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Written Report for Contract Law


Written Report for Contract Law Written Report 0

2010 级民商法硕士 Freeman

Question:what is your comprehension for fundamental policies and values of contract? P1-20 In terms of the policy and value of contract law,Brian A Blum has given us six reasons including freedom of contract, morality of keeping promise, accountability for conduct and reliance,social justice,protection of the underdog and fairness.

From my point of view ,the basic value of contract law is to protect the right of freedom of the civilians., which reflects the rule of autonomy in civil law and also reflects the right of freedom given by the constitution law.[1]

Firstly ,the goal of the principle of freedom of contract is to encourage transaction ,which is a basic measure for the development of the market-oriented economy . The more prosperous the contract relationship develops , the more energetic the market-oriented economy forms ,which depends on the sufficient freedom of contract between the contracting parties. Article 4 in China's contract law clearly states,all the social members have the right to make a contract ,which can not be interposed by any individual or unit.[2] This rule is also be settled out in the due process in the American constitution.

Furthermore ,the principle of freedom of contract not only points the way of making contracts ,but also includes the content of the contracts,for example, in an oral way or in a written way. In the performance of the contract ,we still can change or supplement the content of the contract ,and decide the way to bear the responsibility of the breach of a contract and the method to settle disputes.

However ,just as a famous motto says ,there is no absolute freedom ,only relative freedom in the world. The principle of freedom of contract can not exceed the prohibited provisions of the law. For example , The principle of freedom of contract cannot go against the principle of public order and social good morals , cannot be used with fraud and intimidation, especially be used to persecute the third person or the state of public interest with an illegal purpose. For the unequal contractual subjects,for instance ,between the labor and the company , or between the insurance consumer and the insurance company ,the right of freedom of making a contract for the weaker should be protected more . Only in this way can we pursue the justice .

In short ,The principle of freedom of contract must be limited by the social public interests and individual profits ,thus balancing the relationship between different contracting members.

Written Report Another 1

Question:what is the great significance of doctrine of precedent under common law ?P21-50 It has been said in Brian A Blum's book that doctrine of precedent means the previous precedent must be followed by the later case if the basic facts of later case are substantially similar to the precedent.[3]

From my point of view,the great significance of doctrine of precedent under common law can be illustrated as follow:

First of all ,doctrine of precedent under common law can protect the equal application between different cases and individiuals because legal justice order us that the same case should have the same court decision.

Secondly ,doctrine of precedent under common law can enhance the foreseeability of law . According to this rule of foreseeability of law,every person can foresee the legal effect of his own conduct,thus avoiding himself be drawn into legal action or sanction,which also reflects the legal transparency and fairness.

Moreover ,doctrine of precedent under common law can not only save the time of making legal decision for the judges ,but also limit the judge's right to make a decision.

In short, doctrine of precedent is the life and leading star for common law.

Written Report 2

Question:compare the judicial approaches between two legal systems in finding people’s legal intention.P51-56 In terms of the judicial approaches in finding people's legal intention , the common law and the civil law all follow the consistent principle between the subjective element and the objective element. However , the common law and the civil law have different ways and procedures to act.

For the common law , the external standard should be used at first to find out whether both parties did have made a contract. The external standard is used because an inquiry into what each party have in mind is neither efficient nor fair.[4] It will use too many time to understand a person's mind relied on his words or conducts.

However ,if any subjective evidence can be found that the contract is unfair, for example ,one party has been cheated ,forced or misunderstood,thus making an unfair contract,the legal intention to make a contract should not be established.

If the parties just have different understanding on the meanings of each other's words and conducts,their legal intention must be found by the factfinder. In other words, the subjective test is accord to a third party 's legal intention ,not the intention of the two parties who make the contract.

However,in civil law,three aspects should be taken into account when the judges want to find the legal intention ,that is the aim intention ,the effect intention and the act intention.

Written Report 3

Question:compare the rules of offer and acceptance under the two legal regime of contract law.P56-148 offer (1)the time when the offer comes into effect is different In common law ,the rule of post a letter has been used to decide the time when the offer comes into effect ,that is to say ,the offer will not come into effect until the offeree make a promise.

In civil law ,the rule of arrival has been used to decide the time when the offer comes into effect ,that is to say ,the offer will come into effect when the offer reach the place where the offeree can get it.

(2).the withdraw and revocation of offer is different The theory that offer can be withdrawn has been agreed by both legal system scholars and judges ,however ,whether the offer can be revoked has not reached an agreement.

In common law, the offer can be revoked before the offeree has made a promise even if the offer has reached the offeree because the common law judges argue that it

is beneficial for both parties to change their ideas according to different market environment ,thus avoiding disadvantages to offerer .

In civil law ,the civil law judges argue that when the offer reachs the offeree ,the offerer'right should be limited by the offer.[5]if a promise time has been given for the offeree ,the offer should not be revoked before the promise time due.

Acceptance (1)the time when the acceptance comes into effect is different In common law , the rule of sending out (in Amercia ,it is also called mailbox rule) has been used to decide the time when the acceptance comes into effect. Therefore ,when the offeree put his acceptance into the mailbox ,the contract has been made.

In civil law , the rule of arrival has been used to decide the time when the acceptance comes into effect.,that is to say ,when the offeree's acceptance gets to the place where the offer can control ,the contract has made.

(2)the withdraw and revocation of acceptance is different In common law , the acceptance cannot be withdrawn if the offeree has put his acceptance into the mailbox whether the acceptance has been reached to the offerer or not .

In civil law ,the acceptance cannot be withdrawn only if the withdraw notice reach the offerer not later than the acceptance reach the offerer.

Written Report 4 Question :why are the rules of offer and acceptance different between the two legal systems ?P56-148 The reason why the rules of offer and acceptance is different between the two legal systems can be summarized into one phrase: different bussiness purpose.

Just as we can see from the contract law book written by Brian A Blum, the bussinessmen under the common law system take more attention into the swift deal agreement,therefore ,the rules to decide whether a contract has made will be apt to be advantageous for the offerer. In civil law ,the judges take more attention to the safety for the deal agreement.

For example , just as the rules when the acceptance and offer come into effect. when the acceptance has been put into the mailbox . The common law judges will decide the acceptance has come into effect ,thus the contract has been made,therefore the acceptance cannot been withdrawn. [6]That is to say ,even the withdrawn notice reach the offerer not later than the acceptance notice ,the acceptance cannot be void.

From my point of view , the rules when the acceptance and offer come into effect in common law system maybe more helpful for the offerer and offeree to make a contract swiftly,but not good to the safety of a deal .

For instance ,under the rule of mailbox , if the acceptance is delayed or lost , the offerer'right should be limited until the acceptance reach him, it is too rigorous to the offerer.

Written Report 5

Question :why is it where there is no rule of consideration under Chinese contract law ?149-188

Just as Brian A Blum said in his book , consideration is the basis of contract obligation in Anglo-Amercian law ,and according to the Black Dictionary , consideration is something of value such as an act ,a forbearance or a return promise received by the promiseor from a promisee ,in other words ,which means the interests one party will get because of his performance of obligation or the losses a party will suffer because of his acceptance of the obligation.[7]

It is no wonder that there is no formal rule of consideration in Chinese contract law bacause the legal sources of Chinese contract law is from the civil law and there is no formal rule of consideration in civil law .

However ,from my point of view ,although there is no formal rule of consideration in Chinese contract law , the concept and spirit of consideration has been transplanted into Chinese contract law potentially .

In Chinese contract law ,the judges will adjust the consideration relationship from the aspects of the equality of legal status and the reciprocity between obligations and rights among the parties who make the contracts.

For example , the validity of a Chinese contract can be decided by the reason whether the party who makes the contract is durssed or deceived at that time . Even if there is no circumstance of duress or deceive , obvious unjust can also be the reason to make the contract void or voidable.

In short ,the basic essence and spirit of consideration is to pursue the equivalence treatment among the contractual parties which is also the Chinese contract law pursues.

Written Report 6

Question:what is the role of estoppel compared with consideration ? 189-213

According to what Brian A Blum has said in his book,the promissory estoppel could help allow the promise to be enforced even though the promisee has not provided consideration for that promise.[8]

In other words ,the role of estoppel is to guarantee a contract valid and take into effect even if there is no relative consideration. From my point of view , the rule of promissory estoppel is a contradiction with the rule of consideration in some aspects and times.

For example , A said to B "if you destroy your coffee cup, I will give you $10. " ,however ,when B destroyed his coffee cup , A refused to give B $10. According to the rule of consideration ,the loss of B cannot be relieved bacause there is no consideration between their contract,but according to the the rule of promissory estoppel, A should give B $10 since A cannot break his promise as a normal person .

Furthermore , the role of the doctrine of consideration is to keep contract correlation ,while the role of doctrine of promissory estoppel is to keep privatautonomie. And the doctrine of promissory estoppel is a supplementary to the doctrine of consideration in order to keep legal fair and just.

For instance, in Chinese Insurance contract law, the insurer cannot break his promise after the insurance contract has been taken into effect for more than two years even if the insurer has know the true fact ago . The incontestable clause in the insurance contract law is a specific use of the doctrine of promissory estoppel to guarantee the interests of the insuree.

Written Report 7

Question: compare the differences and similarities between common law and Chinese law in this aspect.

In terms of the consent between the offerer and offoree when they make a contract, there are various kinds of statements. If the statements of a contract cannot stand for the genuine consent of the offeror or the offeree, the contract maybe void or avoidable.

In Common law, there are at least five kinds of statements such as mistake, duress, undue influence, unconscionability and misrepresentation can give rise to the void or avoidable contract

The meaning of mistake, unconscionability and duress in statements has the same legal result in both the Chinese contract law and the common law. However, the scope of misrepresentation in common law is larger than that in Chinese contract law because the scope of misrepresentation in Chinese contract law only means fraudulent misrepresentation, but in common law, the scope of misrepresentation can be divided into three parts such as fraudulent misrepresentation, negligent misrepresentation and innocent misrepresentation.

What catches my eyes mostly is the undue influence which is not included in Chinese contract law as a reason to make a contract void or violable. Undue influence means one party uses superior position of influence to persuade the other party to make a contract which provides the superior party with a direct or indirect benefit. This special relationship usually takes place between the doctor and the patient, the employer and the employee, the lawyer and the client etc.

From my point of view, the reason why the Chinese contract law does not include undue influence as a reason to make a contract void is that the Chinese judges can use others laws to adjust this special relationship such as using the tort law to adjust the dispute between the doctor and the patient, using the Chinese labor law to adjust the conflicts between the employer and the employee and using the Chinese lawyer Law to adjust the relationship between the lawyer and the client

Written Report 8

Question : to what extent do legality and form of contract influence the validity of contract respectively ?

From my point of view, the legality of making a contract is a subjective requirement for a contract to take into effect, while the form of making a contract is an objective requirement for a contract to take into effect. The reasons why the form and legality is so important for a contract being taking into effect can be illustrated as follows:

Firstly , the requirement of legality is to decide whether the parties who want to establish a contract have a lawful purpose when they make the contract. If the purpose of making a contract is illegal , the established contract can not be taken into effect even if the parties have genuine consent and have reached an agreement.

For example, A want to make an agreement to guarantee the repayment of a loan misused by his son in exchange for that the creditor would not report his son to the police. In this case ,even if the creditor agree the contract ,this contract cannot be taken into effect because the purpose of making this contract is illegal.

Secondly , the requirement of form is to decide whether the contract can be expressed in a special way such as in a oral way ,in a written way. If the parties who want to make a contract has a promise that all the contracts they made should in a written way ,thus the contract made in an oral way cannot be taken into effect.

In short , the seven steps for the validity of a contract cannot be omitted and each step is very crucial for an effective contract.

[1] Hu Kangsheng.Explanation for Chinese Contract Law.Beijing Law Press .1999:7. [2] Liang Huixing.Legal Research of Civil Law.National Administrative School Press.1999:134. [3] Brian A Blum.Amercian Contract Law(second edition):37. [4] Brian A Blum.Amercian Contract Law(second edition):55. [5] Evan Mckendrick:Contract Law.Law Press China.2003:432. [6] Ray August.INternational Bussiness Law.Prentice Hall New Jersey.1997:45. [7] Brian A Blum.Amercian Contract Law(second edition):149. [8] Brian A Blum.Amercian Contract Law(second edition):189.


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