Formation-of-A-Contract-中文翻译.docx

FORMATION OF A CONTRACT合同的形成1. A contract is an agreement giving rise to obligations which are enforced or recognised by law.合同指的是阐述缔约各方应履行的义务的约定，其内容已得到法律认可，可强制执行。2. In common law, there are 3 basic essentials to the creation of a contract: (i) agreement; (ii) contractual intention; and (iii) consideration.根据普通法的规定，合同的创建需要满足三大基本要素：（1）缔约方约定；（2）订约意图；（3）对价。3. The first requisite of a contract is that the parties should have reached agreement. Generally speaking, an agreement is reached when one party makes an offer, which is accepted by another party. In deciding whether the parties have reached agreement, the courts will apply an objective test.合同的第一个必备要素是缔约方已达成约定。通常而言，当一方提出要约而另一方接受该要约时就视为已达成了约定。为确定缔约方是否已达成约定，法院会组织一次客观测试。A. OFFER要约4. An offer is an expression of willingness to contract on specified terms, made with the intention that it is to be binding once accepted by the person to whom it is addressed. 1 There must be an objective manifestation of intent by the offeror to be bound by the offer if accepted by the other party. Therefore, the offer or will be bound if his words or conduct are such as to induce a reasonable third party observer to believe that he intends to be bound, even if in fact he has no such intention. This was held to be the case where a university made an offer of a place to an intending student as a result of a clerical error.2要约表达了达成特定条款的意愿，且具备这样的意图：一旦受要约人接受了该要约，将对要约人产生法定约束效力。1要约人意图的客观表现在于，一旦另一方接受该要约，要约人将受到该要约函的约束。因此，若要约人的言语或行为让理智的第三方旁观者相信其将受到合同提议的约束，即便要约人并无此类意图，该要约仍对其有约束效力。举个例子，由于笔误原因，某个大学错误地向某个对该校有兴趣的学生提供了一份录取通知书，此时该录取通知书是有法律效力的。25. An offer can be addressed to a single person, to a specified group of persons, or to the world at large. An example of the latter would be a reward poster for the return of a lost pet.要约函的对象为单个人士，或特定群体人士或社会所有人士，比如主人张贴悬赏通告以找回丢失的宠物时，悬赏要约就是针对社会所有人士的。6. An offer may be made expressly (by words) or by conduct.要约可通过口头明确表达出来，或者用行为表达。7. An offer must be distinguished from an invitation to treat, by which a person does not make an offer but invites another party to do so. Whether a statement is an offer or an invitation to treat depends primarily on the intention with which it is made. An invitation to treat is not made with the intention that it is to be binding as soon as the person to whom it is addressed communicates his assent to its terms. 要约应与邀约区分开来。在邀约中，邀请方并未提供一份具有约束效力的要约而是邀请另一方这么做。要约和邀约的区别主要在于其意图。邀约并不具备这样的意图：只要接收方同意邀约中的条款的话，该邀约将对邀请方产生法定约束效力。B. ACCEPTANCE受约8. An acceptance is a final and unqualified expression of assent to the terms of an offer. Again, there must be an objective manifestation, by the recipient of the offer, of an intention to be bound by its terms. An offer must be accepted in accordance with its precise terms if it is to form an agreement. It must exactly match the offer and ALL terms must be accepted.受约指的是受要约人最终完全同意该要约的所述条款。因此，受要约人意图的客观表现在于：其打算接受相关条款的约束。要构成约定，受要约人需要接受要约的具体条款。必须完全同意该要约，且必须接受其所有条款，才能构成约定。9. An offer may be accepted by conduct (for example, an offer to buy goods can be accepted by sending them to the offeror).受要约人可用行动表明其接受要约（例如，若打算接受货物采购要约的话，受要约人可直接向要约人发货）。10. Acceptance has no legal effect until it is communicated to the offeror (because it could cause hardship to the offeror to be bound without knowing that his offer had been accepted). The general rule is that a postal acceptance takes effect when the letter of acceptance is posted5 (even if the letter may be lost, delayed or destroyed6). However, the postal rule will not apply if it is excluded by the express terms of the offer. An offer which requires acceptance to be communicated in a specified way can generally be accepted only in that way. If acceptance occurs via an instantaneous medium such as email, it will take effect at the time and place of receipt. Note that an offeror cannot stipulate that the offerees silence amounts to acceptance.接受要约本身并不会产生法定效力，只有当受要约人告知要约人其将接受要约后，接受要约才会产生法定约束效力（原因是：如果要约人不知道其要约已被接受的话，将很难受到该要约的约束）。因此，普遍的做法是，当受要约人为接受函贴上邮政邮票时5，将视作受要约人已接受该要约（即使该函件后来遭到遗失、递送延误或完全被破坏6）。但是，若要约明确拒绝采取邮寄方式时，则该规则不适用。若要约规定接收函必须以特定方式递送时，将视作只有通过该方式递送时接收函才对要约人产生约束效力。若接收函是通过邮件等即时通讯传达的，其其将在要约人收到邮件的时间和地点生效。应注意的是，要约人不得认为受要约人的沉默等同于接受提议。11. A communication fails to take effect as an acceptance where it attempts to vary the terms of an offer. In such cases it is a counter-offer, which the original offeror can either accept or reject. For example, where the offeror offers to trade on its standard terms and the offeree purports to accept, but on its own standard terms, that represents a counter-offer. Making a counteroffer amounts to a rejection of the original offer which cannot subsequently be restored or accepted (unless the parties agree). It is important to distinguish a counter-offer from a mere request for further information regarding the original offer.若接受函试图改变要约的条款，则视作该接收函无法生效。此时称为“反要约”，最初的要约人可选择接受或拒绝反要约。例如，当要约人提出按照标准条款交易且受要约人同意按照标准条款交易，但遵循的是其自己的标准条款，此时应视作反要约。反要约等同于拒绝原来的要约，这一过程是不可逆的，除非合同各方一致同意。重要的是要学会区分反要约和只要求提供进一步信息的请求函。12. An offer may be revoked at any time before its acceptance, however the revocation must be communicated to the offeree. Although revocation need not be communicated by the offeror personally (it can be made by a reliable third party), if it is not communicated, the revocation is ineffective.在被受要约人接受之前，要约人可随时撤回要约，但应将撤回消息及时传达给受要约人。尽管撤回消息不需要传达给要约人本人（可靠的第三方也可以这么做），但若没有传达到的话，则视作撤回无效。13. Once an offer has been accepted, the parties have an agreement. That is the basis for a contract, but is not sufficient in itself to create legal obligations.一旦接受了要约，各方将达成了一个约定。这就是合同订立的必备条件之一，但仅达成约定本身是无法构成法定义务的。In common law, a promise is not, as a general rule, binding as a contract unless it is supported by consideration (or it is made as a deed). Consideration is something of value which is given for a promise and is required in order to make the promise enforceable as a contract. This is traditionally either some detriment to the promisee (in that he may give value) and/or some benefit to the promisor (in that he may receive value). For example, payment by a buyer is consideration for the sellers promise to deliver goods, and delivery of goods is consideration for the buyers promise to pay. It follows that an informal gratuitous promise does not amount to a contract.根据普通法的规定，允诺不如合同那么有约束力，除非其有对价支撑（或除非已达成契约）。对价指的是“有价值的东西”，是为了允诺而付出的东西，对价是必需的，只有这样才能使允诺跟合同一样可强制执行。过去的做法是，受约人要受点损失（受约人提供对价），而立约人则获得点好处（立约人接受对价）。例如，买家付款是卖家承诺发货的对价，而发货则是买方承诺付款的对价。非正式的无对价允诺不能构成合同。Consideration must be sufficient, but need not be adequate对价只需有偿，无需等价Although a promise has no contractual force unless some value has been given for it, consideration need not be adequate. Courts do not, in general ask whether adequate value has been given (in the sense of there being any economic equivalence between the value of the consideration given and the value of any goods or services received). This is because they do not normally interfere with the bargain made between the parties. Accordingly, nominal consideration is sufficient.尽管允诺只有在获得了一定对价后才具有合同效力，但对价只需有偿无需等价。法院一般不会问是否立约人是否已获得等价对价（即，所付出的对价价值和所收到的货物或服务的价值从经济角度而言是等同的）。这是因为法院一般不会干扰缔约方之间的议价。因此，对价只需有偿就够了。Consideration must not be from the past先前构成的对价不可用作后来的对价The consideration for a promise must be given in return for the promise. 提供对价是为了获得允诺。Consideration must move from the promise受约方提供对价The promisee must provide the consideration. Tradditionally, a person to whom a promise was made can enforce it only if he himself provided the consideration for it. He has no such right if the consideration moved from a third party. For example, if A promises B to pay 10,000 to B if C will paint As house and C does so, B cannot enforce As promise (unless B had procured or undertaken to procure C to do the work). However, where the conditions of the Contracts (Rights of Third Parties) Act 1999 are met, a third party may be able to enforce rights created in his favour by a contract which he was not a party to, and the courts are also adopting a more flexible position under the common law here.受约人需提供对价。过去的做法是，当且只当受约人为承诺付出了对价，才可要求强制执行该承诺。如果该对价是由第三方提供的话，受约人则无权要求强制执行该承诺。举个例子，若A承诺当C完成A房子的油漆工作时A将向B支付10000英镑，当C完成油漆工作后，B无法要求A兑现承诺（除非是B要求C完成这项工作的）。但是，当1999年合同法案的条件得到满足时，第三方可要求兑现承诺，前提是第三方需为合同的受益人（尽管它并不是该合同的缔约人），根据普通法的规定，此时法院也可采取更为灵活的做法。While consideration must move from the promisee, it need not move to the promisor. First, consideration may be satisfied where the promisee suffers some detriment at the promisors request but confers no corresponding benefit on the promisor. For example, the promise to give up tenancy of a flat may be adequate consideration even though no direct benefit results to the promisor. Secondly, consideration may move from the promisee without moving to the promisor where the promisee, at the promisors request, confers a benefit on a third party. In situations where goods are bought with a credit card, the issuer makes a promise to the supplier that s/he will be paid. The supplier provides consideration for this by providing goods to the customer.当受约人必须提供对价时，不一定需要把对价提供给立约人。首先，在立约人的要求下，受约人会遭受的一定损失但无需将相应好处转达给立约人，此种情况也是可以接受的。例如，放弃公寓的租用权也可视作等价对价，即便立约人此时并没有享受到直接好处。其次，对价可由受约人提供，但不一定流向立约人，此时受约人可能在立约人的要求下将好处提供给第三方。用信用卡购物时，开卡行就向供应商做出了付款的承诺。供应商通过向客户供货而提供有效的对价。