Unit 3: Contract Law 单元3：合同法

An offerAn offer is a clear, unequivocal statement of the terms on which the offeror is prepared to be bound. It must be communicated to the offeree and can be accepted to form a contract.要约是要约人准备受其约束的条款的清晰、明确的声明。它必须传达给受要约人，并且可以通过接受来形成合同。 is a definite promise to be bound, provided that certain specified terms are accepted. It must be distinguished from an invitation to treatAn invitation to treat is an indication that a person is prepared to negotiate but is not yet willing to make a binding offer. Examples include advertisements, display of goods, and price lists.要约邀请是一方准备谈判的表示，但尚不愿意发出有约束力的要约。例如广告、商品陈列和价目表。, which is merely an invitation for others to make offers.

Key rules for an offer:

• Must be clear and certain in its terms.
• Must be communicated to the offeree.
• Can be made to an individual, a group, or the world at large (e.g., unilateral contracts like in *Carlill v Carbolic Smoke Ball Co.*).
• An offer can be terminated by revocationRevocation of an offer is the withdrawal of the offer by the offeror before it has been accepted. The revocation must be communicated to the offeree to be effective.撤销要约是要约人在要约被接受前撤回要约。撤销必须传达给受要约人才能生效。 by the offeror before acceptance, rejectionRejection of an offer occurs when the offeree declines the terms proposed by the offeror. Once an offer is rejected, it cannot be later accepted unless it is renewed by the offeror.拒绝要约是指受要约人拒绝要约人提出的条款。要约一旦被拒绝，除非要约人重新提出，否则以后不能再接受。 by the offeree, lapse of time, or failure of a condition.

AcceptanceAcceptance is an unqualified agreement to the terms of an offer. It must be communicated to the offeror and must mirror the terms of the offer without modification.承诺是对要约条款的无条件同意。它必须传达给要约人，并且必须不加修改地反映要约的条款。 is a final and unqualified assent to the terms of the offer.

Key rules for acceptance:

• Must be in response to the offer (offeree must be aware of the offer, *R v Clarke*).
• Must be unqualified (mirror image rule); any variation constitutes a counter-offerA counter-offer is a response to an offer in which the terms of the original offer are changed. This constitutes a rejection of the original offer and puts forward new terms for agreement.反要约是对要约的回应，其中原要约的条款被更改。这构成对原要约的拒绝，并提出新的协议条款。, destroying the original offer (*Hyde v Wrench*).
• Must generally be communicated to the offeror (exceptions: postal rule, unilateral contracts where performance is acceptance).

The way an offer is accepted often determines the type of contract:

• Bilateral ContractA bilateral contract is an agreement where both parties exchange mutual promises. Each party is both a promisor and a promisee. Most business contracts are bilateral.双边合同是双方交换相互承诺的协议。每一方既是许诺人也是受诺人。大多数商业合同都是双边的。: Arises from an exchange of promises. Both parties have outstanding obligations at the time of formation (e.g., a contract to buy a car, where one promises to pay and the other to deliver the car).
• Unilateral ContractA unilateral contract is a promise in exchange for a specific act. The offeror promises to pay after the occurrence of a specific act by the offeree. An example is a reward contract.单边合同是以一个特定行为交换一个承诺。要约人在受要约人完成特定行为后承诺付款。一个例子是悬赏合同。: Arises when an offer is accepted by performing an act. Only one party is under an obligation at the time of formation (e.g., offering a reward for finding a lost dog; the contract is formed when the dog is found and returned). *Carlill v Carbolic Smoke Ball Co.* is a classic example.

ConsiderationConsideration is the price paid for a promise. It is what each contracting party bargains with and gives in exchange for the return promise or performance of the other party.对价是为承诺支付的代价。它是每一缔约方为换取另一方的对待承诺或对待履行而进行磋商并付出的东西。 is essentially the 'price' paid for a promise in a contract. It must be something of legal value.

Types and Rules of Consideration:

• Executed ConsiderationAn act for a promise. One person does something NOW, the other person promises to do something LATER.行为换取承诺。一方现在做某事，另一方承诺以后做某事。: An act for a promise (an act already performed in return for a promise).
• Executory ConsiderationA promise for a promise. Both people make promises to do something in the future.承诺换取承诺。双方都承诺在未来做某事。: A promise for a promise (promises are exchanged for future performance).
• Past ConsiderationA promise for an act that has been done. Generally, past consideration is not valid consideration (*Roscorla v Thomas*).为已经完成的行为作出的承诺。通常，过去的对价不是有效的对价 (*Roscorla v Thomas* 案)。: An act done before a promise is given is generally not good consideration (e.g., *Roscorla v Thomas*).
• Consideration must be SufficientConsideration of some legal value. Courts don't require consideration to be of equal value, just that it has some legal worth.具有某种法律价值的对价。法院不要求对价具有同等价值，只要具有一些法律价值即可。 but need not be AdequateConsideration of equal value. Courts generally do not inquire into the adequacy of consideration - parties can make their own bargains.同等价值的对价。法院通常不询问对价的相当性 - 当事人可以自己作出交易。: It must have some legal value, but not necessarily be of equal market value.
• Performing an existing contractual duty is generally not good consideration for a new promise from the other party (*Stilk v Myrick*).

For an agreement to be a binding contract, the parties must have intended their agreement to have legal consequences. Courts apply presumptions based on the context:

• Social/Domestic Agreements: Presumed NOT to have an intention to create legal relations (e.g., agreements between family members, *Balfour v Balfour*). This presumption can be rebutted if there are serious consequences or evidence of contrary intent (e.g., *Merritt v Merritt*, *Wakeling v Ripley*).
• Commercial/Business Agreements: Presumed TO HAVE an intention to create legal relations. This can be rebutted by clear words stating otherwise (e.g., "honour clauses").

The court ultimately takes an objective approachCourts look at all available evidence (conduct of parties, context, surrounding circumstances) to determine whether a reasonable person would conclude that the parties intended to create a contract.法院会审视所有可获得的证据（当事人的行为、协议背景、周围环境），以判断一个理性的人是否会认为当事人有意订立合同。, considering all circumstances.

TermsTerms are provisions or stipulations in a contract that specify the rights and obligations of the parties involved.条款是合同中规定相关各方权利和义务的条文或规定。 are the promises and stipulations that form the content of a contract. They can be:

• Express TermsExpress terms are terms that are explicitly stated and agreed upon by the parties either in writing or orally.明示条款是当事人明确说明并同意的条款，可以是书面或口头形式。: Terms that are explicitly stated and agreed upon by the parties, either orally or in writing.
• Implied TermsImplied terms are not expressly stated but are assumed to be included in the contract by law, custom, or the nature of the agreement. They must be consistent with express terms.默示条款虽未明确说明，但根据法律、惯例或协议性质被假定包含在合同中。它们必须与明示条款一致。: Terms not expressly stated but are incorporated into the contract by law, custom/trade usage, or to give the contract business efficacy.

Terms can also be classified by their importance:

• ConditionsConditions are fundamental terms of a contract that, if breached, entitle the innocent party to terminate the contract and claim damages.条件是合同的基本条款。如果违反，受害方有权终止合同并要求赔偿损失。: Essential terms going to the root of the contract. Breach allows the innocent party to terminate the contract and/or claim damages.
• WarrantiesWarranties are minor terms of a contract that, if breached, entitle the innocent party to claim damages but not to terminate the contract.保证是合同的次要条款。如果违反，受害方可以要求赔偿损失，但无权终止合同。: Less important terms. Breach only allows the innocent party to claim damages.

A breach of contractBreach of Contract is the failure to perform any term of a contract without a legitimate legal excuse.违约是指在没有合法法律借口的情况下未能履行合同的任何条款。 occurs when a party fails to perform their obligations under the contract without a lawful excuse.

Types of Breach:

• Actual Breach: Failure to perform when performance is due.
• RepudiationRepudiation (or anticipatory breach) occurs when a party indicates they will not perform their obligations before performance is due, or their actual performance is completely different from what was agreed, or they make no effort to perform.拒绝履行（或预期违约）指一方在履行到期前表示不履行义务，或其实际履行与约定完全不同，或其不努力履行合同条款。 (Anticipatory Breach): When one party indicates, before performance is due, that they will not perform their obligations. This can occur if a party makes no effort to perform, performance is completely different, or they clearly indicate non-performance before the due time.
• Partial Performance with Breach: Occurs when a party complies with some terms but breaches other terms.

When a contract is breached, the innocent party is entitled to remedies. The primary common law remedy is damages. Equitable remedies may be available if damages are inadequate.

Common Remedies:

• DamagesDamages are monetary compensation awarded to the injured party for the loss suffered due to the breach of contract. The aim is to compensate the innocent party, not to punish the defendant. Loss must not be too remote (*Hadley v Baxendale*).损害赔偿是判给受害方以弥补因违约所遭受损失的金钱补偿。其目的在于补偿无辜方，而非惩罚被告。损失不得过于间接 (*Hadley v Baxendale* 案)。: Monetary compensation to put the innocent party in the position they would have been if the contract had been performed. The loss must not be too remote (see *Hadley v Baxendale* for rules on remoteness of damage). Damages aim to compensate, not punish.
• RescissionRescission is the cancellation of a contract, returning the parties to their positions before the contract was made. It is the right to rescind the contract.撤销是指取消合同，使双方恢复到订立合同之前的状态。这是撤销合同的权利。: Setting the contract aside and restoring parties to their pre-contractual positions.
• Specific PerformanceSpecific performance is a court order requiring a party to perform their obligations under the contract. It's typically used when damages are inadequate, such as for unique goods (e.g., land, rare art).特定履行是法院命令一方履行其合同义务。通常在损害赔偿不足以弥补损失时使用，例如针对独一无二的物品（如土地、稀有艺术品）。: A court order compelling a party to perform their contractual obligations. Usually granted when the subject matter is unique and damages are not an adequate remedy.
• InjunctionAn injunction is a court order requiring a party to do or refrain from doing a specific act. It can be prohibitive (stop an action) or mandatory (compel an action).禁令是法院命令一方执行或禁止执行特定行为。它可以是禁止性的（停止某一行为）或强制性的（强制执行某一行为）。: A court order restraining a party from doing something (prohibitory injunction) or compelling them to do something (mandatory injunction).

Common law damages are awarded as of rightThis means the innocent party is entitled to damages once breach and loss are proven.这意味着一旦证明违约和损失，无辜方就有权获得损害赔偿。. Equitable remedies like specific performance and injunction are discretionaryThe court decides whether to grant these remedies based on fairness and justice; they are not automatic.法院根据公平和正义决定是否授予这些救济措施；它们不是自动的。 and awarded when common law remedies are inadequate.

The IPAC method is a structured way to answer legal problem questions:

• Issue: Identify the key legal question(s) the parties are arguing about.
• Principle: State the relevant legal principle(s) and authority (statute/case law) applicable to the facts.
• Application: Apply the legal principles to the facts of the problem. Explain how and why the law applies. Consider arguments for both sides if applicable.
• Conclusion: State your reasoned answer to the issue(s), linking facts and legal principles.