契約簡(jiǎn)論侵權(quán)行為外文翻譯資料（可編輯）

1、契約簡(jiǎn)論侵權(quán)行為外文翻譯資料 附件: 1.外文資料翻譯譯文;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譯文:1.契約簡(jiǎn)論契約法所關(guān)心的是實(shí)現(xiàn)所約定的義務(wù)。通常,契約責(zé)任

27、是以自由同意為基礎(chǔ)的。這種同意表現(xiàn)為當(dāng)事人明示的允諾或事實(shí)上由當(dāng)事人通過(guò)行為而默示允諾。但在某些情況下盡管受約束的一方并未同意,法院仍會(huì)推定允諾之存在(往往稱(chēng)為由法律推定的契約即準(zhǔn)契約),以免有人不當(dāng)?shù)美?。契約法的內(nèi)容,包括能力、形式、要約與承諾、約因、欺詐與錯(cuò)誤、合法與否、解釋與推定、履行及其條件、契約目的無(wú)法達(dá)到和契約無(wú)法履行、免責(zé)、受讓人及受益的第三人之權(quán)利和補(bǔ)救方法。契約在很大范圍內(nèi)保持著統(tǒng)一性而按照協(xié)議之內(nèi)容或當(dāng)事人之性質(zhì)排斥了不同種類(lèi)契約之間的基本區(qū)別。因此,除若干例外情況外,契約法原則適用于諸如個(gè)人、企業(yè)和政府實(shí)體等不同的當(dāng)事人。契約法大多是州法不是聯(lián)邦法,但各州之間的契約法只有

28、細(xì)節(jié)之別。契約法主要雖仍為案例法,但處理具體問(wèn)題的制定法日益增多了。例如,美國(guó)統(tǒng)一商法典就對(duì)商品銷(xiāo)售合同之形成設(shè)有若干具體規(guī)定,而根據(jù)作為在這方面最重要的聯(lián)邦法之一的1887年塔克法(已經(jīng)修正的),美國(guó)政府已因同意在各聯(lián)邦法院應(yīng)訴而在契約訴訟中放棄了主權(quán)豁免。某些由制定法(以及案例法)規(guī)定的規(guī)則是強(qiáng)制的,當(dāng)事人不得避免;而另一些規(guī)則則是含蓄的、解釋性的、補(bǔ)充性的,因而可以由協(xié)議改變之。不妨把契約簡(jiǎn)單地規(guī)定為一種允諾。允諾一旦遭到違反,法律就予以補(bǔ)救;雖然,“契約”一詞亦可用來(lái)指當(dāng)事人借以表示其協(xié)議的一系列行為、指雙方當(dāng)事人所制作的文契或指其所形成的法規(guī)關(guān)系。并非一切允諾都是可以執(zhí)行的,在法律予

29、以補(bǔ)救之前,允諾必須發(fā)和幾項(xiàng)標(biāo)準(zhǔn)。其中最重要的兩項(xiàng),是必須有書(shū)面形式和必須有約因。書(shū)面要件,是由英國(guó)1677年欺詐防止法所派生、頒布于美國(guó)全國(guó)的欺詐防止法所規(guī)定的。欺詐防止法一般都規(guī)定:特定種類(lèi)的契約如無(wú)書(shū)面證明不得執(zhí)行;但也有例外。通常,這些特定契約包括超過(guò)最低價(jià)值的商品銷(xiāo)售契約、土地買(mǎi)賣(mài)契約、承擔(dān)他人債務(wù)的契約和一年后履行的契約。許多協(xié)議(如大多數(shù)提供服務(wù)的契約)則不包括在內(nèi),因此即使沒(méi)有書(shū)面形式也能執(zhí)行。雖然人們的不滿(mǎn)導(dǎo)致英國(guó)于1954年廢除了英國(guó)欺詐防止法的大部分,但在美國(guó)卻沒(méi)有認(rèn)真要求廢止欺詐防止法的動(dòng)向。在美國(guó),除要求書(shū)面形式外,允諾如無(wú)約因的支持,一般也是不能執(zhí)行的。歷史上,允諾

30、人甚至沒(méi)有約因,也能在文書(shū)上蓋用火漆印而作出由約束力的書(shū)面允諾。但隨著火漆印為鋼筆或印刷的復(fù)制品所取代,印章也就徒有其名了。因此,其效力現(xiàn)已被制定法所取消,至少也已被制定法所大大限制了。約因主要是允諾人要談判到手,而且也是允諾人以其允諾換來(lái)的某事物。約因可以是對(duì)方所回報(bào)的另一個(gè)允諾(這樣形成的契約就是雙務(wù)契約)或一個(gè)行為(這樣形成的契約便是單務(wù)契約)。但是,比如說(shuō),一個(gè)無(wú)償允諾(其中也包括因作出允諾時(shí)早已提供了的商品和勞務(wù)而作出的允諾在內(nèi))是沒(méi)有約因支持它的。幸好,不符合約因要求的商業(yè)允諾,其實(shí)例寥若晨星。其中最麻煩的情況之一,涉及到“硬”要約,即不可撤回的要約。在美國(guó),通常的規(guī)則是:要約人能

31、在要約經(jīng)被要約人承諾之前隨時(shí)撤回,而且要約人關(guān)于不撤回要約之允諾,如無(wú)約因一般是無(wú)效的。使要約人信守允諾的常用辦法,是向他支付一筆有名無(wú)實(shí)金額(如一美元),作為取得因而被稱(chēng)作“選擇權(quán)”者之對(duì)價(jià)。即使沒(méi)有約因(對(duì)價(jià)),少數(shù)法院也主張:被要約人因相信允諾而蒙受損害時(shí),要約人不得出爾反爾,撤回其要約。但是最令人滿(mǎn)意的解決辦法,是通過(guò)立法(這是某些州的辦法)規(guī)定要約不問(wèn)有無(wú)約因只要具備簽了名的書(shū)面形式而且記明不得撤銷(xiāo)者,一律不得撤銷(xiāo)。由此可見(jiàn),發(fā)展的趨勢(shì)是彌補(bǔ)約因論的缺點(diǎn)而不是摒棄約因論。在美國(guó),契約也同制定法那樣,是以詳細(xì)和冗長(zhǎng)為其特征的。由律師擬定的契約往往由標(biāo)準(zhǔn)條款組成,這種條款或取自己歸檔的其

32、它契約,或來(lái)自書(shū)本,俗稱(chēng)為“做成紙型的”條款。即使沒(méi)有律師直接參與其事,當(dāng)事人也可以直接采用或參照吸收一種標(biāo)準(zhǔn)格式。這種格式早由律師擬定以供某企業(yè)或企業(yè)聯(lián)合會(huì)之用或公開(kāi)發(fā)售。美國(guó)企業(yè)特別重視細(xì)節(jié),這也許是有一些原因的。其中包括:常規(guī)性交易的標(biāo)準(zhǔn)化、特殊性交易之每一階段往往都有律師參與其事、傾向于使用在過(guò)去糾紛中經(jīng)過(guò)考驗(yàn)的語(yǔ)言以及希望能在所涉及的是不止一個(gè)州的法律時(shí)防止捉摸不定的一種愿望。所有這一切更使得以案例為中心的美國(guó)律師增強(qiáng)下列愿望:就過(guò)去業(yè)已發(fā)生或今后可以預(yù)見(jiàn)的爭(zhēng)端,在契約中作出明文規(guī)定。一個(gè)與此有聯(lián)系的現(xiàn)象時(shí)諸如發(fā)售的票子、租賃契約和零售契約之類(lèi)強(qiáng)加于談判力差的一方的標(biāo)準(zhǔn)式“單方面契約

33、(合同)”之廣泛使用。近些年來(lái),法院和立法機(jī)構(gòu)對(duì)在上述情況下契約自由竟會(huì)絲毫不受限制的后果越來(lái)越感到關(guān)切。過(guò)去一向?qū)ζ髨D犯罪、侵權(quán)或?yàn)槠渌黠@違反公共利益行為的協(xié)議拒不予以執(zhí)行的法院,現(xiàn)在已開(kāi)始以解釋契約的名義偏護(hù)處于劣勢(shì)的一方,并在趨于極端的案件中拒不承認(rèn)由一方當(dāng)事人單方面說(shuō)了算的條款有任何效力盡管協(xié)議內(nèi)容本身并無(wú)違法之可言。立法機(jī)關(guān)也頒布了規(guī)定諸如雇傭契約中最高工作時(shí)數(shù)和最低工資之類(lèi)的條件甚至規(guī)定了整個(gè)契約(如保險(xiǎn)單之類(lèi))并予行政機(jī)關(guān)以規(guī)定諸如運(yùn)輸業(yè)和電力業(yè)的價(jià)格和條件的權(quán)力。契約自由論雖已在許多領(lǐng)域遭受侵蝕,但仍不失其為原則而尚未成為例外。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 b

50、e 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 of their children. many people are not aware of this. but if your ten-year-old son carelessly knocks a baseball through a

51、 store window you are not legally responsible for the cost of replacing it?despite the owners angry protests.the situation changes, however, if a parent knows that his child has developed what lawyers call a vicious propensity to commit acts that injure other people or their property. if the neighbo

52、rhood bully has a habit of going around hitting smaller children and stoning dogs and cats, and if his parents know about his habitual bad behavior, the court might find that it was their duty to restrain and control him. if they allow him to continue in his destructive ways, they might be found lia

53、ble for damage he caused. in addition, some states have passed laws that do make the parents responsible for willful damage caused by their minor child.police officers, sheriffs and other peace officers acting in the course of their official duties are not liable in tort unless they use excessive force or exceed their authority in discharging their duties. the same general rule applies to many kinds of public officials working under actual or even implied orders from their superiors. you cant sue the over eager tax collector who charg