《A Brief Introduction To The Anglo-American Law of

Contract》

讲义

CHAPTER 1 INTRODUCTION TO ENGLISH AND AMERICAN

CONTRACT LAW

第一章导论

Many students wrongly imagine that the law of contract is difficult in that it will deal with complicated commercial situations. They also think of contracts as complicated written documents only entered into on rare occasions such as accepting the offer of a job, renting or buying a house, or engaging in a major business transaction.

In fact, most of us enter into contracts every day and the vast majority of them are less complicated. Buying a bus or train ticket, a cup of coffee or a book are all example of contracts and we hardly ever bother to record these affairs in writing, negotiate them in detail.

Although it is usually fairly easy to recognize a contract once formed, it is by no means such an easy task to describe in general terms what a contract is. It is usually, perhaps universally, said that a contract is a legally enforceable agreement and that it is formed by the process of “Offer and Acceptance.” It is also said that the agreement must be supported by “consideration” for it is the presence of consideration that makes the agreement enforceable.

The contract law course taught in this semester usually deal wi th the “general principles of contract”. We will not concern with those more advance fields such as contracts of employment, of the sale of goods between business and to consumers, of international sales, of the disposal or retention of intellectual property rights, of shipping, of insurance, and of construction deals. [Aims and Requirements]

This chapter introduces some basic theory in Common Law system on contract law. The section A begins our survey with the definition of contract, which introduces a number of themes including the basis of contract and the conditions for enforcement of promises. Section B presents an overview of some theoretical issues and provides some very basic information that often emerges in class only incidentally and may therefore be missed by some students. Section C concentrates on the development of Anglo-American contract law in the past century. It is useful for the student to understand new characteristics of modern contract law.

[Time Allocation] 4 hour

Please brief the case and provide me with a copy of your brief at the first class.

SECTION A．THE MEANING OF “CONTRACT” AND BASIS OF CONTRACT

第一节合同的定义和合同基础

I. Meaning Of Contract

Purpose and demand

In this certain part of the chapter we must cover the following purpose and demands: the students should master the definition of Contract. They will be familiar with the sources of contract law. The understanding of the differences between England and The USA is also very important.

Main content

I.The Meaning of “Contract”

A contract is a promise, or set of promise, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. (Restatement of the Law, Second, Contracts, Section1.)

A contract is defined as an exchange relationship created by oral or written agreement between two or more persons, containing at least one promise, and recognized in law as enforceable.

Briefly speaking, a “contract” is an agreement（a promise or a set of promise）that the law will enforce.

A contract is a legally binding agreement between two or more parties or a set of legal binding promises made by one party or more. (See G.C. Lindsay, Contract, (3 rd, 1992) at 6~7.)

Although this definition will not likely satisfy everyone, it does reflect the essential elements that everyone seems to accept:

II. So there are five essential elements in a contract:

1.An oral or written agreement

Probably, the most important attribute of contract is that is a voluntary, consensual relationship. A contract is created only because the parties, acting with free will and intent to be bound, reach agreement on the essential terms of their relationship. It is the element of agreement that distinguishes contractual obligation from many other kinds of legal duty, such as the obligation to compensate for negligent injury or to pay taxes that arise by operation of law from some act or event, without the need for assent.