耶鲁大学-美国合同法笔记-第1周

Welcome to Contracts. In these two courses, Contracts one and Contracts two, you will learn the basics of US Contract Law. You don't need to be a lawyer to write contracts. So, these courses will be a value not just to law students, but to business people in and outside the United States, that have to deal with contracts governed by US law. Contracts one, will focus on the prerequisites先决条件 for contracting. You'll learn about offer and acceptance, how contracts manifest mutual assent. We'll be talking a lot about consideration and when it is required. Contracts two, will then turn to formation defenses and questions of contract performance. You will learn about contract interpretation, and the dividing line between breach and non-breach. In contracts two, we'll also be learning about how contract law attempts to remedy breach by awarding various types of damages. The law of contracts is both judge made and legislature made, all 50 states have enacted major parts of the Uniform Commercial Code or UCC. The UCC is divided into separate articles. Article one includes general provisions. We'll be focused on Article two, which governs the sale of goods, physical objects. Other UCC articles relate to different kinds of transactions. Article nine covers secured transactions, where a borrower gives a lender a security interest in some borrower asset in order to secure the loan. Article-IIA covers leases. If you have a contract dispute with your barber, is the contract governed by the UCC's Article II? No. The UCC governs the sale of goods. The contract to pay money for a haircut is a service, and is likely to be governed by common law, meaning law created over time by judges. However, even with regard to services, many jurisdictions have health and safety regulations as well as consumer protection statutes that may regulate the transaction. The common law is judge made law handed down in decisions that have precedential authority with regard to similar disputes. The common law of contract not withstanding the UCC still has a big role to play in knowing contract law. Common law governs not only service contracts, but it supplements the UCCs coverage of sale of good contracts. UCC Section 1-1O3B, tells us. \by particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions\In essence, this section says, that unless displaced by particular provisions of the UCC, the common-law lives the principles of law and equity that supplement its provisions are the principles developed by common law judges. The best way to learn the common law is to read

cases, the opinions of judges resolving particular disputes, we'll be doing a lot of that in this course. But the American Law Institute has helpfully created restatement of different areas of law, that tried to summarize different areas of judge made law. The Restatement重述 Second of contracts is the current version which was finalized in 1991. The first was approved in 1932. This restatement second has been enormously influential. It is not law in the sense that judges are not bound to follow it, but many supreme courts have found particular provisions persuasive and have expressly relied upon certain provisions, thus indirectly making these provisions binding in these states. So, to learn both statutory and common law of contracts, this course will be introducing you to many provisions in the UCC and the restatement second of contracts. Like generations of contracts students before you, you'll be reading and picking apart dozens of actual judicial opinions. We begin with six cases to give you a taste of all of contract law. Two cases, Hamer and Rickets, concern legal prerequisites for creating enforceable promises. Two other cases Bolin Farms and Walker-Thomas Furniture, concern contractual defenses. Finally, two cases Jacob and Youngs and Sullivan, concern remedies for breach of contract. This introductory section also introduces you to three overarching concepts; default违约 versus mandatory rules强制规则, property财产 versus liability rules责任规则, and the Coase theorem. So, without more do, let's dig in.

Uniform Commercial Code 统一商法典

统一商法典（英语：Uniform Commercial Code, UCC, the Code）是美国制定的一部商法典，在1952年正式公布，现为美国50个州所采纳。

The Uniform Commercial Code (UCC), first published in 1952, is one of a number of uniform acts that have been promulgated with the goal of harmonizing the law of sales and other commercial transactions across the United States of America (U.S.) through UCC adoption by all 50 states, the District of Columbia, and the U.S. territories.

编数 标题 1 2 3 4 5

总则 买卖

内容

2A 租赁契约

流通票据

银行存款与收款 信用证

4A

6 7 8 9

大宗买卖 权利凭证 投资证券

动产提保交易

A Brief Overview of Contract Law

Contracts are created in order to legally bind parties into a promise, but because of differing interpretations of legal language, can be tricky to litigate. Contract law is a complex puzzle, one that requires a deep understanding of what exactly contracts are and what following through with one entails.

There are a few requirements to make a contract enforceable as well as limitations on what one can be contractually obligated to do. In this article, we’ll define the terms, discuss the basics of contract law, the requirements for an enforceable contract强制执行的合同, and give an overview what breach of contract entails, as well as possible remedies that may come out of litigation due to fraud or other contractual errors. If you’re looking for a lawyer who specializes in contract litigation, look no further than our ttorneys who specialize in this complex legal knot法律纠纷.

Definition of Terms

A contract is defined by the Legal Information Institute as, “an agreement between private parties creating mutual obligations enforceable by law”. More broadly, this includes any promise（允诺）promise

n. & v.允诺；保证；许诺 以特定方式向他人表明自己将要为或不为某事的打算，且该表达的方式使对方可合理地理解为其作出了许诺：保证将为或不为某事。允诺可以书面或口头的方式为之，作出允诺的人是允诺人〔promisor〕，其相对方是受允诺人〔promisee〕。合同实质上即为有约束力的允诺；允诺付款，指本票〔promissory note〕上表明出票人打算偿还

某一债务的字句。如果仅书面承认债务到期，并不足以构成允诺付款the breach of which will result in legal remedies.

A promise is defined as a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.

要约人，受要约人

A promiser is defined as the person manifesting the aforementioned intention, while the promisee is the person to whom this manifestation is addressed. A beneficiary may

also arise depending upon the type of contract, and a beneficiary is anyone who is benefited by the performance of the promiser on behalf of the promisee.

Requirements for An Enforceable Contract有效合同的构成要件

In order for a contract to be enforceable and legally-binding, there are a few different elements of requirement that must be met.

The first of these is mutual assent（合意，即意思表示一致）, which simply means that both parties agree to the terms of the contract. Both parties must also express a valid offer and acceptance, whether in a formal manner or just by agreement to the offer as presented. Even if the moment of agreement cannot be pinpointed准确表述, the assertion of an agreement made will suffice满足.

Another element of a legally-enforceable contract is that both parties must be reasonably certain that the agreement can be honored in a legal manner（内容合法）--so if the contract describes illegal behavior, it obviously cannot be enforced.

Adequate consideration（合理对价） , or “the value that convinces the parties to engage in a contract” in the first place, is also another crucial element.

One of the biggest reasons that contract disputes enter litigation is due to misrepresentations, mistakes, or either party of the contract being under undue duress, or pressure, to complete the terms. 欺诈、胁迫、趁人之危、重大误解、显失公平Many times litigation will find a contract void or unenforceable合同无效或不可强制执行, which dissolves the terms of the contract to both parties.

If a contract is breached, then litigation may find the promisee is entitled to damages as a remedy to contract breach. Depending upon the type of contract breach, a judge can award expectation damages期望损害赔偿, reliance damages信赖损害, and unjust enrichment不当得利 to an injured party.

Finding an Attorney Who Specializes in Contract

Litigation Contract law may be a complex puzzle--but that’s why you need an attorney that can untangle it for you. You need a litigation attorney with your best

interests in mind who will offer you expert advice, especially those with the experience to achieve the best possible results for their clients, often avoiding ever going to trial due to mutual agreements. 特别是那些有经验的诉讼律师，为他们的客户取得最好的结果，往往是通过达成协议而避免诉讼。

Default Rules, Altering Rules and Mandatory Rules 失责处理规则，变更规则和强制性规则

The effect of many of the rules that you will learn in law school can be altered by agreement of the parties. Rules that the parties can contract around are often called default or gap filling rules默认或空白填充规则. Just as word processing software stablishes default margins that a user can alter by changing the settings, any rules are merely legal presumptions法律推定 that only govern when he parties have remained silent, in the absence of agreements to the contrary. Default rules can be established by common law courts or by legislatures. When a court decision says, s Judge Cardoza wrote in Jacob and Young versus Kent, that future parties are, quote, free by apt and certain words, unquote, to contract for an alternative result, the decision is announcing a default rule. When a statute prescribes a rule that will apply, quote, unless otherwise indicated, unquote, in a private contract, it is announcing a default rule. But many times, statutes and decisions will not expressly address whether a particular rule can be altered by private agreement, or what words would be sufficient to accomplish such altering. When a rule is merely a default, it's important to understand the necessary and sufficient requirements for opting out of it, or what are known as altering rules. The UCC, the Uniform Commercial Code, section 22061a, for example, establishes the default that an offer invites acceptance, quote, in any manner and by any medium reasonable in the circumstances, unquote. The same section provides that the default will obtain, quote, unless otherwise unambiguously indicated, unquote, by the offer or. The reasonable medium rule is the default, and the unambiguously indicated requirement provides the altering rule. Not every contract rule can be contracted around. Those that can not be changed are termed mandatory or immutable rules. Mandatory rules are established by both courts and legislators. The common law has also established immutable limits, for example, on the maximum amount of damages that parties can contract for最大损害赔偿数额可以约定. These are restrictions on so-called liquidated damages约定违约金，当事人双方在订立合同时，