Английский язык для юристов. Предпринимательское право
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Exercise 5. Make up your own dialog on the case:
In Hanna v. Perkins, the buyer tendered a check with the notation «in full for labor and material to date.» The seller indorsed the check «Deposited under Protest» and deposited it. Seller sued for the balance of the contract price and buyer moved for summary judgment on the ground of accord and satisfaction. The New York court held for the seller and said that the defendant failed to allege the existence of an honest dispute about the amount due and thus there was no accord and satisfaction. The court held:
If it were not that this court finds that triable issues of fact are present, this court would deny the motion by holding this particular section of the code would seem to favor plaintiff's overriding endorsement of «Deposited under protest» as a reservation of his right to collect payment of the balance.
Exercise 6. Resume in industry buzz:
Consideration (each party makes 1 consideratn supported prom.)
1. 3 Tests for Consideration:
a. Prom. must induce current perf. in exchange (bargained for exchange).
b. Detriment from Promisor (offering detriment).
c. Promise binding, not illusory (mutuality of the prom.).
2. Promise Induced for Current Perf. in Exchange (giving $ or conduct):
a. Promises based on moral feelings FAIL.
b. Promises based on past acts & don't ask anything currently in exchange FAIL, EXCEPT:
(1) debt barred by technical defense, new written promise to revive enforceable (amt stated up to debt).
(2) Promisor requested act & promisee perf. w/ expectation of paymt, most enforce payment.
3. Detriment From Promisor (detriment to Promisee) Doing something promisor not otherwise required to do or NOT doing something promisor has rt or good faith belief had rt to do (can be a legal disadv. – not smoking):
a. Signif. MIN says if no detriment from promisor look for benefit to promisee.
b. NOT a detriment if Promisor had PRE-EXISTING duty to do it.
EXCEPT:
(1) unforeseen difficulty so severe could walk away but promise to do anyway.
(2) Good faith exception to disputed duties (misunderstand & new prom. to compromise; bona fide good faith dispute).
4. Binding, Not Illusory Promise: can't have unrestricted or total discretion on whether to perform (mutuality of obligation):
a. NOTE: Requirement & Output promises look illusory but not b/c Doe imposes reas. quantity requirement, nor are satisfaction conditions b/ c must be SUBJECTIVE good faith dissatisfaction.
5. Consideration Substitutes (MAKE SURE PROMISE DOESN'T ALREADY HAVE CONSIDERATION FIRST!):
a. Code Consideration Substitutes
– > Merchant's firm offer to keep open enforced up to 3 mos. unless consideration then for time stated.
– > For CODE, don't need consideration for modificatn IF MADE IN GOOD FAITH.
b. Common Law Consideration Substitutes:
(1) MIN accept Ks under seal w/o consideration, or
(2) Prom. Estoppel: if promisee detrimentally, reas. & foreseeably relies on promise, it's enforceable though no good consideration (buy car based on prom. to pay when your thumb smashed).
– > Make sure not good consideration 1st b/4 you apply these
Unit 7
Legality
Действительность договора
Договор действителен, когда в нем отражены все существенные условия, предусмотренные законом, и условия на которых настаивает сторона договора. Сделка может быть признана судом недействительной, например, если она не соответствует закону или иным правовым актам, либо совершена с целью, заведомо противной основам правопорядка или нравственности (глава 9 ГК РФ).
– conspiracy – сговор (о совершении преступления)
– exculpatory agreement – оправдательное, оправдывающее соглашение
– in pari delicto – равная вина
– local option – право жителей округа контролировать или запрещать
– public policy – публичный порядок
– restraint of trade – ограничение свободы торговли
– usury – ростовщичество
An agreement may involve a valid offer, an effective acceptance, mutual assent, competent parties, and valid consideration and still be void because of illegality. Parties cannot be allowed to enforce agreements that are contrary to the law. The most obvious type of illegal contract is one in which the parties agree to perform some unlawful activity.
Some activities that are neither crimes nor torts have been made illegal by specific statutory enactments. Chief among these activities are usurious agreements, wagering agreements, unlicensed agreements, unconscionable agreements.
The illegal practice of charging more than the amount of interest allowed by law is called usury. To protect borrowers from excessive interest charges, jurisdictions have passed laws that specify the rate of interest that may be charged in lending money.
Any agreement or promise concerning gambling or a wager is invalid and may not be enforced. States make exceptions when bets are placed in accordance with laws that permit horse racing, lotteries, church-related or charitable games of bingo, and gambling casinos regulated by government authority.
Certain businesses and professions must be licensed before they are allowed to operate legally. One reason for requiring a license is to provide a source of revenue, part of which is used to supervise the business or profession being licensed. Another objective of licensing is to provide supervision and regulation of businesses and professions that might inflict harm on the public if they were allowed to operate without such controls. In this category are physicians, nurses, dentists, attorneys, engineers, architects, and others in public service who must be closely supervised for the protection of the public. Courts distinguish between a license for revenue and a license for protection of the public. If a license is required simply to raise revenue, the lack of a license will not necessarily void a contract. In contrast, if a licensing requirement is designed to protect the public, it is likely that unlicensed people will not be able to enforce their contracts.