英美合同侵權(quán)法

1、wordCase discussion1. Mr. X is regular customer of Mr. Y, the owner of a bookstore. One morning, Mr. X went into Mr. Ys bookstore, looked at some books, and picked up a book. Because Mr. X forgot bringing money with him, he promised Mr. Y that he would pay for the book the next day. Mr. Y agreed. Is

2、 there a contract If so, classify it within the types in this chapter.(Express contract; unilateral contract; valid contract; executor contract)2. Mr. X called a neighbor and offered to sell her his computer next week for 200 dollars. If his neighbor wished to accept, she could call back to him. The

3、 next morning, she called back and said she was willing to buy the computer. Is the contract formed bilateral or unilateral Why Bilateral contract, because each of the contracting parties makes a promise.3. While Mr. X was gardening in Mr. Ys yard, Mr. Y was reading a book at home. Then Mr. Y stood

4、by the window and watched Mr. X do the work once in a while. When Mr. X had finished the work. Mr. X asked Mr. Y to pay for his work. Do you think there is an implied or a quasi contract between them Why Implied contract 課本7 Silence is not an effective acceptance unless an offeree takes the benefit

5、of the offered services.1.If you offer to sell a friend a computer worth1000 dollars for 100dollars, your friend accepts the offer. Is there a binding agreement between you Yes.課本532. Suppose Mr. X orally offered to sell Mr. Y a used car for 5000 dollars. Two days later Mr. X notified Mr. Y that the

6、 car was no longer for sale. In that case, could Mr. X end the offer Yes. Oral contract課本100頁3. Assume Mr. X sent a letter to Mr. Y offering to sell a bicycle for 50 dollars. Mr. Y sent a return letter to Mr. X rejecting the offer. A week later Mr. Y decided to accept the offer. Could Mr. Y accept t

7、he bicycle No, the offer is terminated because of rejecting by the offeree Mr.Y. it is a new offer , Mr .Y is offeror; Mr.X is offeree. So Acceptance Must Be Accepted Only by the Offeree Mr.X.4. Suppose a man helped you pull your car out of ditch. After that, you promised to give him 30 dollars for

8、the help, and the man agreed. Would the promise be binding No. Preexisting obligations. A promise to do something that one is already obligated.not constitute consideration.課本66頁Case discussion:1.Suppose you were induced to buy a second-hand car. Before you bought the car the dealer stated that the

9、engine had recently been rebuilt. Actually it had not. After you bought the car, you had engine troubles and the car stopped running. If you wanted to break the contract, what defense can you have Misrepresentation. It is the creation of an impression in the mind of another person which is not in ac

10、cord with the actual acts of the situation.當(dāng)事人在訂立合同的過程中對(duì)另一方所作出的與事實(shí)不符的陳述。 l (1)要約的概念、構(gòu)成要件definition of offer elements of offerAn offer to contract is a manifestation of intention to be presently bound by a series of definite and specific term, which is communicated to the offeree and creates power in

11、 the offeree to accept. 1.Serious Intention意圖嚴(yán)肅To a reasonable person, the offeror did in fact intend to make an offer and to be presently bound by it. 在通情達(dá)理的人看來， 要約人必須嚴(yán)肅認(rèn)真地向受要約人發(fā)出要要約，并且受其約束2.Definiteness明確性An effective offer must have definite terms.有效要約條款必須明確。 3 munication送達(dá)l (2)Termination of the

12、 Offer要約終止 1. Lapse of Time時(shí)效經(jīng)過 An offer terminated automatically by law when the definite period of time or a reasonable time has passed. 經(jīng)過特定的一段時(shí)間或者合理時(shí)間后，要約自動(dòng)終止。2.Revocation by the Offeror要約人撤銷 The offeror has the legal right to withdraw an offer before it is accepted.要約人有權(quán)在要約被承諾前撤銷要約。 3. Rejectio

13、n by the Offeree受要約人拒絕 The offer may be rejected by the offeree, in which case the offer is terminated. including a counteroffer and a conditional acceptance 包括反要約和有條件的承諾 4. Death or some legal incapacity當(dāng)事人死亡或喪失締約能力 An offer terminates when either party dies or becomes insane before acceptance.5. D

14、estruction of the proposed subject matter合同標(biāo)的物滅失l (3)承諾的概念、構(gòu)成要件definition:the offerees manifestation of intention to be presently bound by the terms contained in the offer.承諾是受要約人做出的立即受要約約束的意思表示。1.Acceptance Must Be Accepted Only by the Offeree承諾只能由受要約人做出。2.Acceptance Must Agree with Offer 承諾必須與要約一致

15、3. Acceptance Must Be Communicated to the Offeror承諾必須傳達(dá)給要約人 l (4)抗辯事由defenses1.Misrepresentation不正當(dāng)說明 v definition: It is the creation of an impression in the mind of another person which is not in accord with the actual acts of the situation.當(dāng)事人在訂立合同的過程中對(duì)另一方所作出的與事實(shí)不符的陳述。 2. Mistake錯(cuò)誤 v definition:M

16、istatke is a belief that is not accord with the facts.當(dāng)事人對(duì)構(gòu)成交易的根底事實(shí)在認(rèn)識(shí)上發(fā)生的錯(cuò)誤。 3、Duress 脅迫 v definition: It means the use of threats to bodily or other harm which are used to overcome a persons free will and induce the person to enter a contract through fear or force.4. Undue Influence不正當(dāng)影響 v definit

17、ion: it is the use of a confidential relationship, in which one person owes another a duty to look out for the latter persons interests, and where the duty-bound person uses this position for personal benefit at the expense of the person to whom the duty is owed.5. Capacity of Parties締約能力 v definiti

18、on: Capacity is the ability to perform legally valid acts.6. Illegality違法性 v A contract is illegal if it violates law or is contrary to the public policy or interest. 合同違法或違反公共政策或利益。v 7. Statute of Frauds反欺詐法 v It requires that certain types of contracts must be in writing signed by the party to be

19、bound and are not enforceable unless they are evidenced by such a writing.v 8. Oral Evidence Rule口頭證據(jù)規(guī)那么 l 5 damages損害賠償金 v 1 pensatory damages 補(bǔ)償性損害賠償金 v 2.consequential damages間接損害賠償金(lost profits )v 3.liquidated damages約定違約金 v 4.penalty damages懲罰性損害賠償金 v 5.nominal damages象征性損害賠償金 l 6Tort and Crim

20、e侵權(quán)和犯罪Private law(against injure party) Public law(against the society) the injured party bring an action The state prosecutes To protect the individual interests To protect the public Damages or specific performance or injunction Imprison or fines Preponderance of the evidence Prove beyond reasonab

21、le doubt l Tort and breach of contract侵權(quán)和違約Violation of one persons legal duty Violation of self-imposed duty To place the palintiff as if the tort had not occured To place the plaintiff as if the contract had been performed damages or injunction Damages or injunction or specific performance l 7Clas

22、sifications of Torts侵權(quán)的分類 1. intentional torts成心侵權(quán) intention: the wrongdoer wanted to harm someone or knew that what did would result in harm.侵權(quán)人希望或者確信其行為會(huì)給他人造成損害。 2. negligence 過失侵權(quán) It is the unintentional causing of harm that could have been prevented if the defendant had acted as a reasonable and

23、 prudent person 3. strict liability tort嚴(yán)格責(zé)任侵權(quán) l 8Battery毆打的概念、構(gòu)成要件 It is the intentional, unprivileged and either harmful or offensive contract with the person of another. 成心地對(duì)他人的人身進(jìn)行有害的或冒犯性的接觸。 Elements: 1An act by the defendant which brings about harmful or offensive contact to the plaintiffs per

24、son or effects傷害性或冒犯性的接觸他人的行為 2The defendants intent to make such a contact接觸的成心 3The causation between the defendants act and the offensive or harmful touching of the plaintiffs person or effects因果關(guān)系 l 9Assault威嚇的概念、構(gòu)成要件 It is an act by the defendant creating a reasonable apprehension in the plaint

25、iff for immediate harmful or offensive contact to the plaintiffs person.通過一定的行為對(duì)他人進(jìn)行恫嚇，從而引起其對(duì)于即將來到的毆打行為產(chǎn)生合理的警覺 Elements: (1)Intent to cause apprehension of contact 有使人產(chǎn)生警覺的成心 (2)Present apparent ability of the defendant to cause contact有立即進(jìn)行毆打的實(shí)際能力 threatening gesture by the defendant有實(shí)際威脅行為 (3)Well

26、-grounded apprehension of imminent unconsented contact.有使人產(chǎn)生合理警覺 l 10侵犯動(dòng)產(chǎn)與侵占動(dòng)產(chǎn)的區(qū)別 1Trespass to chattels Infringes a possessors interest in freedom from minor intentional interference with personal property. 成心地對(duì)他人動(dòng)產(chǎn)權(quán)益 的進(jìn)行侵犯(2)It occurs when a person intentionally exercises exclusive control over the personal property of another without permission侵權(quán)人未經(jīng)允許，成心行使對(duì)他人動(dòng)產(chǎn)的排