1. OFFER(an offer is difinite promise to be bound on specific terms and must be distiguished from the mere supply of information an from an invitation to treat)In the law of contract, an offer is a definite promise to another to be bound on specific terms. It is capable of (能够) acceptance so as to form a binding contract.\\\An offer can be made to an individual, a class of persons or to the world at large and it can be accepted by the conduct of the offeree ( Carlill v Carbolic Smoke Ball Co 1893) the smoke ball must protect the user during the period of use-the offer was not vague.Such an offer was possible,as it could be compared to reward cases.\\\Once an offer has been accepted, a binding contract is created. Either party may legally enforce the promise of the other.Supply of informationA mere supply of information is not an offer, because there is no intention to be bound. For example, stating theminimum price that one would consider if a sale were to be agreed does not make an offer ( Harvey v Facey 1893)The defendant’s telegram was merely a statement of his minimum price if a sale were to be agreed.it was not an offer which the claimant could accept.Statement of intentionSimilarly, a mere statement of intention is not an offer neither.advertising an event such as an auction will take place does not make an offer. (Harris v Nickerson ).2. INVITATION TO TREATAn invitation to treat is an indication that someone is prepared to receive offers with the intention to form a binding contract. There is no binding contract until this offer is made and, in turn , accepted.AdvertisementsAn advertisement of goods for sale is usually an attempt to induce offers (Partridge v Crittenden 1968)Display of goods in a shop windowa shopkeeper was prosecuted for offering for sale an offensive weapon by exhibiting a flick knife in the shop window.In Fisher v Bell 1961,The display of an article with a price on it in a shop window is merely an invitation to treat.It was held that this was not an offer for sale, but an invitation to treat.Auction sales（拍卖）An auctioneer’s request for bid is not an offer to sell to the highest bidder, but an invitation to treat. The bid itself is an offer, which the auctioneer is then free to accept or reject ( Payne v Cave 1789).Invitations for tenders (竞标)3. ACCEPTANCE OF AN OFFERACCEPTANCEValid acceptance of a valid offer is one of the essencials of a contract\\\An acceptance must be an unqualified (无条件的) agreement to the terms of the offer. Acceptance is generally not effe ctive until communicated to the offeror, except where the ‘postal rule’ applies. A purported acceptance which introduces any new terms is a counter-offer, which has the effect of terminating the original offer ( Hyde v Wrench 1840).T he original offer of 1000 had been terminated by the counter-offer of 950.A response to an offer which is actually a request for further information will not form an acceptance. Acceptance ‘ subject to contract’Acceptance ‘ subject to contract’ means that the offeree is ag reeable to the terms of the offer but proposes that the parties should negotiate a formal contract. Neither party is bound until the formal contract is signed.Method of acceptanceThe acceptance of an offer is made by a person authorised to do so, usually the offeree or his authorised agent. In some circumstance (Carlill v Carbolic Smoke Ball Co 1893), performance of the act required by the offer or advertisement consititutes an acceptacne. There must be some act on the part of the offeree since passive inaction or silence is not capable of acceptance ( Felthose v Bindley 1862)The action failed.the claimant had no title to the horse. The communication of acceptanceAcceptance is generally not effective until communicated to the offeror, except where the ‘postal rule’ applies, or the offeror waives the need for communication.The offeror may specify the sole means of communication, in which case only compliance with their terms will sufficePostal ruleCommunication of acceptance by means of post is subject to the postal rule established in Adams v Lindsell 1818The acceptance was made ‘in course of post’（no time limit was imposed）and was sffective when posted on 5 Sep..It provides that where the use of the post is within the contemplation (期望)of both parties, and the letter is correctly addressed and stamped and put into the post, the acceptance is complete and effective as soon as a letter is posted, even though it may be delayed or even lost in the post.The intention to use the post for communicaiton of acceptance may be deduced from the circumstances.If the offeror specifies a particular means of communication, the postal rule may not apply4. REVOCATION OF AN OFFERThe offeror may revoke or cancel the offer at any time before acceptance unless by a separate opinion agreement, they agree to keep the offer open for a certain period of time Once accepted, an offer cannot be revoked. once revoked, an offer is no longer available for acceptance.Method of revocationThe revocation may be by express words or be inferred from the conduct of the offeror, for example, saling the goods to a third party.Whatever form it takes, the revocation is generally not effective until communicated to the offeree.Revocation can be communicated by offeror or by a reliable third party (Dickinson v Dodds 1876)The defedant was free to revoke his offer and had done so by sale to a third party ;the claimant could not accept the pffer after he had learnt from a reliable informant of the revocation of the offer to him..Postal ruleWhile a postal acceptance of an offer is usually effective from the time of posting, a postal revocation of an offer is not effective until received by the offeree. Therefore, where a letter of revocation crosses with a letter of acceptance in the post, a legally binding contract have already been formed.(Byrne v Tienhoven 1880)The letter of revocation could not take effect until received (20 October);it could not revoke the contract made by the telegram acceptance of the offer on 11 October.5. TERMINATION OF AN OFFERRejection of an offer or refusal to accept.Counter- offer : A counter offer is simply a new offer (Hyde v Wrench)The original offer of 1000 had been terminated by the counter-offer of 950Conditional acceptance: A conditional acceptance is an attempt to introduce new terms into the offer and cannot be an acceptance ( Neale v Merrett ). A request for information is not a counter offer and did not terminate the original offer, a valid contract existed (Stevenson v McLean).Lapse of time: An express or implied period will terminate an offer (Ramsgate Hotel v Montefiore) the offer was valid for a reasonable time only and five months was too long.Revocation of an offerDeath.Chapter 4 Intention1. INTENTIONA contract is a legally binding agreement resulting from the valid acceptance of a valid offer supported by considerations. Intention to create legal relations•No agreement can consititute a contract unless there is evidence, express or implied, of the intention of the parties that their agreement should give rise to legally binding obligations.•An express statement in making an agreement may not intend to create legal relations ( Rose & Frank v Crompton 1925), but this is unusual.•However, in many cases, the parties don’t express any i ntention and the courts must interpret the agreement depending on the relationship of the parties.Presumption•In a legal context, a presumption is an assumption of fact accepted by the courts until disproved.•The court is entitled to assume a fact to be ture until there is a greater weight of evidence which disproves the presumption.Rebutall•If the presumption is disproved or outweighted, it said to be rebutted. A witness can present facts to persuade the judge that the presumption is not ture.2. TWO BASIC PRESUMPTIONSThere are two basic presumptions, family and social arrangements (协议、约定) and commercial arrangements. Both may be rebutted by evidence to contrary.Family and social arrangements•Therefore an agreement by a husband to pay an allowance to his wife during his absence abroad was not legally binding (Balfour v Balfour 1919).•when the agreement relates to property matters, it is more likely that the court will infer an intention to creat legal relations.•The presumption is rebuttable and the courts may decide that there is an intention to create legal relations in an agreement between husband and wife , especially if they are no longer living together or if the agreement isformally signed (Merritt v Merritt 1970)In the circumstances,an intenrion to create legal relations was to beinfeered and the wife could sue for breach of contract. .Commercial arrangements•Commercial arrangements are generally regarded as contractual rather than informal, unless the facts indicate the otherwise. Some co mmercial agreement may be described as ‘binding in honor only’. This is an express denial ofintention to create legal relations and is effective to rebut the presumption ‘Letter of comfort’ given to creditors of subsidiary companies are presumed to be statements of present intentions only and are not legally binding .3. PRIVITY OF CONTRACT (合同不涉及第三人原则)As a general rule, contractual agreements can only affect persons who have entered into the agreement expressed in the terms of the contract.Thus, no third party can rely on or enforce any terms in a contract to which they are not themselves a party ( Dunlopv Selfridge1915).However, it is possible to formally transfer the benefit of a contract to a third party. This process is known as assignment and must be in writing. It should be noted that the benefit of a contract cannot be assigned without the consent of the other party to the contract.It is also possible to create a contract specifically for the benefit of a third party.Where the contract has been validly assigned to the third partyWhere they act in another capacityIn Beswick v Beswick1968, a widow was able to successfully sue her nephew as administrator of her late husband’s estate rather than purely as his wife.Where the contract is a collateral contractThis situation arises where one party promises something to another party if that other party enters into a contract with a third party.For example, A promises t something to B if B enters into a contract with C. In such situation, B can insist on A complying with the original promiseWhere there is foreseeable loss to a third partyIn a case, it is foreseeable that the breach of contract will cause a loss to a third party , therefore, theclaimants sucessfully sued contractors for poor workmanship.In the area of motoring insurance, Statute law has intervened to permit third parties to claim directly against insurers, but much wider statutory intervention has been introduced by the Contracts (Rights of Third Parties) Act 1999.Chapter 5 Consideration1. CONSIDERATIONConsideration is an essential element of all binding contracts, except those made by deed. This is based on the idea that the contractual promise should not be free but should have an element of bargain about it, even though the courts will not weigh up the relative values of each party’s promise or act.The doctrine of consideration provides that one party must know that they have bought the other party’s promise, either by performing some act or by offering a promise.An definition was given in Currie v Misa. ‘A valuable consideration in the sence of law may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given,suffered or undertaken by t he other.’Types of considerationA valuable consideration may be executed or executory but cannot be past.Executed consideration is a performed or executed act in return for a promise.Executory consideration is a promise given for a promise (and will be valid before either party performs their promise).Both executed and executory consideration are provided at the time when the promise is given.Sufficiency and AdequacyConsideration must be sufficient but it need not be adequate. It means that consideration does not have to be of a value appropriate to the promise. The courts will not weigh up the relative values of each party’s promise or act, not will they provide a remedy for someone who makes a poor bargain.If a consideration is to be sufficient, it must be more than the contracting parties were legally obliged to do in any event.2. PAST CONSIDERATIONSubject to some exceptions, anything which has already been done when the promise is made is ‘past consideration’ and is not enforceable \\\Under s27 of Exchange Act 1882, past consideration is sufficient to create liability on a bill of exchange (汇票).\\\After six or in some cases twelve years, the right to sue for recovery of a debt become statute barred by the Limitation Act 1980. If, after that perio d, the debtor makes written acknowledgement of the creditor’s claim, the claim is again enforceable law.\\\When a request is made for a service, this request may imply a promise to pay for it. Where that person promises a specific reward after the service has been performed, that promise will be treated as fixing the amount to be paid (Lampleigh v Braithwait ) .3. PROMISSORY ESTOPPEL (允诺后不得否认的原则)•The doctrine applies when a person promises (without consideration) not to enforce in full their existing rights and intending that the promisee shall act on the promise by altering their position in reliance on it.•If the promisee does act on the promise, the promisor is estopped from withdrawing the promise.•In some circumstance, however, they may on giving reasonable notice of their intention, restore the original position for the feature.In other words, the doctrine may operate to suspend rights which may be enforced once again if reasonable notice has been given.The doctrine only applies to a promise freely given. It also only applies to a promise to waive existing rights and it is a ‘shield not a sword’, which means that the doctrine does not create new causes of action where none existed before high trees case The agreement of january 1940 cessed to operate early in 1945.the claim for full rent after the war was upheld.however,the 1940 agreement had estopped any claim for the period 1940 to 1945.Chapter 6 Terms1. TERMS AND REPRESENTATIONTermsContractual terms are statements which are incorporated into a contract. The parties are bound to observe and perform constractual terms and in the event of breach, the injured party’s remedies will depond on whether the term is a condition or a warranty.RepresentationA representation is a statement that induces a contract but does not become a term of the contract. The reason for distinguishing between them is that there are different remedies available depending on whether a term is borken or a representation turns out to be incorrect. In order to distinguish between the two, the courts will focus on when the statement was made, the importance of the statement in relation to the contract and whether the party making the statement had specialist knowledge on which the other party relied.2. TYPES OF TERMSConditionsA condition is a vital term of the contract which goes right to the heart of the contract. Breach of a condition allows the innocent party to treat the contract as discharged and sue for damages. Alternatively, a party may choose to affirm the contract, in which case they can still sue for damages for any loss, but must continue with their own obligations.In the leading case, it was held that failure by an opera singer to appear on the opening night of a series of performances amounted to breach of a condition and the producer had been entitled to treat the contract for the remaining performances as discharged.WarrantiesA warranty is a subsidiary term of the contract which is less fundamental. Breach of a warranty does not allow the innocent party to treat the contract as discharged, but a right to damages.If a party attempts to repudiate the contract following a breach of a warranty, this will be a wrongful repudiation. This would therefore make the party initially in breach open to a claim for breach of contract ( Bettini v Gye 1876)The rehearsal clause was subsidiary to the main purpose of the contract..Innominate termsIn the absence of any express provision describing the contractul term as a condition or a warranty (or any statutory provision which implies certain conditions and warranties), the court will interpret the intention of the parties at the time of the contract being made. The intention will be used to decide whether the broken term is a condition or a warranty Where the intention is not clear, the term is described as an innominate term and must be interpreted in the light of the actul effect of the breach. If the breach is to deprive the injured party of ‘substantially the whole benefit of the contract’, then the term will be treated as a condition. Otherwise, the term will be treated as a warranty.4. EXCLUSION CLAUSE (免责条款)An exclusion clause, or an exemption clause, can be defined as ‘ a clause in a contract which purports to exclude liability altogether or to restrict it by limiting damages or by imposing other onerous conditions’.As a general principle, the courts will not usually interfere where two parties negotiate a contract from a position of comparable bargaining strength. However, the law will seek to protect a weaker party The validity of exclusion clauses is governed by the common law, the Unfair Contract Terms Act 1977 and a number of other statutory regulations.Incorporation of exclusion clausesSignatureThe exclusion clauses may be incorporated into the contract by the signature of the other party on a document bearing the terms.NoticeWith regard to incorporation by notice, it shown that the person seeking to rely on the exclusion clause has taken reasonable steps to bring the existence of the clause to the attention of the other party at the time the contract was made. Only in limited circumstances will the courts allow the incorporation of a clause the contract has been made. Course of dealing•Where the parties deal frequently in transactions of a similar nature and on the same terms, the courts will hold that the exclusion clause has been incorporated into the latest agreement because of its being present in theprevious dealings, even if the claimant had never read it.•The position is effective where the previous dealings have not been on a consistent basis.Nature of the liability•The court will consider the nature of the liability which is being excluded when deciding whether a clause has been effectively incorporated.•If the terms are particularly unusual or wide, a more prominent notice may be necessary.•Therefore a notice excluding liability for injury in an automatic car park was not sufficiently displayed or referred to at the time the contract was made.Control by common lawThe exclusion clause must be communicated to the offeree before he accepts the contract: Olley v. Marlborough Court Ltd.If a term is included in a document, notice of the term must be given before completion and the document must be one which could be expected to contain terms: Chapleton v Barry UDC.Must be clearly incorporated into contract:o Generally, if a person signs a contract he will be bound (L'Estrange v. Graucob) unless there was a mistake or misrepresentation.o Oral assertions can override exclusion clauses making them ineffective: Curtis v. Chemical Cleaning Co.o A clause may be incorporated by a course of dealings: Hollier v Rambler Motors.Where a term is particularly unusual and onerous it should be highlighted. Failure to do so may mean that the clause is not incorporated.Wording must be sufficient to exclude the liability in question3. REMEDIES FOR BREACH OF CONTRACTSThe principal remedies for breach of contract are:•damages;•action for the price common law remedies•quantum meruit;•specific performance;•injunction; equitable remedies•Rescission.Measure of damagesDamages are intended to compensate the injured party for any financial loss suffered as a conseq uence of another party’s breach. The object is not to punish the party in breach, so the amount of damages can never be greater than the actual loss. Measurement of financial loss may be made with reference to the available market rule.Financial loss is usually based on the actual loss suffered, although some damages of a non-financial nature can be recoveredMitigation of loss (减轻损失)The injured party is under a duty to take all reasonable steps to mitigate their loss.Liquidated damages (违约赔偿)It is common for the parties to make provisions for possible breach. They state in advance the amount of damages that will be paid in the event of any breach.Action for the priceThis is subject to the proviso (限制性条款) that the property in the goods has passed to them unless the price has been agreed to be paid on a specific date.Quantum meruit (按照劳力价值，按合理价格支付)Quantum meruit occurs where one party has already performed part of their obligations and the other party then repudiates the contracts.Specific performance (对合同中的肯定性条款有强制执行的能力)Specific performance is an equitable remedy which requires the party in breach to complete their part of the contract. Specific performance will only occur where the common law remedy of damages is inadequate. It is most common in cases involving the sale of land, where the subject matter of the contract is unique. Specific performance will not be granted where the court cannot supervise its enforcement. Therefore it will not be available in respect of contracts of employment or personal serviceInjunction (对合同中的否定性条款有强制执行的能力)An injunction is an equitable remedy at the discretion of (任凭) the court.The court can require the defendant to observe terms in the contract which are in substance negative restraints.The court may award an injunction in case where specific performance would be refused. For example in a contract of personal service .An injunction will only be granted to enforce negative covenants within the agreement, and cannot be used to enforce positive obligationsRescission (撤销、废除)Recission is an equitable remedy which seeks to ensure that the parties should be restored to their position before the contract was made. The right to rescind(撤销) is lost where:the misled person affirms the contract after discovering the true facts\\\the parties can no longer be restored to their original positions\\\the rights of third parties would be prejudiced by recission\\\so much time has elapsed that allowing rescission would be inequitableLaw of EmploymentChapter 9 Employment1. EMPLOYED VS SELF-EMPLOYEDDefinitionEmployees are people who work under a contract of service. For example, a person working as a administrator for a large company. Those who work under a contract for services are independent contractors (self-employed). For example, a plumber whom you hire to do some work in your home.Why to distinguishIt is essential to distinguish the two categories clearly, each has different rules concerning the legal rights and obligations of the person concerned.•Employment protection. Employment law confers protection and benefits upon employees under a contract of service, for example regarding unfair dismissal and notice period. Such protection is notavailable to independent contractors.•Liability. Employors are generally vicariously(间接地) liable for tortious acts of employees, committed in the course of employment. Independent contractors are liable for their own actions.•Taxation. Employees pay tax and national insurance through the PAYE scheme via their employers.Independent contractors are taxed differently and must adminisiter it themselves.How to distinguishThe distinction between employees and independent contractors depends on many factors. The courts will primarily look at the reality of the situation rather than accept the form of the arrangement on face value .Initially, they will look at the relationship and the arrangement between the parties . Where the employee’s status is still unclear, series of test will be applied.The control testThe court will consider whether the employer has control over the way in which the employee performs their duties.Where it appears that the ‘employer’ may control the ‘employee’ s’ duties, then they will be treated as anemployee.However, with the changing working practice, many employees have a degree of skill which makes the relationship difficult to define.The integration testThe court will consider whether the employee is so skilled that they cannot be controlled in the performance of their duties. La ck of control indicates that an ‘employee’ is not integrated into the employer’s organisation, and istherefore not employed.In Cassidy v Ministry of Health, it was held that a skilled surgeon was the employee of the Ministry of Health. Although the Ministry could not possibly control the doctor in their medical work, it had selected them and integrated them into the organisation.The economic reality (multiple) testThe control and integration tests are important, but no longer decisive in determing whether a person is an employee.The economic reality test is a furture development and asks whether the employees is working on their own account.The economic reality test was held that there were three conditions supporting the existence of a contract ofemployment:o the employee agrees to provide his own work and skill in return for a wage,o the employee agrees, either expressly or impliedly, that he will be subject to a degree of control, exercisable by the employer,o the other provisions of the contract are consistent with its being a contract of employment.3. EMPLOYER’S DUTIESThe duties owed by an employer to their employee will be as set out expressly in the contract of employment and, in the absence of relevant express terms, as implied by common law and statute.The overriding(最主要的) duty of the employer at common law is a duty of mutual trust and confidence. Neither the employer nor the employee should damage such mutual respect.In addition, the common law implies several other terms into the contract of employment, all of which are fundamental to the relationship.Reasonable careFirst, the employer has a duty to take reasonable care for the safety of the workers.They must provide competent stuff, safe promises and safe equipment and a ‘safe system of work’.The employer could be liable in negligence if this is not done.Remuneration (酬劳）In rare circumstance that there is no agreement to remuneration, the rate of remuneration must bereasonable.However, statute largely governs the method and rate of payment.Provide workIn certain circumstances, the common law will imply a duty to provide work.Employees protected include those paid on a piecework or commission basis and those whose earning power and reputation is founded on active occupation, for example, actors and journalists.If there is no work available, the duty will not be breached as long as the employee continues to receive remuneration, unless the employee is skilled and needs relevant work in order to prevent the skill.4. EMPLOYEE’S DUTIE SAt common law, employees owe duties to their employer.Reasonable competence, skill and care\Obey lawful instructions\Account for all money and property\Faithful and personal service\Personal serviceChapter 10 DismissalSummary dismissal (dismissal without a notice) (may be fair or wrongful)Summary dismissal occurs where the employer dismisses the employee without notice. He may do this if the employee has committed a serious breach of contract and , if so, the employer incurs no liability.If, however, he has no sufficient justification, the employer is liable for breach of contract and the employee may claim a remedy for wrongful dismissal. Whether the employee’s conduct justifies summary dismissal will vary according to the circumstances of the case.2. CONSTRUCTIVE DISMISSAL (may be fair or unfair)Constructive dismissal occurs where the employer has committeed a serious breach of contract, despite the willingness to continue the employment, and the employee resigns because of it.No notice of termination is served on either party. In such cases, the employer is liable for breach of contract.Provided the breach is sufficiently serious, the employee may still make a claim for unfair dismissal(s.136 ERA)To establish the constructive dismissal, the employee must show that the employer has committeed a serious breach of contract, and they left because of the breach and they did not waive the breach.Examples of breaches of contract which have lead to claims of constructive dismissal include the following3. REDUNDANCYRedundancy is defined in s.139 of the Employment Rights Act 1996 as: dismissal attributable wholly or mainly to: •the employer has ceased, or intends to cease the business (or the local establishment of the business) in which the employee was employed•The requirements of that business to carry out work done by the employee have ceased or diminished.•In order to qualify for redundancy payments, an employee must have been continuously employed by the same employer or associated company for two years or more.•At the begining of redundancy proceedings, the employee must show that they have been dismissed.Once dismissal has been established, a presumption in favour of redundancy operates and it turns to the employer to show that redundancy was not the reason for the dismissal.Alternative employmentThe employer may choose to offer a redundant employee alternative employment. If the employee unreasonably refuses the offer, they lose their entitlement to a redundancy payment. Broadly speaking, the alernative employment must be in the same capacity, at the same place and on the same terms and conditions as the old employment. It should not be perceived as being lower in status ( Cambridge District Co-operative Society v Ruse 1993).Trial periodThe employee is entitled to a 4 week trial period in the alternative employment and if either party terminates the new contract during this trial period, it is treated as a case of redundancy at the expiry date of the old employment.If the employee accepts the new employment, their service is treated as continuing from the old employment.4. UNFAIR DISMISSALAn employee may have a claim for unfair dismissal if they have been continuously employed for one year or more and the dismissal has been made for an unfair reason. \\\It is for the employer to show that the dismissal was fair and reasonable.\\\To defeat a claim for unfair dismissal, the employer must show their main or sole reason for the dismissal was one of those listed in the 1996 Act or some other substantial reason which justifies dismissal. \\\The listed reasons are a lack of capabilities or qualifications of the employee, misconduct of the employee, redundancy, legal restrictions . Unfair grounds for dismissalPregnancy or other maternity-related grounds\\\A spent conviction (失效的判决）\\\Trade union membership or activities\\\Seeking to enforce rights relating to the national minimum wageEven if the employer proves an acceptable reason for dismissal, the employment tribunal may still decide that the dismissal was unfair if it considers on the basis of equity and the substantial merits of the case.。
