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1、Session One Course introduction,Introduction,A contract is a legally enforceable agreement between two or more parties. And a legally binding contract must have four features: 1) mutual consent, 2) consideration, 3) competent parties, and 4) a legal purpose.,Mutual consent refers to the mutual agree
2、ment on all the terms of a contract. Mutual consent exists when there is an offer and complete acceptance of that offer. A legally binding offer must be definite, must show genuine intent to enter into an agreement. The party that makes the offer is the offeror, and the party to whom the offer is ma
3、de is the offeree. Acceptance takes place when the offeree unconditionally agrees to the offer made by the offeror. And, thus, a contract exists between the offeror and the offeree.,Another feature of a legally binding contract is that each party to the contract must promise to do or give something
4、in order to bind the contract. And that promise is called consideration. Promises to pay money, render services and supply goods frequently serve as consideration in a contract. A third feature of a legally binding contract is that the parties to the contract must have the legal capacity to make and
5、 enter into a contract. In other words, the parties must be legally competent, and they must have the ability to understand the contract and its consequences.,A fourth feature of a legally binding contract is that it must be for a legal purpose. This means that any of the terms and conditions of the
6、 contract must not in any way violate the law, must not be against the public good or be harmful to the health and morals of the general public. In this course, we are going to study the following commercial contracts, which are most often used in international trade in goods, in services and in IPR
7、-related products, etc. They are: agency agreement; leasing agreement; contract for providing labour services abroad; contract for construction engineering projects; inviting and contract on technology transfer.,I. stylistic features of commercial contracts,(语篇特点: 汉,英两种法律的语言,语篇文体结构大体相当,却具有高度程式化的特点:
8、首先以总则规定法律事务主体,(从总则到条款,先宏观后微观的语篇结构),一般权利和义务,然后具体的分则规定情况下的法律权利和义务.了解法律语篇结构的特点,有助于译者/读者更好理解文本内容的语篇语境.),I. stylistic features of commercial contracts,A commercial contract is unique in its style. Firstly, it has comparatively fixed and generally accepted format with the opening/preamble, main clauses, a
9、nd concluding parts. Secondly, it usually uses capitalization for those words or wording being specifically defined or interpreted in the contract.,Thirdly, typical patterns indicating general contractual clauses are popularly used for particular legal purposes. To sum up, the format of a commercial
10、 contract displays such characteristics as “solemn”, “rigid”, and even “assiduously stilted”. “Solemn” is for maintaining the justice and dignity of the law, “rigid” is for its exactness and precision of diction and meaning, and “assiduously stilted” is for its strict and straight complex structure.
11、,II. Linguistic features of legal English,1) 频繁使用外来语: 尤其是英语中借用了西腊语; 拉丁语; 法语; 德语等外语中的法律词汇. 大词/庄严,显示法律语言的神圣和权威,及缜密,以区别于普通文体. 2) 古语词的大量使用: 构成了法律文体特有的稳定性和保守性.因而,掌握和了解此类表达对于学习/理解/翻译/使用法律文体是有必要的.,II. Linguistic features of legal English,Legal English refers to written English, including laws use of pair w
12、ords, and use of long-winded / complex sentences and typical patterns, etc.,Some examples:,I. Words etc. b) Legal terms burden of proof(举证责任)/ damages(损失赔偿金)/ solvency(清偿债务)/insolvency(资不抵债 )/ due diligence(审慎调查)/ negotiable instrument( 可流通的票据) / reasonable doubt(合理的怀疑), etc. c) ordinary words premi
13、ses /execute/consideration/presents/save/prejudice, etc. d) old English/compounds witnesseth /forthwith/ aforesaid/ hereby/whereof/ etc.,e) Borrowed words (Latin/French)quorum(法定人数)/ ad hoc (专门的) / bona fide (真诚的) / de facto (事实上) / per se (自身) / pro bono (为了公益) / vice versa (反之亦然) /inter alia ( 特别
14、). f) Fixed expressions & patterns for no other purposes/ including but not limited to(or without limit to)/ or other similar or dissimilar causes/ shall not operate g) Pair of words fulfill or perform/construe and interpret/terms and conditions/rights and obligations/null and void/due and payable/b
15、y and between, etc.,法律文本中使用的模糊语词:,举例: reasonable; adequate; average; apparently; approximately; due care; due process; incidental; nominal sum, etc. 法律文体的模糊性,主要是指某些法律条文,或法律表述语义上不能百分之百确定的现象,一般用于涉及法律事实的性质,范围,程度,数量无法明确的情况.,II. Sentences a) long-winded sentence /complex sentence,(法律文体的句法特点: 1) 广泛使用陈述句:
16、规定各方的权利和义务,陈述事实; 2) 使用完整句: 语言结构完整,表意严密,陈述无误.不使用省略句,避免因句子的省略而造成的歧义. 3) 使用长句: 特别是复合句,短语结构,表达逻辑关系,句子结构严谨.),II. Sentences a) long-winded sentence /complex sentence,e.g. 1. If, after the signing of this Agreement, the Chinese government either at the State, provincial, municipal or local level adopts any new law, regulation, decree or rule, amends or repeals any provision of any law, regulation, decree or rule, or adopts any different interpretation or method of implementation o
