unit 15 the contract and property text i the contract -to learn the definition, types and basic...

Unit 15 The Contract and Unit 15 The Contract and PropertyProperty

Text I The ContractText I The Contract

-To learn the definition, types and -To learn the definition, types and basic elements of contractsbasic elements of contracts

Text II PropertyText II Property

-To learn about the distinction -To learn about the distinction between real property and personal between real property and personal propertyproperty

Text III Case ReadingText III Case Reading

-To read a case related to property -To read a case related to property lawlaw

Text I The ContractText I The ContractTerms: the nonbreaching / innocent / injured / wronTerms: the nonbreaching / innocent / injured / wron

ged / aggrieved party, the breaching / guilty / non-ged / aggrieved party, the breaching / guilty / non-performing party, the party in breach, compensatoperforming party, the party in breach, compensatory / general damages, specific performance, party ry / general damages, specific performance, party autonomy, counter-offer, mirror-image rule, bilateautonomy, counter-offer, mirror-image rule, bilateral contract cf. unilateral contract, express contracral contract cf. unilateral contract, express contract cf. implied-in-fact contract (implied contract) cf. it cf. implied-in-fact contract (implied contract) cf. implied-in-law contract (quasi-contract), valid contmplied-in-law contract (quasi-contract), valid contract cf. void contract cf. voidable contract, enforceract cf. void contract cf. voidable contract, enforceable contract cf. unenforceable contract, formal cable contract cf. unenforceable contract, formal contract cf. informal / simple contract, written contontract cf. informal / simple contract, written contract cf. oral contract, executed contract cf. executract cf. oral contract, executed contract cf. executory contract ory contract

Outline of Text IOutline of Text IⅠ Ⅰ (para. 1-4) What is a contract: definition, core of most co(para. 1-4) What is a contract: definition, core of most co

ntracts (consideration) and other general aspects of contracts (consideration) and other general aspects of contractsntracts

Ⅱ Ⅱ Written contractsWritten contracts• A. (para. 5) DefinitionA. (para. 5) Definition• B. (para. 6-10) The advantages of written contracts oveB. (para. 6-10) The advantages of written contracts ove

r oral contractsr oral contractsⅢ Ⅲ Who can enter into contractsWho can enter into contracts• A. (para. 11) Legal capacity of natural persons to enter iA. (para. 11) Legal capacity of natural persons to enter i

nto contracts: minor and the mentally incompetentnto contracts: minor and the mentally incompetent• B. (para. 12-13B. (para. 12-13 ）） Legal capacity of juristic / artificial peLegal capacity of juristic / artificial pe

rsons / body corporate to enter into contractsrsons / body corporate to enter into contracts• C. (para. 14-21) Formation of contract: offer, acceptancC. (para. 14-21) Formation of contract: offer, acceptanc

e and counter-offere and counter-offerⅣ Ⅳ (para. 22-25) Consideration: not required in all contracts (para. 22-25) Consideration: not required in all contracts

in present contract lawin present contract lawⅤ Ⅴ (para. 26-32) Typical contract provisions: 5 common ter(para. 26-32) Typical contract provisions: 5 common ter

msms

Terms Terms

the nonbreaching / innocent / injured / wronthe nonbreaching / innocent / injured / wronged / aggrieved party ged / aggrieved party

the breaching / guilty / non-performing party,the breaching / guilty / non-performing party, the party in breach the party in breach

compensatory / general damages compensatory / general damages (( 补偿性补偿性 // 一般赔偿金一般赔偿金 common law remedycommon law remedy ））specific performance specific performance (( 依约依约 // 实际实际 // 特定特定 // 强制履行强制履行 equitable remeequitable reme

dy)dy)party autonomy party autonomy 当事人意思自治当事人意思自治

Terms Terms

counter-offer counter-offer 反要约反要约mirror-image rule mirror-image rule 镜像规则镜像规则

4 requirements of an enforceable 4 requirements of an enforceable contractcontract

1.1. There must be an agreement between the partiThere must be an agreement between the parties: both parties come to a “meeting of mindes: both parties come to a “meeting of minds” (s” ( 合意合意 ) i.e. mutual consent, no fraud or dure) i.e. mutual consent, no fraud or duressss

2.2. There must be consideration to support a contrThere must be consideration to support a contractual claim (for most contracts, there needs to actual claim (for most contracts, there needs to be a consideration: consideration defined as a bbe a consideration: consideration defined as a bargained-for exchange, understood in a formula argained-for exchange, understood in a formula “benefit-detriment”)“benefit-detriment”)

3.3. There must be two or more parties who have thThere must be two or more parties who have the legal capacity to contract: minor and the insae legal capacity to contract: minor and the insane are presumed to lack the requisite capacity tne are presumed to lack the requisite capacity to contracto contract

4.4. The legal purpose for concluding a contract muThe legal purpose for concluding a contract must be consistent with law and sound public policst be consistent with law and sound public policy (y ( 公共政策、公序良俗公共政策、公序良俗 ))

When does an acceptance (in When does an acceptance (in writing) enter into force?writing) enter into force?

-civil law: when the letter of acceptance g-civil law: when the letter of acceptance gets to the offeror ets to the offeror 到达主义到达主义

-common law: when the letter of acceptan-common law: when the letter of acceptance destined for the offeror is put in the mce destined for the offeror is put in the mailbox ailbox 投邮主义、邮箱规则投邮主义、邮箱规则

Classification of contractsClassification of contracts

1. *bilateral contract: an exchange of 1. *bilateral contract: an exchange of promisespromises

*unilateral contract: a promise *unilateral contract: a promise exchanged for an act of performanceexchanged for an act of performance


2. * express contract: the parties state their 2. * express contract: the parties state their agreement orally or in writing (words)agreement orally or in writing (words)

*implied-in-fact contract (implied contract): *implied-in-fact contract (implied contract): the parties manifest their agreement by the parties manifest their agreement by conduct rather than by wordsconduct rather than by words

*implied-in-law contract (quasi-contract): *implied-in-law contract (quasi-contract): not based on agreement and therefore not not based on agreement and therefore not true contract; legal fictions that court use to true contract; legal fictions that court use to prevent wrongdoing and the unjust prevent wrongdoing and the unjust enrichment of one person at the expense of enrichment of one person at the expense of another; it is merely an obligation imposed another; it is merely an obligation imposed by law in order to do justiceby law in order to do justice


3. *valid contract: all respects in accordanc3. *valid contract: all respects in accordance with the legal requirements for a contrae with the legal requirements for a contractct

*void contract: not a contract, fail to satisf*void contract: not a contract, fail to satisfy any of the requirements for an enforceay any of the requirements for an enforceable contractble contract

*voidable contract: in which one or more *voidable contract: in which one or more parties have the power to end the contraparties have the power to end the contract ct


4. *enforceable contract: one party is 4. *enforceable contract: one party is entitled to relief because of breachentitled to relief because of breach

*unenforceable contract: there is a *unenforceable contract: there is a defense to a contract claim that denies defense to a contract claim that denies a party any remedy, such defenses a party any remedy, such defenses being form (oral or written), mistake, being form (oral or written), mistake, fraud, misrepresentation, duressfraud, misrepresentation, duress


5. *formal contract: contract under seal, cont5. *formal contract: contract under seal, contract of record, negotiable instrumentract of record, negotiable instrument

*informal contract: simple contract*informal contract: simple contract6. *written contract6. *written contract *oral contract*oral contract7. *executed contract: one that has been com7. *executed contract: one that has been com

pletely performed, under which nothing rpletely performed, under which nothing remains to be done by either partyemains to be done by either party

*executory contract: something remains to *executory contract: something remains to be done by one or both parties be done by one or both parties

B.B. Partial translationPartial translation

• 1. Our quotation is subject to a 10% discount o1. Our quotation is subject to a 10% discount or a discount of 10%r a discount of 10%

• 2. (has) entered into a cooperation agreement 2. (has) entered into a cooperation agreement with a multinational corporationwith a multinational corporation

• 3. is entitled to these privileges3. is entitled to these privileges• 4. imposed pressure on the hijackers4. imposed pressure on the hijackers• 5. in exchange for temporary economic develo5. in exchange for temporary economic develo

pmentpment• 6. breaches the contract, perform/fulfill its con6. breaches the contract, perform/fulfill its con

tractual obligationstractual obligations

TranslationTranslation1.1. 所有合同义务最终会履行。在特殊情况下履行的所有合同义务最终会履行。在特殊情况下履行的

义务，称为解除合同，其意思是合同各方的义务义务，称为解除合同，其意思是合同各方的义务被解除。被解除。

2.2. 合同要求有各方签署的协议。但并不是所有的协合同要求有各方签署的协议。但并不是所有的协议都是合同。非商业性、宗教或慈善方面的协议议都是合同。非商业性、宗教或慈善方面的协议就不是合同，家庭成员之间的协议也是如此。就不是合同，家庭成员之间的协议也是如此。

3.3. All contracts should take the form of a writteAll contracts should take the form of a written document signed by both parties. You do nn document signed by both parties. You do not have to hire an attorney to create a written ot have to hire an attorney to create a written contract. If you reach an agreement over the contract. If you reach an agreement over the phone or in a meeting, write the agreement aphone or in a meeting, write the agreement as soon as possible and have the other party sis soon as possible and have the other party sign the written memorandum.gn the written memorandum.

TranslationTranslation• 4.4. Before you sign a contract, consider what coBefore you sign a contract, consider what co

uld go wrong or what could make performance of yuld go wrong or what could make performance of your obligations difficult or expensive. If the actual our obligations difficult or expensive. If the actual performance is more difficult or expensive than yoperformance is more difficult or expensive than you anticipated, that is not a valid excuse for not perfu anticipated, that is not a valid excuse for not performing. Enter into a contract only if you believe thaorming. Enter into a contract only if you believe that you can meet your obligations.t you can meet your obligations.

• 5.5. If you don’t understand exactly what the otIf you don’t understand exactly what the other party is expecting you to do, don't try to camouher party is expecting you to do, don't try to camouflage the lack of understanding by using vague langflage the lack of understanding by using vague language. Vague language leads to misunderstandings, uage. Vague language leads to misunderstandings, disputes, and lawsuits. Use simple language that adisputes, and lawsuits. Use simple language that accurately expresses your agreement with the other ccurately expresses your agreement with the other party.party.

Text II PropertyText II Property

• words: acquisition (v. acquire), comprise, enjoywords: acquisition (v. acquire), comprise, enjoyment, vegetation, fixture, estate, freehold, acknment, vegetation, fixture, estate, freehold, acknowledge, covenant, zoning, habitability, all-or-nowledge, covenant, zoning, habitability, all-or-nothing, recipientothing, recipient

• phrases: material cf. spiritual wealth, arise out phrases: material cf. spiritual wealth, arise out of, in terms of, title of, in terms of, title toto sth., sth., goodgood title, bear simil title, bear similarities arities toto, liability , liability forfor

• terms: real property / realty, personal property, terms: real property / realty, personal property, fee simple, warranty deed, adverse possession, fee simple, warranty deed, adverse possession, bailee cf. bailor / er, bailment contract, presumbailee cf. bailor / er, bailment contract, presumption of negligence, strict liability, common carption of negligence, strict liability, common carrier, absolute liabilityrier, absolute liability

Outline of Text IIOutline of Text II

Part I IntroductionPart I Introduction

• Para. 1Para. 1 Why the rules of law governing Why the rules of law governing the ownership of property are the ownership of property are important?important?

• Para. 2 Para. 2 The constitution of The constitution of “ownership” of property both in a “ownership” of property both in a society without a system of laws and in society without a system of laws and in an organized societyan organized society

• Para. 3 Para. 3 A distinction between real A distinction between real property and personal propertyproperty and personal property

Outline of Text IIOutline of Text IIPart II Real PropertyPart II Real Property• Para. 4 Para. 4 The constitution of real The constitution of real

property: (1) & (2)property: (1) & (2)• Para. 5 Para. 5 The four types of interests The four types of interests

related to an estaterelated to an estate• Para. 6 Para. 6 How to conduct a sale of real How to conduct a sale of real

property generally? (broker, buyer, property generally? (broker, buyer, seller; warranty deed)seller; warranty deed)

• Para. 7 Para. 7 Acquisition of title to real Acquisition of title to real property by adverse possession & property by adverse possession & regulations governing the ownership, regulations governing the ownership, use and sale of real propertyuse and sale of real property

Outline of Text IIOutline of Text IIPart III Personal PropertyPart III Personal Property• Para. 8 Para. 8 Differences between real property owneDifferences between real property owne

rship and personal property ownership & the wayrship and personal property ownership & the ways to acquire personal property: a sale transaction, s to acquire personal property: a sale transaction, will, gift, occupation, finding, accession and confwill, gift, occupation, finding, accession and confusionusion

• Para. 9-11 Para. 9-11 Bailment contractBailment contract (1) What is the essential difference between a s(1) What is the essential difference between a s

ale of personal property and a bailment of personale of personal property and a bailment of personal property? (bailment: transfer of temporary posal property? (bailment: transfer of temporary possession, but not title to the bailee)session, but not title to the bailee)

(2) What are the two types of bailment acco(2) What are the two types of bailment according to the text?rding to the text?

Terms Terms

real property / realty real property / realty 不动产、房地产不动产、房地产personal property personal property 动产动产fee simple fee simple 自由保有动产自由保有动产warranty deed warranty deed 担保契据担保契据adverse possession adverse possession 相反占有相反占有bailee cf. bailor/er (bailee cf. bailor/er ( 保管保管 )) 受托者受托者 // 寄托人寄托人bailment contract bailment contract 寄托合同寄托合同

Terms Terms

presumption of negligence presumption of negligence 过失推定过失推定strict liability strict liability 严格责任严格责任common carrier common carrier 公共承运人公共承运人absolute liability absolute liability 绝对责任绝对责任

Text III Case ReadingText III Case Readingcase Acase A• words: lot (n.), list (v.), commission, words: lot (n.), list (v.), commission,

prospective, recur, rendition, contemplateprospective, recur, rendition, contemplate• phrases: within the meaning of, enter phrases: within the meaning of, enter

judgment for / againstjudgment for / against• terms: listing contract, brokerage contract, terms: listing contract, brokerage contract,

unilateral cf. bilateral contractunilateral cf. bilateral contractcase Bcase B• words: reinstate, words: reinstate, ininapplicableapplicable• phrases: go one’s separate ways, parcel of phrases: go one’s separate ways, parcel of

land, living expenses, split up, petition land, living expenses, split up, petition (the court) for review(the court) for review

• terms: joint tenant, partition action, terms: joint tenant, partition action, implied cf. express contractimplied cf. express contract

Case A: termsCase A: terms

listing contract listing contract 出售土地合同（不动产代理出售土地合同（不动产代理人和所有权人间的协议）人和所有权人间的协议）

brokerage contract brokerage contract 经纪合同、代理合同经纪合同、代理合同unilateral cf. bilateral contract unilateral cf. bilateral contract 单边单边 // 双边双边

合同合同

Case B: termsCase B: terms

joint tenant joint tenant 共同合有者共同合有者 , , 联合所有者联合所有者partition action partition action 分割诉讼分割诉讼implied cf. express contract implied cf. express contract 默示默示 // 明示合明示合

同同

unit 15 the contract and property text i the contract -to learn the definition, types and basic...

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