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1、Contract FormationContract Formation （签订合同）（签订合同）I 合同的有效性(The Validity of a Contract)What is a Valid Contract?有效的合同是当事人双方双方达成的具有法律具有法律 约束力约束力(legally binding)的协议，可以书面 (writing)、口头(words)或行为(action)进 行证明。A Valid CONTRACT is a legally legally bindingbinding agreement, between two parties, which agreem
2、ent may be evidenced by writing, words or action.I 合同的有效性(The Validity of a Contract)Freedom of Contract (契约自由)Bargaining Power: especially for Standard Form Contract （协议能力格式合同）THUS, the law often intervenes（干预） where one party seeks an unfair advantage as a result of his superiorsuperior bargaining
3、 position.Such intervention will be made by CourtsCourts or LegislationLegislation such as the Sale of Goods Act, the Unfair Contract Terms Act, etc.1 无效及可撤销合同 (Void or Mthe circumstances give a clear contrary contrary indicationindication. *During the negotiation stage, the words Subject Subject to
4、 to ContractContract（以合同为准） amounts to a strong presumption that no immediately binding contract is intended.IV 对价(Consideration)What is Consideration?对价，即各方当事人给予或同意给予对方 当事人的，通常是支付价款支付价款或承诺某种行承诺某种行 为为作回报。CONSIDERATION is what each party gives or agrees to give to the other, usually PaymentPayment or
5、 a Promise Promise to to do do sthsth. . In return.IV 对价(Consideration)What is Consideration? 法律意义上有价值的对价可能是增进了一方当 事人的某种权利权利(right)、利益利益(interest)、利润利润 (profit)或益处益处(benefit)，也可能是另一方当事人 承受或承担某种不作为不作为(forbearance)、伤害伤害 (detriment)、损失损失(loss)或责任责任(responsi-bility) 。A valid CONSIDERATION in the sense o
6、f the law may consist: Either in some RightRight, InterestInterest, ProfitProfit or BenefitBenefit accruing to one party; Or in some ForbearanceForbearance, DetrimentDetriment, LossLoss or ResponsibilityResponsibility given, suffered or undertaken by the other.IV 对价(Consideration)Types of Considerat
7、ionIValid Consideration Executed consideration: A Performed ActPerformed Act in return for a promise. Executory consideration A PromisePromise given for a promise.IInvalid Consideration Past considerationWhat has already been done at at the the time time the the promisepromise is made, EXCEPT THAT t
8、here is an Implied PromiseImplied Promise.IV 对价(Consideration)Types of ConsiderationIInvalid Consideration Past considerationWhat has already been done at at the the time time the the promisepromise is made, EXCEPT THAT there is an Implied PromiseImplied Promise.*Implied Promise the works were reque
9、sted by the promisor; the parties must have understood $Performance of existing Contractual Contractual DutyDuty owed to the promisor; $Performance of existing Contractual Contractual DutyDuty owed to a third party; $ForbearanceForbearance or WaiverWaiver of existing rights.IV 对价(Consideration)Waive
10、r of Existing Debt*The Promise supported by Consideration will be binding, such as:$Alternative consideration;$Bargain between two creditors;$Third party part payment.V 合同条款(Terms of Contract)Express TermsI Oral ContractI Written Contract Be substantially substantially completecomplete on the face o
11、f it or capable of being clarifiedcapable of being clarified Statement Statement of of FactFact made before before the the contractcontract which induces a party to enter into the contract MAY become a term of the contract Special knowledge Passage of time The reason to omit Oral Oral evidenceeviden
12、ce NOT usually admitted to add to, vary or contradict written terms, unless it can be shown that the document was NOT intended to comprise all the agreed terms.V 合同条款(Terms of Contract)Implied TermsIn some cases they will add toadd to the express terms; In other cases they may overrideoverride the e
13、xpress terms.I By reference to customBut NOT if that would produce an inconsistency with the express termsI By statuteI By the courts Necessary to give business efficacy Implicit in the nature of the contract itselfV 合同的共同利益关系(Privity of Contract)Doctrine of Privity of ContractThe law requires that
14、Consideration MUST move from the promisee and only a Party Party to to a a ContractContract CAN enforce it. * *EXCEPTIONS: Where an agent enters into a contract with a third party on behalf of this principal, the resulting contract is actually enforceable by and between the principal and the third party. The Contracts (Rights of Third Parties) Act 1999 The contract expressly provides that he may;or The term confers a benefit on him, unless it appears that the contracting parties did not intend him to have the right to enforce it.
