉追偿。法庭裁定，这一支付是在经济胁迫下做出的；并且按照有关工业法规，此类给付要求也并不合法；故原告有权追回付款,25,Undue Influence,Undue influence is unfair persuasion. Like duress, undue influence involves wrongful pressure exerted on a person during the bargaining process. In undue influence, however, the pressure is exerted through persuasion rather than through coercion. The doctrine of undue influence was developed to give relief to persons who are unfairly persuaded to enter a contract while in a position of weakness that makes them particularly vulnerable to being preyed upon by those they trust or fear.,Undue influence cases normally involve both of the following elements:,1 The relationship between the parties is either one of trust and confidence or one in which the person exercising the persuasion dominates the person being persuaded.,2 The persuasion is unfair.,26,Two different types of undue influence,(1) presumed undue influence,The following relationships are presumed to be fiduciary relationship: parent and child; trustee and beneficiary; doctor and patient; solicitor and client; guardian and ward,When these relationships exist, the party with weak bargain power can resort to the court for contract cancellation.,(2) actual undue influence,When the fiduciary relationship is absent, the plaintiff can prove that the defendant has exerted undue influence.,27,Presumed undue influence,There appears to be three elements to a case of presumed undue influence.,1. the claimant must prove that he placed trust and confidence in the defendant in relation to the management of his affairs;,2. the claimant must prove the transaction “ calls for expanation”.,3. defendants attempt to reut the inference of unde influence,28,推定非适当影响案例,在1971年赫金森诉马克斯案中，某老年寡妇(原告)拥有一项房产，她的房客百般讨好她，而她放心地信任他，该房客实际上成了她的事务总管。后来原告为防止其侄赶走该房客，竟将该房产出让给他。双方履行过户登记手续后口头约定，原告在世时仍具有该房产之所有权。此后该房客将房子转卖给第三人，买主对这些事实不详。后原告诉请买主返还法庭裁定，由于上述房客已取得原告的特别信任，因此应推定合同建立在非适当影响的基础上；其次，尽管本案买主真诚订约，但他已经知悉原告对房产的实际占有情况，因此原告胜诉,29,Case: actual undue influence,Commercial Bank of Australia Ltd v. Amadio,A father sought to rescind a mortgage which he had executed the mortgage because he was frightened by the bankers warning or threat that he had it in his power to prosecute his son for forgery. It was held that he was entitled to rescind the mortgage on the ground of undue influence.,30,Illegality,Illegal agreements will be classified into three main categories: (1) agreements that violate statutes, (2) agreements that violate public policy developed by courts, and (3) unconscionable agreements and contracts of adhesion.,31,Illegal contract,In common law system, a court will not enforce a contract which is illegal or which is otherwise contrary to pubic policy. Nor, as a general rule, will they permit the recovery of benefits conferred under such a contract.,Case: Pearce v. Brooks, the claimants were coachbuilders who hired out an ornamental brougham ( or carriage) to the defendant. The defendant was a prostitute and she planned to use the brougham to attract her customers. This fact was known to the claimants. The defendant returned the brougham in a damaged condition, having paid only the second installment on it. The claimants action for damages for breach of contract failed.,32,Classification of illegality,A. contract prejudicial to pubic relations,contracts which are prejudicial to foreign friendly countries, to facilitate the forcible overthrow of the government of a friendly country, which are prejudicial to the interests of the state, trading which the enemy are unenforceable；,例如在1925年帕金森诉安布兰斯学会案中，被告协会的代表向原告诉诺：如果原告向其学会捐赠一笔钱，他就能得到爵士头衔。后原告因未能取得该头衔而诉请收回捐款，法院判决原告败诉，因为该合同属于违反公共政策的非法合同,33,classification of illegality,B. contracts prejudicial to the administration of justice,Contracts to stifle a prosecution may be illegal and a contract under which one party promises to give false evidence in criminal proceedings , to abuse the legal process by encouraging litigation which is not bona fide are contrary to public policy.,C. contracts in restraint of trade,an employee not to compete with his employer either during or after is employment;,the seller of a business and its goodwill not to carry on a business which will compete with the business bought by the purchase,34,D. Restrictive trading,Esso Petroleum Ltd v. Harpers Garage Ltd,A garage company, which owned two garages, entered into a solus agreement with Esso under which it agreed to buy all its petrol from Esso, to keep the garage open at all reasonable hours and not to sell the garage without ensuring that the purchaser entered into a similar agreement with Esso. One agreement was to last 5 years and the other for 21 years. In effect, the garage owners were tied to Esso for 21 years. It was held that the 21 year agreement was invalid, but the 5 year agreement with Esso was valid.,35,Consideration （约因或对价 ）,Consideration is a complex term in common law, While in civil law system or CISG and PICC, there is no requirement of consideration to constitute a contract.,In common law, consideration is necessary for the validity of every contract not under seal. A promise without consideration is a gift; one made for consideration is a bargain. And the promisee can not enforce a gift in the court.,约因是英美法中一个重要而且复杂的概念。对确定一个合约是否有效，包括商贸活动中常有的事后更改合约(variation)，追加协议（additional agreement), 和解协议等是否有效，非常重要。,英国法律认为约因是“订约双方愿意去受法律约束的唯一证据” ( only evidence of the intention of the parties to be bound ),36,Whats consideration,法律上认可的对价（约因）的定义：“ 对受诺人有损失，或对承诺人有利益 ”A valuable consideration, in the sense of he law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.,约因要有价值，一般最常见的是金钱。但也可以是其他的形式，如权益的放弃，提供服务或消息，修改原先合约，以后的生意，及可以想象到的“好处”。,37,Adequacy of Consideration,General Rule:,The first rule of the doctrine of consideration is that consideration must be sufficient but it need not be adequate.,It means that as long as the promisees act or promise satisfies the legal value test, the courts do not ask whether that act or promise was worth what the promisor gave, or promised to give, in return for it.,Case: Hong Kong International Arbitration Center,38,Moral obligation,Case: White v. Bluett,A son promised not to bore his father with complaints about the fathers distribution of his property among his children was held not to be good consideration for the fathers promise not to sue the son.,The opposite case: Hamer v. Sidway: an uncle promised to pay his nephew 5000 if the nephew refrained from drinking liquor, using tobacco, swearing and playing cards untl he was 21. This promise was held to be enforceable because the nephew had a legal right to engage in such activities, and in giving up his rights he had provided consideration for the promise.,39,Preexisting Legal Duties,1) The question whether performance of a duty which one is already under an obligation to perform can constitute consideration for a promise given in return is currently a very controversial one in English contract law.,2) The orthodox position is clear: performance of an existing duty imposed by law does not constitute consideration.,3) case: Ward v. Byham. The father of an illegitimate child promised to pay the mother of the child 1 pound per week provided that the child was well looked after and happy. The mother was under a legal duty to look after the child. The mother sued the father when he stopped making the payments. The father argued that the mother had not provided any consideration for his promise.,40,Preexisting Contractual Duties,Until recently the rule which English law adopted was that performance of an existing contractual duty owed to a promisor was no consideration for fresh promise given by that promisor.,41,Case: Stilk v. Myrick (1809),Stilk was a seaman who agreed with the defendants to sail to the Baltic and back at a rate of pay of 5 pound per month. Originally, there were eleven men in the crew, but two men deserted during the voyage. The master was unable to find replacements for the deserters and so he agreed with the remainder of the crew that he would share the wages of the two deserters between them if they would work the ship back to London. The crew members agreed. When they returned to London, Stilk demanded his share of the money but the master refused to pay. Stilk sued for the money. He was unsuccessful in his claim.,42,Williams v. Roffey Bros &Nicholls Ltd,The defendant contractors entered into a contract to refurbish a block of flats. They sub-contracted the carpentry work to the claimant for price of 2000 pound. The claimant ran into financial difficulties after having completed part of the work. The cause of his difficulties was partly attributable to the fact that he had underpriced the job and partly because of his own inability to supervise his workforce. It was in the interest of the defendants to ensure that the claimant completed the work on time because if, as a result of delay or non-performance by the claimant, the defendants were late in completing the work and they would incur liability to their employers. So the defendants agreed to pay an extra 10300 to ensure that the work was completed on time. The claimant subsequently finished eight more flats but defendant only paid 1500. The claimant sued to the court.,The court of Appeal adopted a very pragmatic approach to the issue. They held that the defendants had obtained a practical benefit as a result of the claimants promise to continue the job. This is sufficient to constitute a consideration.,43,Trivial acts,The maxim that consideration must be sufficient but need not be adequate has resulted in very trivial acts being held to constitute consideration. The classic illustration is Chappell Co. v. Nestle 1960,Nestle offered for sale gramophone records in return for 1s 6d and three wrappers from their chocolate bars. The House of Lord held that the wrappers themselves, although of very trivial economic value, were nevertheless part of the consideration. This was so even though Nestle threw away the wrappers.,44,Compromise and forbearance to sue,A promise not to enforce a valid claim is good consideration for a promise given in return, as is a promise not to enforce a claim which is doubtful in law. On the other hand, it is clear that a promise not to enforce a claim which is known to be invalid is not good consideration for a promise given in return.,45,Cook v. Wright,The claimants honestly believed that the defendant was under a statutory obligation to reimburse them in respect of certain expenditure which they had incurred in work on a street adjoining the house in which the defendant was residing. The defendant denied that he was under such an obligation, but he eventually promised to pay a reduced sum after he was threatened with litigation if he did not pay. When he discovered that he was not in fact under a statutory obligation to pay, he refused to honor his promise. He maintained that his promise was not supported by consideration. But the court