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法律案例阐述分析--美国Assignment代写范文

2017-01-06 来源: 51Due教员组 类别: 更多范文

美国Assignment代写范文:“法律案例阐述分析”,这篇论文主要描述的是法律制定的目的就是为了维护社会的稳定,捍卫人民权益的工具,学会利用法律来阐述和证明自己的观点,这才是法律学的精髓,本文列举了汤姆和杰瑞的合同纠纷,讲述了法律对于传统合同的约束力。

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The issue in the case is whether Jerry can enforce the promise under the contract to sue Tom. It depends on if the contract was established.

The legally binding contracts traditionally bear several essential components, which are offer and acceptance, consideration and intension to create legal relation. All of the above elements must be present.

Intention to create legal relation

Tom and Jerry are the best friends. “The general presumption is that there is no intention to create legal relation in friend situations.”  However, the presumption can be rebutted by looking at the parties’ intention and the seriousness of the consequences, Riches v. Hoben (1986) 1QdR 315. In the case, Tom claimed that he had considered this as a contract. Objectively assessed, oral promise plus the Tom’s favorite skates

Offer and acceptance

An offer is a definite promise to be bound on specific terms and it has to be definite, not unclear. One party promises to perform if the other party performs. An offer may be made orally, in writing or by conduct. In this case, Tom orally promised to take Jerry for a movie and a good dinner if Jerry did the assignment for him, and he claimed that he had considered this as a contract. It was held that it was an offer, but not invitation to treat, as there was a definite promise that Tom made. Tom was the offeror, and Jerry was the offeree. It refers to Carlill v. Carbolic Smoke Ball Co. (1893).

However, Jerry said that he did not want a movie or a dinner, but had “Tom’s favorite skates”.  “Where offeree introduced the variation to the terms of the offer, the acceptance is not unconditional and no agreement comes into existence.” Such variation made by Jerry amounts to a counter-offer. Jerry made a counter-offer which is a rejection of Tom’s offer. Therefore, there was no contract at that time.

On the other hand, Jerry destroyed the original offer, but introduced a new offer to Tom, in which Jerry offered to do Tom’s assignment for Tom’s favorite skates. It involved communication between two parties by face-to-face conversation. Tom shook his head and said that Jerry had helped him and so he would do so. In some cultures such as Indian culture, shaking head does not have the meaning of “agree”, but Tom made an oral statement that “Jerry help him and so he will do so”, while he shook his head. In the case of Butler Machine Tool Co v. Ex-Cell-O Corp [1979] 1 WLR 40), it was concluded that the buyer’s order was a counter offer and the sellers accepted this counter offer when they signed the tear-off slip on the buyer’s order form. Therefore, we can assume that Tom made acceptance of Jerry’s counter offer.

would indicate that the presumption ought to be set aside with the conclusion that the parties did intent to enter into legal relation.

Consideration

Moreover, consideration could be something which has economic value or performance of some services. Jerry’s promise to do the assignment for Tom is a good consideration for Tom’s promise to offer skates although Tom owes a duty to do the assignment by himself. Thus, there are the offer, acceptance and consideration, so there is a contract between Jerry and Tom. Jerry can enforce Tom’s promise.

The above mentioned explains the existence of an agreement, consideration and intention to create relations which can bring their contract into existence. As there is a legally binding contract between Jerry and Tom, Jerry can sue Tom for breached of the contract by refusing to offer Jerry his favorite skates after Jerry did the assignment him.

It is probably a binding contract between Jerry and Tom. Jerry can likely enforce the promise under the contract and sue Tom for breach of contract.

Question 2

Advise Moon as to her legal position:

The issue in this case is whether a valid contract comes to existence between Moon and Sun, so Moon can enforce the promise under the contract to sue Sun.

“Where the offeror indicates that acceptance of the offer must be made by a particular method only, the acceptance must be made by that particular method. However, the offeror must make it clear that no other method will be valid by using words like “acceptance must be made only by the offerors’ prescribed method.” In Sun’s letter, “If you do not telephone or write me a fax or email before 18 February……” the sentence Sun made might not clearly and definitely express whether there was any prescribed method that Moon must follow.  If there is not any method of acceptance that Moon must apply, by post would be considered as a valid way to communicate her acceptance.

Apart from the above mentioned, the general rule is that the same form of communication should be used in acceptance as is used for the offer. Moon’s posted reply seems appropriate as was also used by Sun who posted the offer letter.

In this case, only when the acceptance by post is valid to establish the contract, the postal rule could be applied.  “The acceptance is deemed to be complete when the properly stamped and addressed letter of acceptance is posted, and not when it is delivered to the offerors’ address, or received by them, or brought their notice, or read by them. The offeror is bound by the acceptance even though the letter of acceptance is delayed, never reaches him or her, or is lost.” We can see in Adams v. Lindsell (1818) 1 B & Ald 681. Thus, there would be a binding contract the moment the letter of acceptance was posted by the plaintiffs on 16 February.

In my opinion, Moon can likely not sue Sun for breach of contract due to no binding contract made between Moon and Sun. Referring to the case of Halwell Securities Ltd v. Hughes 1974; it possibly considers that Sun set the prescribed methods of acceptance Moon must be use, but Moon did not do what the agreement said she needed to do.

Advise Sun as to his legal position:

The issue in this case is whether a valid contract comes to existence between Moon and Sun, so Moon can enforce the promise under the contract to sue Sun.

“Where the offeror indicates that acceptance of the offer must be made by a particular method only, the acceptance must be made by that particular method. However, the offeror must make it clear that no other method will be valid by using words like “acceptance must be made only by the offerors’ prescribed method.” If it can be proved that Sun (offeror) clearly indicated that the acceptance of the offer must be made by telephone, fax and e-mail only, and the Moon (offeree) did not follow that and replied acceptance by post,  it would take that the acceptance made by Moon is not valid to establish a binding contract. We can refer to the case of Halwell Securities Ltd v. Hughes 1974.  “It was held that the option had not been validly exercised. The plaintiffs were unable to do what the agreement said they needed to do. It was also stated that there was no room for the application of the postal rule since the option agreement expressly stipulated what had to be done to exercise the option.” Thus, postal rule and the general rule may probably not be extended to apply to the case, as it involved the prescribed methods of acceptance, which are the particular ways  

The prescribed methods of acceptance set by Sun which was telephone, fax and email. Moon made acceptance by post which could make the reply later than by telephone, by fax and by email. By post seems inappropriate that it was not effective until the letter was received by Sun. It is emphasized in Tinn v. Hoffman & Co that on the speed of communicating acceptance is rather than on the mean. Thus, Moon’s posted reply seems inappropriate.

In my opinion, Moon can likely not sue Sun for breach of contract, as there is no binding contract; Moon was unable to do what the agreement said she needed to do.

Qustion3

Identify the issue

The issue of this case is how to interpret the word ‘handbags’. If it is interpreted as handbags including the suitcases then the insurance company has no liability to the stolen suitcases, if the word is interpreted as the handbags exclude the suitcases then the insurance company has the liability for the stolen suitcases.

Define the law and applies to analysis

In according to the Contra Proferentem Rule, the exemption clauses are strictly interpreted against the party who rely on them if the words used are ambiguous. (Houghton  v.  Trafalgar Insurance)

The court would look at the bargaining power of the parties when determine the effects of the exemption clause. Generally, the court would interpret the exemption clause against the party with the domination position.

Moreover, when the exemption clauses are contained in the pre-printed standard forms as in bulk, the court is likely to interpret the clauses against the party who made the contact.

In this case, the insurance company is the party who relies on the exemption clauses; and the insurance company is obviously in the dominating position because the other party Lucy is only a single person but the insurance company is a whole organization.

Furthermore, the contract is in a preprinted standard form. Therefore according to the items mentioned above, the court is likely to interpret the word ‘handbags’ against the insurance company which means the word ‘handbags’ should included ‘suitcase’. Hence the company is liable for Lucy’s stolen suitcases.

Conclusion

Because of the contra proferentem rule, the court is likely to interpret the ambiguous word ‘handbags’ as the meaning of hands including suitcases.

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