《契约简论侵权行为外文翻译资料（可编辑） .doc》由会员分享，可在线阅读，更多相关《契约简论侵权行为外文翻译资料（可编辑） .doc（16页珍藏版）》请在三一办公上搜索。
1、契约简论侵权行为外文翻译资料 附件: 1.外文资料翻译译文;2.外文原文完成日期:1.Briefly on contractsThe law of contracts is concerned with the enforcement of promissory obligations. Contractual liability is usually based on consent freely given in the form of an express promise or one implied in fact from the acts of the parties. In so
2、me circumstances, however, the courts will imply a promise often called implied in law or quasi contract in order to avoid unjust enrichment in spite of lack of consent by the party who is bound by it.The subject matter of contract law comprises capacity, formalities, offer and acceptance, considera
3、tion, fraud and mistake, legality, interpretation and construction, performance and conditions of performance, frustration and impossibility, discharge, rights of assignees and third party beneficiaries, and remedies. It has, to a very considerable extent, preserved its unitary quality , resisting f
4、undamental distinctions between different classes of contracts according to either the subject of the agreement or the nature of the parties.Accordingly, with some exceptions, its principles are applicable to agreements on such varied subjects as employment, sale of goods or land, and insurance, and
5、 to such diverse parties as individuals, business organizations, and governmental entities.It is largely state rather than federal law, but it differs usually only in detail from one state to anther. While it is still primarily case law, an increasing number of statutes deal with particular problems
6、. The Uniform Commercial Code, for example, contains some special provisions on the formation of contracts for the sale of goods. And by the Tucker Act of 1887, as amended, one of the most significant of the federal statutes in the field, the United States government has waived its sovereign immunit
7、y in contract actions by consenting to suit in the federal courts. Some rules laid down by statute, and by case law as well, are mandatory or compulsory and cannot be avoided by the parties, while others are implicative, interpretative, or suppletory and can be varied by agreement.A contract may be
8、simply defined as a promise for the breach of which the law gives a remedy , although the word “contract” may also be used to refer to the series of acts by which the parties expressed their agreement, to the document which they may have executed, or to the legal relations which have resulted. Not a
9、ll promise are enforceable and several criteria must be met before the law will give a remedy. Two of the most fundamental of these are the requirement of a writing and requirement of considerationthe requirement of a writing is imposed by statutes of frauds, derived from the English Statute of Frau
10、ds of 1677, which have been enacted throughout the United States. Typically they provide that, with some exceptions, specified kinds of contracts are unenforceable unless evidenced by a writing. They usually cover contracts to sell goods of more than a minimum value, contracts to sell land, contract
11、s to answer for the debt of another, and contracts not to be performed within a year. Many agreements, such as most contracts to furnish services, are not included and are enforceable even if there is no writing. Although dissatisfaction has led to the repeal of most of the English Statute of Frauds
12、 in 1954,there has been no serious movement for its abolition in the United States.apart from any requirement of a writing, a promise is not generally enforceable in the United States unless it is supported by consideration. Historically a promissory could make a binding written promise, even withou
13、t consideration, by affixing his wax seal to the writing. But as the wax seal was replaced by a penned or printed imitation, the seal became an empty formality and its effectiveness has now been eliminated or at least greatly diminished by state statutes. Consideration is essentially something for w
14、hich the promisor has bargained andwhich he has received in exchange for his own promise. It may be another promise given in return, in which case the resulting contract is known as a bilateral contract, or it may be an act given in return, in which case the resulting contract is known as unilateral
15、 contract. But , for example, a gratuitous promise, including one to pay for goods or services which have already supported by consideration. Fortunately there are only a few such instances of business promises in which the requirement of consideration is not met. One of the most troublesome involve
16、s the “firm”, or irrevocable, offer. The usual rule in the United States is that an offeror has the power to revoke his offer at any time before its acceptance by the offeree, and a promise by the offeror not to revoke is not generally effective unless supported by consideration. A common device for
17、 holding the offeror to his promise is the payment to him of a nominal sum, for example one dollar, as consideration for what is then known as an “option.” Even without consideration a few courts have held that the offeror was estopped, or precluded, from revoking his offer where the offeree relied
18、to his detriment upon the promise. But the most satisfactory solution has been through legislation, adopted in a number of states, making an offer irrevocable, regardless of consideration, if it is embodied in a signed writing which states that it is irrevocable. As this suggests, the tendency has b
19、een to attempt to remedy the deficiencies of the doctrine of consideration rather than to discard it.In the United States, contracts, like statutes, are characteristically detailed and prolix. Those prepared by lawyers are often compounded of standard clauses, popularly known as “boiler-plate,” take
20、n from other agreements kept on file or from books. Even when a lawyer is not directly involved, the parties may use or incorporate by reference a standard printed form which has been drafted by a lawyer, perhaps for a particular enterprise, perhaps for an association of enterprises, or perhaps for
21、sale to the general public. This attention to detail may be due to a number of causes, including the standardization of routine transactions, the frequent involvement of lawyers in all stages of exceptional transactions, the inclination to use language which has been tested in previous controversies
22、, and the desire to avoid uncertainty when the law of more than one state may be involved. All of these add to the general disposition of the case-oriented American lawyer to provide expressly for specific disputes which have arisen in the past or which might be foreseen in the future.A related phen
23、omenon is the widespread use of standard forms “contracts of adhesion,” such as tickets, leases, and retail sales contracts, which are forced upon the party with inferior bargaining power. In recent years, courts and legislatures have become increasingly concerned with the effects which unrestrained
24、 freedom of contract may have in such situations. Courts which had always refused to enforce agreements contemplating crimes, torts, or other acts which were clearly contrary to the public interest, began, under the guise of interpreting the contracts, to favor the weaker party and in extreme cases
25、to deny effect to terms dictated by one party even where the subject of the agreement was not in itself unlawful. Legislatures enacted statutes fixing terms , such as miximum hours and minimum wages for employment, or even prescribing entire contracts, such as insurance policies, and gave administra
26、tive bodies the power to determine rates and conditions for such essential services as transportation and electricity. Nevertheless, in spite of the erosion of the doctrine of freedom of contract in many areas, the doctrine is still the rule rather than the exception译文:1.契约简论契约法所关心的是实现所约定的义务。通常,契约责任
27、是以自由同意为基础的。这种同意表现为当事人明示的允诺或事实上由当事人通过行为而默示允诺。但在某些情况下尽管受约束的一方并未同意,法院仍会推定允诺之存在(往往称为由法律推定的契约即准契约),以免有人不当得利。契约法的内容,包括能力、形式、要约与承诺、约因、欺诈与错误、合法与否、解释与推定、履行及其条件、契约目的无法达到和契约无法履行、免责、受让人及受益的第三人之权利和补救方法。契约在很大范围内保持着统一性而按照协议之内容或当事人之性质排斥了不同种类契约之间的基本区别。因此,除若干例外情况外,契约法原则适用于诸如个人、企业和政府实体等不同的当事人。契约法大多是州法不是联邦法,但各州之间的契约法只有
28、细节之别。契约法主要虽仍为案例法,但处理具体问题的制定法日益增多了。例如,美国统一商法典就对商品销售合同之形成设有若干具体规定,而根据作为在这方面最重要的联邦法之一的1887年塔克法(已经修正的),美国政府已因同意在各联邦法院应诉而在契约诉讼中放弃了主权豁免。某些由制定法(以及案例法)规定的规则是强制的,当事人不得避免;而另一些规则则是含蓄的、解释性的、补充性的,因而可以由协议改变之。不妨把契约简单地规定为一种允诺。允诺一旦遭到违反,法律就予以补救;虽然,“契约”一词亦可用来指当事人借以表示其协议的一系列行为、指双方当事人所制作的文契或指其所形成的法规关系。并非一切允诺都是可以执行的,在法律予
29、以补救之前,允诺必须发和几项标准。其中最重要的两项,是必须有书面形式和必须有约因。书面要件,是由英国1677年欺诈防止法所派生、颁布于美国全国的欺诈防止法所规定的。欺诈防止法一般都规定:特定种类的契约如无书面证明不得执行;但也有例外。通常,这些特定契约包括超过最低价值的商品销售契约、土地买卖契约、承担他人债务的契约和一年后履行的契约。许多协议(如大多数提供服务的契约)则不包括在内,因此即使没有书面形式也能执行。虽然人们的不满导致英国于1954年废除了英国欺诈防止法的大部分,但在美国却没有认真要求废止欺诈防止法的动向。在美国,除要求书面形式外,允诺如无约因的支持,一般也是不能执行的。历史上,允诺
30、人甚至没有约因,也能在文书上盖用火漆印而作出由约束力的书面允诺。但随着火漆印为钢笔或印刷的复制品所取代,印章也就徒有其名了。因此,其效力现已被制定法所取消,至少也已被制定法所大大限制了。约因主要是允诺人要谈判到手,而且也是允诺人以其允诺换来的某事物。约因可以是对方所回报的另一个允诺(这样形成的契约就是双务契约)或一个行为(这样形成的契约便是单务契约)。但是,比如说,一个无偿允诺(其中也包括因作出允诺时早已提供了的商品和劳务而作出的允诺在内)是没有约因支持它的。幸好,不符合约因要求的商业允诺,其实例寥若晨星。其中最麻烦的情况之一,涉及到“硬”要约,即不可撤回的要约。在美国,通常的规则是:要约人能
31、在要约经被要约人承诺之前随时撤回,而且要约人关于不撤回要约之允诺,如无约因一般是无效的。使要约人信守允诺的常用办法,是向他支付一笔有名无实金额(如一美元),作为取得因而被称作“选择权”者之对价。即使没有约因(对价),少数法院也主张:被要约人因相信允诺而蒙受损害时,要约人不得出尔反尔,撤回其要约。但是最令人满意的解决办法,是通过立法(这是某些州的办法)规定要约不问有无约因只要具备签了名的书面形式而且记明不得撤销者,一律不得撤销。由此可见,发展的趋势是弥补约因论的缺点而不是摒弃约因论。在美国,契约也同制定法那样,是以详细和冗长为其特征的。由律师拟定的契约往往由标准条款组成,这种条款或取自己归档的其
32、它契约,或来自书本,俗称为“做成纸型的”条款。即使没有律师直接参与其事,当事人也可以直接采用或参照吸收一种标准格式。这种格式早由律师拟定以供某企业或企业联合会之用或公开发售。美国企业特别重视细节,这也许是有一些原因的。其中包括:常规性交易的标准化、特殊性交易之每一阶段往往都有律师参与其事、倾向于使用在过去纠纷中经过考验的语言以及希望能在所涉及的是不止一个州的法律时防止捉摸不定的一种愿望。所有这一切更使得以案例为中心的美国律师增强下列愿望:就过去业已发生或今后可以预见的争端,在契约中作出明文规定。一个与此有联系的现象时诸如发售的票子、租赁契约和零售契约之类强加于谈判力差的一方的标准式“单方面契约
33、(合同)”之广泛使用。近些年来,法院和立法机构对在上述情况下契约自由竟会丝毫不受限制的后果越来越感到关切。过去一向对企图犯罪、侵权或为其它明显违反公共利益行为的协议拒不予以执行的法院,现在已开始以解释契约的名义偏护处于劣势的一方,并在趋于极端的案件中拒不承认由一方当事人单方面说了算的条款有任何效力尽管协议内容本身并无违法之可言。立法机关也颁布了规定诸如雇佣契约中最高工作时数和最低工资之类的条件甚至规定了整个契约(如保险单之类)并予行政机关以规定诸如运输业和电力业的价格和条件的权力。契约自由论虽已在许多领域遭受侵蚀,但仍不失其为原则而尚未成为例外。2.TortsLeading legal wri
34、ters agree that no one has satisfactorily defined a tort. this is partly because torts are so common, so widespread and so varied. You are far more likely to be the victim of a tort than of a crime, and you are also far more likely to commit a tort than a crime.A tort is a civil wrong against an ind
35、ividual. A crime , on the other hand, is an offense against the public at large, or the state. An automobile driver who carelessly bumps into your car in a parking lot and crumples the fender had committed no crime.Suppose, however, that after leaving the parking lot the same driver goes to a nearby
36、 bar, downs six whiskeys, then careens through a crowded city street at fifty miles an hour. Now he has committed at least these crimes: drunken driving, reckless driving and endangering the lives of others. But unless he actually damages another car or injures someone he has not violated the rights
37、 of nay individual.A crime, then, is wrongful act against society. When a crime is committed, it is the states responsibility to investigate, prosecute and bear the expense of legal acting against the defendant, in the court handling criminal matters.A tort, on the other hand, is an act that violate
38、s your private or personal rights. If you believe someone has violated your personal rights?but has not acted against the interests of the public as a whole?it is entirely up to you to seek relief by suing him in the civil courts. If the person who you believe has legally aggrieved you is found liab
39、le?that is , if the judge or jury finds that he did in fact injure you or your property?he may be required a to give you relief by paying you “damages” for the injury or property loss you suffered, b to discontinue his wrongful acts or c to restore to you what he took from you. In rare cases he may
40、be imprisoned. All monetary damages awarded to you by the court in your suit are of course yours to keep. By the same token, the cost of hiring a lawyer to handle your case is your own personal expires whether you win or lose the case. Even a defendant who wins must bear his own legal costs.If the t
41、ort is also a crime, two separate legal actions confront the wrongdoer: yours and the states. we will discuss later the effect of these actions on each other. But they are independent of each other.A tort is usually committed when someone injures you physically, damages or misuses your property, att
42、acks your reputation without justification or takes away your liberty and freedom of action without just cause. To recover damages for a tort you must prove either that the act was committed with deliberate intent as when someone circulated a letter calling you a thief or that it was the result of n
43、egligence as in the case of the driver in the parking lot who carelessly hit your car when he had a duty to drive carefully.In most cases you must prove that the act inflicted actual damage or injuries. A malicious act that does you no harm, such as a threat to punch you in the nose or a shove in a
44、crowded subway, is not a sufficient cause for legal action.Nor are you likely to recover damages from a neighbor when the healthy-looking elm tree in his yard crashes down on your roof in a windstorm. The crash was not something he intended, nor was it the result of his negligence.A person who is pr
45、oved to have committed a tort have resulted from his act. A motorist who sideswipes your car, causing you to serve and hit a pedestrian, is responsible for damages both to you for the injure to your car and to the pedestrian for his dental expenses in replacing the false teeth knocked ort when your
46、car hit him. A mugger who attacks you on the street, leading you, in defending yourself, to raise your umbrella so quickly that you hit a passerby, is responsible both to you for the shock to your nervous system and to the passerby for the cost of stitching up his scalp. He is also guilty of a crime
47、 and can be arrested and prosecuted.Generally speaking, any person, young or old, mentally competent or not, is responsible for his torts: for the consequences of his actions to others injured by those actions. The same person who in the eyes of the law is not mentally competent to commit a crime ma
48、y nonetheless be held liable for committing a tort.Almost all employers are liable for the torts of their employees if the employee committed the harmful act during the course of his employment. The law usually holds an employer liable for what happens when his employee is carrying ort his instructi
49、ons and working on his behalf. But not all employers?especially not governmental ones.The doctrine of sovereign immunity?that the state cannot be sued except by its own consent?severely limits your right to sue governments and governmental bodes for the torts of their employees.Some people may not be held liable in tort actions. Among them are bus bands and wives. Who are not considered responsible for each others torts, and parents, who are not usually liable for the torts
