LexisNexis合同法

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1、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 and may be ex

2、press 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 consideration. 1.

3、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 order to avoid

4、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 Contracts (curr

5、ently 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 state except L

6、ouisiana.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 including the United

7、 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 Restatement.6) Uniform

8、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 electronic communicati

9、ons.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 federal law allows

10、 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 to merchants

11、 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 minerals or th

12、e 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 removed from re

13、alty 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 severed by th

14、e 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 function of the con

15、tract 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 involved in the tran

16、saction 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 UCC 1-201(19)

17、 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 trade.6 Record De

18、finedThe 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 the like.Chap

19、ter 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 contractually bound.

20、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 Basis for Rem

21、edyA 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, on the other h

22、and, 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 effect of contr

23、act 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 electronic agent, e

24、.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 by the individ

25、ual 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.In contracts

26、 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 DefinedAn offer is a

27、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 not manifest an

28、 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 estimate is deeme

29、d 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 bound with al

30、l 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 auctioneer soli

31、cits 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 until received by

32、 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 whic

33、h the offeree must accept, it is assumed that the offeror intended to keep the offer open for a reasonable period of time, to be determined based on the nature of the proposed contract, trade usage, prior dealings and other circumstances of which the offeree knows or should know.Generally, the time

34、for accepting an offer begins to run from the time it is received by the offeree.If there was a delay in delivery of the offer of which the offeree is aware, the usual inference is that the time runs from the date on which the offeree would have received the offer under ordinary circumstances.Genera

35、lly, courts hold that in telephonic or face-to-face communications in which an offer is made, the offer lapses when the conversation terminates in the absence of a clear indication that the offer remains open beyond the conversation. 3.03 RevocationWith limited exceptions (see 2 below), an offer is

36、generally revocable at any time prior to acceptance.1 Communication of revocationAn offer may be revoked by any words that communicate to the offeree that the offeror no longer intends to be bound.An offer is also revoked by action that is inconsistent with the intent to be bound once the offeree le

37、arns of such inconsistent action.2 Offers that may not be revokedAn offer is irrevocable where:1)there is an option contract in which the offeree gave consideration for an irrevocable offer for some period of time;2)the offeree relied to his detriment upon an implied or express promise by the offero

38、r not to revoke if such detrimental reliance was foreseeable by the offeror;3)the offeree relied to his detriment upon the offer itself if the such detrimental reliance was reasonably foreseeable by the offeror Restatement 87(2)4)in the case of a unilateral contract, the offeree began performance of

39、 the promised act to any extent Restatement 45 Upon commencement of performance, the offeror must give the offeree the amount of time specified in the offer (or, in the absence of a specified time, a reasonable time) in which to complete the bargained-for promise.However, the offerees mere preparati

40、on to perform does not preclude the offeror from revoking.5)in goods contracts, a merchant indicates in a signed writing that an offer to buy or sell goods will be held open for the stated time or a reasonable time if no time is specified, not to exceed three months, if no consideration if given UCC

41、 2-2053 Effective time of revocationA revocation is effective upon receipt by the offeree.However, a few jurisdictions (e.g., California, Montana, South Dakota, North Dakota) provide by statute that revocations are to be treated similar to acceptances; thus, courts might interpret these statutes to

42、make a revocation of an offer effective when sent by the offeror. 3.04 Termination of the OfferAn offerees power to accept an offer is terminated by:the death or insanity of the offeror, even without notice to the offeree of such occurrencedeath or insanity of the offeree, unless an offer is irrevoc

43、able, such as in the case of an option contractdeath or destruction of a person or thing essential to performancethe offerees rejection of the offer, which cannot be reinstated by the offerees subsequent attempted acceptance.the offerees counter-offer, whichimpliedly manifests a rejection of the off

44、errevocation of the offerexpiration of the offerChapter 4ACCEPTANCE 4.01 Manner of Acceptance1 Traditional ApproachTraditionally, the nature of the contract dictated whether the offer could be accepted by a return promise or by actual performance of the promised act.a Acceptance by Performance; Unil

45、ateral ContractsIn a unilateral contract, the offer empowers the offeree to only accept by complete performance of the promise. The offerees failure to perform does not constitute a breach since no contract is formed until the offeree renders full performance.Acceptance by Return Promise; Bilateral

46、ContractsIn a bilateral contract, the offers empower the offeree to only accept by return promise.Bilateral contracts are formed upon the giving of the promise to perform an obligation in the future, and failure to fulfill such promise results in breach.2 Modern ApproachUnder the modern approach, an

47、 offer invites acceptance by any means reasonable under the circumstances, unless otherwise indicated by language or circumstances. UCC 2-206; Restatement 30(2)This approach reflects the fact that many offers do not specify whether acceptance is to be by full performance or promise.A contract may be

48、 formed even if an offer clearly indicates that acceptance is to be by promise if:1) the offeree begins to perform, in lieu of making the required promise; and2) the offeror learns of the commencement of performance and acquiesces to such manner of acceptance.3 Acts Inconsistent with Offerors Owners

49、hip or Receipt of BenefitsThe common law holds that one who receives goods with knowledge or reason to know that they are being offered for a price is bound by the terms of the offer if he exercises dominion or control over such goods or engages in any other act inconsistent with the offerors owners

50、hip.If the act wrongs the offeror, it is deemed a valid acceptance only if ratified by the offeror. Similarly, one who receives benefits from services that he knows or has reason to know are being offered with the expectation of compensation, and where he has a reasonable opportunity to reject them,

51、 is liable for the reasonable value or stated value of such services. Restatement 694 Acceptance by silenceSilence may not constitute an acceptance except where: based on prior dealings between the parties, it is reasonable that the offeree should notify the offeror if he does not intend to accept;

52、or where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer.Restatement 69 4.02 Medium of AcceptanceUnless the offeror indicates otherwise, the offeree may

53、 use any medium that is reasonable under the circumstances UCC 2-206(1)(a) or, in non-goods contracts, the same medium as was used to communicate the offer or any other medium customary in similar transactions at the time and place the offer is received.Restatement 65 4.03 Notice of AcceptanceThe of

54、feror is entitled to notice of the acceptance.Thus, even if the offeree effectively accepts an offer and a contract is formed, failure by the offeree to notify the offeror of the acceptance within a reasonable time may preclude the offerer from enforcing the contract. Restatement 54 and 561 Notice o

55、f Acceptance by PerformanceUnder common law, where an offer invites acceptance by performance, no notice is required to make the acceptance effective, unless the offeror so specifies.However, if the offeree has reason to know that the offeror has no adequate means of learning of the performance with

56、 reasonable promptness and certainty, the offerors contractual duty will be discharged unless: the offeree exercises reasonable diligence to notify the offeror of acceptance; or the offeror learns of the performance within a reasonable time; or the offer indicates that notification of the acceptance

57、 is not necessary.Restatement 54In transactions for the sale of goods, where commencement of performance is a reasonable mode of acceptance, if the offeror is not notified of acceptance within a reasonable time, he may treat the offer as having lapsed prior to acceptance. UCC 2-206(2)2 Notice of Acc

58、eptance by Return PromiseWhere the offeree accepts by promise, the offeree must exercise reasonable diligence to notify the offeror of the acceptance or ensure that the offeror seasonably receives the acceptance. Restatement 56 4.04 When an Acceptance Becomes EffectiveAn acceptance becomes effective

59、 according to the following rules:1) The offeror may specify when the acceptance will be effective.2) Absent such specification, an acceptance is effective when sent, if sent by reasonable means, e.g., by an authorized medium and with proper postage and correct address.3) If an acceptance is sent by

60、 means that are not appropriate or reasonable under the circumstances or if it is improperly dispatched, the acceptance will be effective upon receipt.Restatement 66However, if the acceptance is seasonably but improperly dispatched, it will still be deemed effective when sent if it is received withi

61、n the time in which a properly dispatched acceptance would have been received. Restatement 674) In the case of option contracts, an acceptance is not operative until received by the offeror. Restatement 63(b)5) In transactions governed by the CISG, the acceptance becomes effective when it reaches th

62、e offeror. 4.05 Late AcceptanceA number of approaches are applied to communications that are intended as an acceptance but sent after the offer expires:1) the communication may qualify as a counter-offer;2) the offeror may waive the lateness and honor the acceptance;3) if the acceptance is neverthel

63、ess sent within a reasonable time, albeit after the offers stated expiration, the acceptance is valid and results in the formation of a contract if the offeror does not reject it within a reasonable time;4) in transactions governed by the CISG, if the acceptance is late because of a delay in transmission that is apparent from the circumstances, a contract is formed unless the offeror informs the offeree that the acceptance is too late. 4.06 Terms of Acceptance1 Non-goods ContractsUnder the m