Английский язык. Профессиональная лексика для юриста. Учебное пособие

conduct of the parties, as opposed to the written instrument, manifests sufficient certainty as to the terms of the agreement.

An enforceable agreement may be manifested in either written or oral words (an express contract) or by conduct or some combination of conduct and words (an implied contract). There are exceptions to this general rule. In some jurisdictions, certain special types of contracts must be in writing or they are not valid (e.g. the sale of land).

In addition to the elements of a contract it should also correspond to the following items: a party must have capacity to contract; the purpose of the contract must be lawful; the form of the contract must be legal; the parties must intend to create a legal relationship; and the parties must consent. Thus, to be legally entitled to contract, a person must have full legal capacity. It is attained at the age of 18 by persons of sound mind. Capacity also includes appropriate status for making contracts: for example, some contracts can only be signed by the directors of the company. And also the terms to which the parties are agreeing must be certain, they should not be unduly vague or incomplete.

Any contract shouldn’t have vitiating factors which make a contract invalid. Thus, in a contractual dispute, certain defences to the formation of a contract may permit a party to escape his/her obligations under the contract. For example, illegality of the subject matter, fraud in the inducement, duress, undue influence, incapacity, including mental incompetence and infancy/minority, frustration of purpose and the lack of legal capacity to contract all enable a party to attack the validity of contract.

Special rules exist for interpreting contracts in which one contractor made a mistake or was tricked or pressured into making an agreement. If one party knows that the other party made a mistake as to the terms of the offer and fails to bring it to his notice, he will not be able to enforce the contract according to his version of its terms. If one party had misrepresented the facts to the other, there would be ‘no meeting of the minds’ between the parties, and the court would not normally uphold this agreement. Equally voidable are contracts entered into under duress. Duress can take the form of physical threat to the person or an economic one, where a threat is made to break an existing contract or to commit a tort and the injured party has no practical alternative to agreeing to the terms proposed by the person making the threat.

When a party does not do what is required to do under a contract, that party is said to have breached the contract. The other party may file a lawsuit against the breaching party for breach of

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contract. The non-breaching party (sometimes called the injured party) may try to get a court to award damages for the breach. Damages refers to money which the court orders the breaching party in compensation. Other remedies include specific performance, where a court orders the breaching party to perform a contract (that is, to do what it promised to do).

In some cases, individuals/companies who are not a party to a particular contract may nevertheless have enforceable rights under the contract. For example, contracts made for the benefit of a third party (third-party beneficiary contracts) may be enforceable by the third party. An original party to a contract may also subsequently transfer his rights/duties under the contract to a third party by way of assignment of rights or delegation of duties. This third party is called the assignee in an assignment of rights and the delegate in a delegation of duties.

Vocabulary Practice

Exercise 1. Read the words. Mind the stress.

Exercise 2. Complete the table with the derivatives.

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Exercise 3. Give nouns derived from the following verbs.

Exercise 4. Add nouns to the following verbs to form verb-noun collocations:

to accept, to award, to breach, to enforce, to file, to form, to make, to negotiate, to perform, to reject.

Exercise 5. Choose the correct verb.

1.An individual or a business may enter / start / join into a contract.

2.Anyone who is not a party to the contract is considered a third party and cannot be obligated / bound / forced to do anything required under the contact.

3.The making of contract requires a mutual covenant / agreement / understanding.

4.My client has requested me to make / fi le / award a lawsuit against your breach of contract.

5.You accepted / awarded / admitted the offer my client made you.

6.When you signed the contract, legal rights were called / claimed / created which are enforceable under the law.

7.A valid offer must be communicated, so that the offeree may acknowledge / recognize / accept or reject it.

8.Since you have not carried out your obligations under the contract, you have clearly assigned / rejected / breached the contract.

9.My client intends to claim / accept / enforce damages for all of the losses incurred as a result of the breach.

10.Damages are awarded / given / adjudged to a party for any loss that the party has suffered as a result of a breach of contract.

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Exercise 6. Match the words on the left with the ones on the right to form phrases.

Exercise 7. Match the English words with their Russian equivalents.

Exercise 8. Complete the sentences below using the correct form of the words in the box.

1.Minors are the mentally incompetent lack the legal capacity to __contracts.

2.Courts generally rule that if the parties have a meeting of the minds and act as though there was a formal, written and __contract, then a contract exists.

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3.The lawsuit claimed that the defendant __ a confidentiality contract by attempting to sell trade secrets as his own inventions.

4.“Evergreen clauses” are those clauses which cause automatic renewal unless the contract __.

5.While fixed-term contracts involve an agreement that the job will last for a specified period of time, provisions are often concluded to enable the contract __ if desired.

6.The committee shall have no authority to change or otherwise __ contract language.

7.Usually, contract __ occurs when an offer is accepted.

8.A new offer made by one party to another party is called a __.

9.The price and the subject matter of a contract are the essential __ of a contract.

10.A contract which is not in written form but has been expressed in spoken words is called an __.

11.Under a contract, a party has __ (that is, certain things it has to do).

12.A court can award __ to the non-preaching party.

Exercise 9. Сomplete the text using the words from the box.

A contract is an agreement that creates a binding __ upon the parties. The essentials of a contract are as follows: mutual __; a legal __, which in most instances need to be financial; parties who have legal __to make a contract; absence of __or duress; and a subject matter that is not __or against public policy.

In general, contracts may be either __ or written. Certain types of contracts, however, in order to be enforceable, must be written and __. These include contracts involving the sale and transfer of __.

In case of a __ of contract, the injured party may go to court to sue for financial compensation (or __), or for rescission, for injunction, or for specific performance if financial compensation would not compensate for the breach. Specific __ of a contract is the right by one contracting party to perform the contract according to the precise __ agreed.

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Exercise 10. Match the types of contract clauses (1–10) with

their definitions (a–j).

receive if the other party breaches a part of the contract

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Language Development

Exercise 1. Choose the correct alternative.

1.Which of the following is not needed for a legally binding contract to be in force:

A.written contract;

B.intention to create legal relations;

C.consideration;

D.offer and acceptance.

2.An invitation to treat is:

A.an invitation to the other party to make an offer;

B.a name for an offer made between two individuals;

C.another name for acceptance;

D.another name for an offer.

3.When an offeree agrees to be bound by all the terms of an offer, which one of the following is not applicable:

A.it must be in writing;

B.it must be a mirror image of the offer;

C.it must be firm;

D.it must be communicated to the offeror.

4.A unilateral contract can be defined as:

A.an offer made of a promise in return for an act;

B.an offer made of a promise in return for a promise;

C.an offer made of an act in return for a promise;

D.an offer made of an act in return for an act.

5.Which of the following is a correct statement:

A.consideration needs to be both adequate and sufficient;

B.consideration needs to be adequate, but not sufficient;

C.consideration needs to be neither adequate nor sufficient;

D.consideration needs to be sufficient, but not adequate.

Exercise 2. Mark the statements which are true. Prove your idea.

1.In all legal systems, parties must give something of value so that a contract can be formed.

2.An offer must be met with a counter offer before a contract is agreed.

3.Oral contracts are not always valid.

4.Oral contracts cannot be enforced through the courts.

5.If in breach, the court will always force the party to perform the contract.

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6.Assignment occurs when one party gives its contractual rights to another party.

7.If one party knows that the other party has misunderstood the terms of the offer, he has an obligation to inform him about mistake.

8.Courts are not concerned with the adequacy of consideration.

9.The consideration provided by one party need not to be equal in value as the consideration provided by the other party.

10.When a party does not do what it has promised to do under a contract, it can be sued for breach of contract.

Exercise 3. a) Match these defences to contract formation (1–4) with their definitions (a–d).

relationship that leads the party to enter into the transaction

b) With a partner, act out the roles below based on exercise 3. Then, switch roles.

Student A: You are a legal assistant. Ask Student B about: contract-related problems

validity of contract

if contract is enforceable/unenforceable

Student B: You are having a contractual problem. Talk to Student A about it.

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Exercise 4. Read the examples and say what essential elements of a contract are missing in these situations. Prove your point.

1.You are in a shop and want to buy something on display. You offer the shopkeeper the money but he won’t sell.

2.A small country hotel advertises cheap weekends in November. A school teacher writes asking for the last weekend in November and, assuming that a booking has been made, arrives at the hotel to find it fully booked.

3.You buy a 12-year-old’s bike for $30.

4.A man sells his nearly new BMW car for $1,000 because the buyer is pointing a gun at his head.

Exercise 5. a) Study the information about contract negotiations.

Contract negotiation involves the process of discussing and composing on contract terms in order to reach the final, approved draft of a contract. Negotiating can be carried out face to face and / or in writing, with the use of both contract templates and term sheets.

While a great deal of negotiating process takes place today via e-mail, face-to-face negotiating continues to play an important role. Undoubtedly, the ability to negotiate well depends to a large extent on experience. However, negotiating skills can be improved by learning about how negotiations are generally conducted and which techniques are employed by good negotiators.

b) Read about the seminar held at a law firm for some of the firm’s recently hired young lawyers and tick the topics that the speaker covers.

•preparing for a negotiation;

•phrases and expressions for negotiators;

•using agreement templates and term sheets;

•classic ‘tricks’ used by negotiators;

•general negotiating techniques;

•dealing with objections from the other side;

•different types of agreements usually encountered;

•role-plays.

Good morning. I’m very happy to have been invited here today to hold this talk on effective contract negotiations. First of all I’d like to move on to the topic of using agreement templates and term sheets. It’s common to start out with an existing contract template, which gives you a kind of plan of the things that are usually in-

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cluded in such an agreement. It’s important to realise that negotiating with a contract template means that it’s necessary to review the terms and conditions it contains carefully. Please note that you have to consider what is not in the agreement but should be, that is, what’s missing and should be added. This is really just as important as carefully reviewing the language in the agreement. Here, I want to stress that it’d be wise to consult with a senior lawyer, preferably someone who has experience negotiating agreements of the kind that you are negotiating.

When using a term sheet as the basis of negotiations, it’s imperative to keep good notes of all discussions or emails regarding the items on the sheet. Term sheets are usually used by lawyers to transfer the terms that have been agreed into an official agreement, so it’s crucial that the information on this sheet is precisely what’s been agreed on by all parties. Sometimes a lawyer will incorporate items from a term sheet onto an agreement template. In such a case, he should be careful not to include language originally in the template that isn’t appropriate.

Ok, now I’d like to turn to some general negotiating techniques. It’s good practice to separate the issues at stake into different categories in your mind: things you can’t possibly accept, major points, minor points and things you can easily live without. Then you can make trades with the other side, one item for another. This is also known as ‘horse-trading’. It can go like this: ‘I’ll change this provision to what you want if you agree to add a provision I want’. When it comes to discussing numbers, if possible let the other side suggest the first number. My advice is to know the number you really want to end up with and try to suggest a starting number that’ll force the other side to respond with a number that, when combined with your starting number, will average out to a number you’d be happy to accept. So what you do is propose meeting the other party in the middle by averaging the two numbers out.

My point has to do with overcoming some of the objections you’ll commonly hear in a negotiation. Sometimes the other party will object to removing a clause that you don’t want by saying something like: ‘Don’t worry, we won’t hold you to that item, so we’ll just leave it in’. In such a case, you should insist that the item’s taken out. The best argument in this situation is to say that if they’re not going to hold you to it, then why not just take it out of the agreement. It’s important to be aware that people involved in making the agreement could all one day lose their jobs or take employment with another company, and so their promise not to hold you to something

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