1、 毕业设计 (论文 )外文资料翻译 院（系） ： 经贸系 专 业： 市场营销 姓 名： 学 号： 外文出处： Donald Harris and Denis Tallin.Contract Law TOday. 1995 附 件： 1.外文资料翻译译文； 2.外文原文 完成日期： 2010 年 3 月 25 日 (用外文写 ) 1.Briefly on contracts The law of contracts is concerned with the enforcement of promissory obligations. Contractual liability is usual
2、ly based on consent freely given in the form of an express promise or one implied in fact from the acts of the parties. In some circumstances, however, the courts will imply a promise (often called implied in law or quasi contract) in order to avoid unjust enrichment in spite of lack of consent by t
3、he party who is bound by it. The subject matter of contract law comprises capacity, formalities, offer and acceptance, consideration, fraud and mistake, legality, interpretation and construction, performance and conditions of performance, frustration and impossibility, discharge, rights of assignees
4、 and third party beneficiaries, and remedies. It has, to a very considerable extent, preserved its unitary quality , resisting fundamental distinctions between different classes of contracts according to either the subject of the agreement or the nature of the parties. Accordingly, with some excepti
5、ons, its principles are applicable to agreements on such varied subjects as employment, sale of goods or land, and insurance, and to such diverse parties as individuals, business organizations, and governmental entities. It is largely state rather than federal law, but it differs usually only in det
6、ail from one state to anther. While it is still primarily case law, an increasing number of statutes deal with particular problems. The Uniform Commercial Code, for example, contains some special provisions on the formation of contracts for the sale of goods. And by the Tucker Act of 1887, as amende
7、d, one of the most significant of the federal statutes in the field, the United States government has waived its sovereign immunity in contract actions by consenting to suit in the federal courts. Some rules laid down by statute, and by case law as well, are mandatory or compulsory and cannot be avo
8、ided by the parties, while others are implicative, interpretative, or suppletory and can be varied by agreement. A contract may be simply defined as a promise for the breach of which the law gives a remedy , although the word “contract” may also be used to refer to the series of acts by which the pa
9、rties expressed their agreement, to the document which they may have executed, or to the legal relations which have resulted. Not all promise are enforceable and several criteria must be met before the law will give a remedy. Two of the most fundamental of these are the requirement of a writing and
10、requirement of consideration . the requirement of a writing is imposed by statutes of frauds, derived from the English Statute of Frauds of 1677, which have been enacted throughout the United States. Typically they provide that, with some exceptions, specified kinds of contracts are unenforceable un
11、less evidenced by a writing. They usually cover contracts to sell goods of more than a minimum value, contracts to sell land, contracts to answer for the debt of another, and contracts not to be performed within a year. Many agreements, such as most contracts to furnish services, are not included an
12、d are enforceable even if there is no writing. Although dissatisfaction has led to the repeal of most of the English Statute of Frauds in 1954,there has been no serious movement for its abolition in the United States. apart from any requirement of a writing, a promise is not generally enforceable in
13、 the United States unless it is supported by consideration. Historically a promissory could make a binding written promise, even without consideration, by affixing his wax seal to the writing. But as the wax seal was replaced by a penned or printed imitation, the seal became an empty formality and i
14、ts effectiveness has now been eliminated or at least greatly diminished by state statutes. Consideration is essentially something for which the promisor has bargained and which he has received in exchange for his own promise. It may be another promise given in return, in which case the resulting con
15、tract is known as a bilateral contract, or it may be an act given in return, in which case the resulting contract is known as unilateral contract. But , for example, a gratuitous promise, including one to pay for goods or services which have already supported by consideration. Fortunately there are
16、only a few such instances of business promises in which the requirement of consideration is not met. One of the most troublesome involves the “firm”, or irrevocable, offer. The usual rule in the United States is that an offeror has the power to revoke his offer at any time before its acceptance by t
17、he offeree, and a promise by the offeror not to revoke is not generally effective unless supported by consideration. A common device for holding the offeror to his promise is the payment to him of a nominal sum, for example one dollar, as consideration for what is then known as an “option.” Even wit
18、hout consideration a few courts have held that the offeror was estopped, or precluded, from revoking his offer where the offeree relied to his detriment upon the promise. But the most satisfactory solution has been through legislation, adopted in a number of states, making an offer irrevocable, rega
19、rdless of consideration, if it is embodied in a signed writing which states that it is irrevocable. As this suggests, the tendency has been to attempt to remedy the deficiencies of the doctrine of consideration rather than to discard it. In the United States, contracts, like statutes, are characteri
20、stically detailed and prolix. Those prepared by lawyers are often compounded of standard clauses, popularly known as “boiler-plate,” taken from other agreements kept on file or from books. Even when a lawyer is not directly involved, the parties may use or incorporate by reference a standard printed
21、 form which has been drafted by a lawyer, perhaps for a particular enterprise, perhaps for an association of enterprises, or perhaps for sale to the general public. This attention to detail may be due to a number of causes, including the standardization of routine transactions, the frequent involvem
22、ent of lawyers in all stages of exceptional transactions, the inclination to use language which has been tested in previous controversies, and the desire to avoid uncertainty when the law of more than one state may be involved. All of these add to the general disposition of the case-oriented America
23、n lawyer to provide expressly for specific disputes which have arisen in the past or which might be foreseen in the future. A related phenomenon is the widespread use of standard forms “contracts of adhesion,” such as tickets, leases, and retail sales contracts, which are forced upon the party with
24、inferior bargaining power. In recent years, courts and legislatures have become increasingly concerned with the effects which unrestrained freedom of contract may have in such situations. Courts which had always refused to enforce agreements contemplating crimes, torts, or other acts which were clea
25、rly contrary to the public interest, began, under the guise of interpreting the contracts, to favor the weaker party and in extreme cases to deny effect to terms dictated by one party even where the subject of the agreement was not in itself unlawful. Legislatures enacted statutes fixing terms , suc
26、h as miximum hours and minimum wages for employment, or even prescribing entire contracts, such as insurance policies, and gave administrative bodies the power to determine rates and conditions for such essential services as transportation and electricity. Nevertheless, in spite of the erosion of the doctrine of freedom of contract in many areas, the doctrine is still the rule rather than the exception. 译文 :
