Практический курс английского языка = Practical Course of English for Students of Economics. Учебное пособие для студентов экономических специальносте

The second type of implied contract consists of contracts implied in law, referred to as quasi-contracts. Under this theory, the court will construct a contract (even though one did not exist) to avoid unjust enrich- ment—an unfair windfall to a party. Generally, three elements must exist before the court will construct a contract without contractual assent:

•A benefit conferred on the defendant.

•Knowledge or appreciation of the benefit.

•Circumstances where it would be inequitable to permit the defendant to retain the benefit without paying for it.

If a debtor overpays a creditor $5,000, the debtor can force the creditor to return that amount by suing under quasi-contract. It would be an unjust enrichment to allow the creditor to keep the $5,000. Note that quasi-contract is not an answer to every situation in which no contract exists. Over the years, courts have come to apply quasi-contract in a fairly limited number of cases based on unjust enrichment.

Another classification of contracts concerns those that are unilateral and those that are bilateral. A unilateral contract involves a present act given return for a promise of future performance. Promise to pay $50 for ride to Florida during spring break illustrates the unilateral contract. An example is catching a bank robber in return for the promise of reward. In bilateral contracts, each party makes a promise to perform the other: Smith promises to deliver a deed to the land on October 31. Jones promises to pay Smith $50,000 for the land on that date. When it is unclear whether the parties to an agreement intend a unilateral or bilateral contract, courts usually presume that the contract is bilateral.

An executory contract is one the contracting parties have not yet performed. An executed contract is one the parties have performed.

Void contracts are really not contracts at all. They are agreements that lack an essential contractual element. Often this element is legality of purpose. For example, in states where gambling is illegal, a bet on a football, game is void. This usually means that a court will not enforce the betting agreement. The opposite of a void contract is a valid one, which contains all the proper elements of a contract.

A voidable contract binds one of the parties to an agreement but gives the other party the option of withdrawing from it. Contracts based on fraud or misrepresentation are two important examples of voidable contracts. Fraud involves an intentional misstatement of a material (important) fact that induces one to rely justifiably to his or her injury. Intentionally calling a zircon a diamond and persuading someone to purchase it on that basis is a fraud. Sometimes failures to disclose a material fact can also be a fraud, as when a landowner sells a buyer land knowing

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that the buyer wishes to build a home on it and does not disclose that the land is underwater during the rainy season. The defrauded party can withdraw from the contract. Misrepresentation is simply a misstatemet without intent to mislead. However, a contract entered into through misrepresentation is still voidable by the innocent party.

Other examples of voidable contracts are those induced by duress or undue influence. Duress means force or threat of force. The force may be physical or, in some instances, economic. Undue influence occurs when one is taken advantage of unfairly through a contract by a party who misuses a position of relationship or legal confidence. Contracts voidable because of undue influence often arise when persons weakened by age or illness are persuaded to enter into a disadvantageous contract by a family member or other person.

Another way of classifying contracts is to distinguish between formal and informal ones. This distinction is largely a matter of historical importance. There are three types of formal contracts. The contract under seal is the least significant today. When parties entered into a solemn contract for which they expected performance, they would seal the contract with a signet of heated wax. Courts were prone to enforce contracts entered into with such formality. Today, contracts under seal are little more than an historical note. A second type of formal contract is the recognizance, a bond binding a person to do an act. An example of a recognizance would be an agreement before a court to pay a sum of money unless the recognizor, the person signing the recognizance, appeared in court on a fixed date. Finally, negotiable instruments are considered formal contracts. The most common form of negotiable instrument is a draft drawn on a bank, commonly known as a check. All contracts other than those under seal, recognizances, and negotiable instruments are informal contracts. Today, informal contracts are as enforceable as formal contracts if they meet the requirements.

1.Where do many contracts arise from?

2.What classifications of contracts can you name?

3.What contracts are called express contracts?

4.Differentiate between implied in fact and implied in law contracts.

5.Explain why void contracts are not contracts at all?

6.What contract is the opposite of a void contract?

7.What does duress mean?

8.When does undue influence occur?

9.What is specific about a voidable contract?

10.What three types of formal contracts can you name?

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Text 7

Read the text. Draw the tree-diagram of the text. Retell the text according to your treediagram.

Promulgation and Enforcement of Principles of Commercial Law

There are four basic instruments for developing and promulgating principles of commercial law external to the contract itself: (1) treaties,

(2) statutes, (3) court decisions (and occasionally decisions by arbitral bodies) and (4) government regulations. Most International scholars also believe that legal principles can emerge from pronouncements of international organizations such as the United Nations and through the growth of international custom; but in most instances, these latter sources have less to do with actual day-to-day commercial arrangements than the four basic sources first enumerated.

Treaties. Treaties are documents that control relationships between nations. They may be negotiated and executed between two countries (bilateral treaties) or among a number of countries (multilateral treaties). Conceptually, they are devices by which each country voluntarily surrenders some sovereignty in order to enter into the agreement. In other words, there is no power currently in existence (other than perhaps victory in war) that can compel a country to enter into a treaty, but once a country enters into the treaty, it generally becomes bound to the terms of that treaty. There are, of course, occasional problems of enforcement of treaty obligations. The International Court of Justice at the Hague (sometimes referred to as the World Court) is viewed as an appropriate body to adjudicate disagreements under a treaty, but some countries consider themselves free to ignore the court’s jurisdiction in certain circumstances.

There are three steps in implementing a treaty. First, the terms of the treaty are negotiated and the participating countries prepare a final draft. Second, the final version is signed by the participating countries as a signal that they approve the final version of the negotiated document. This does not mean, however, that the treaty becomes immediately enforceable. Third, the treaty is ratified by each country’s government. The process of ratification differs from country to country. Some countries permit ratification decisions to be made by the executive authority. In other countries a legislative body must give its approval before the ratification process is complete. Fourth, treaties enter into force when a sufficient number of countries (a number generally spelled out in the treaty itself) ratify the agreement. A country may acceed to a treaty, thus considering itself bound by the treaty’s terms without formal ratification.

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There are many different types of treaties that affect commercial relationships. One of the most common is the bilateral treaty known as “Treaty of Friendship, Cooperation and Navigation”. Such treaties spell out many of the details of one country’s commercial relationship with another. Multilateral treaties are having an increasing impact on commercial relations among countries.

Statutes. As the term is used in this section, statutes refers to the promulgation of principles of law by the governments of individual countries that govern commercial transactions as a whole. In some countries, these principles are stated as part of the civil code. In the United States, private commercial dealings are governed mainly by statutes enacted by the legislatures in the individual states, rather than by the national government.

Court decisions. In virtually all countries, a great deal of commercial law is developed by courts’ deciding individual cases brought by parties who claim to have suffered some legal injury in the context of a specific commercial undertaking. Many disputes arising out of international commercial agreements are first decided in the context of an arbitration proceeding, after which the winning party takes the arbitral award to some court for enforcement. In a common law system, the cumulation of individual court decisions leads to the development of legal principles (so-called “judge-made” law) that are just as valid as anything enacted by the country’s legislature. Even in countries outside the common law system, the resolution of individual cases in court often helps fill in the gaps in that country’s civil and commercial code.

Government regulations. In many countries with a centralized system of government, there is no difference between government regulations and statutes since virtually all authority flows directly from the central government.

Look through the text once again and say whether the following sentences are true or false. Correct the false ones.

1.There are three basic instruments for developing and promulgating principles of commercial law.

2.Treaties are documents that control relationships between nations.

3.The international Court of Justice at the Hague is viewed as an appropriate body to conclude treaties.

4.There are four steps in implementing a treaty.

5.The process of treaty verifications doesn’t differ from country to country.

6.The most common type of treaties is Treaty of Friendship, Cooperation and Navigation.

7.Multilateral treaties are having a decreasing impact on commercial relations among countries.

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8.A great deal of commercial law is developed by courts’ deciding individual cases brought by parties.

9.Many disputes are first decided in the context of an arbitration proceedings.

10.In a common law system, the cumulation of individual court decisions leads to the development of legal principles.

;Language

1.Practise reading aloud the following words. If necessary, use a dictionary.

Discipline, facet, necessitate, legal jargon, survey, equity, righteousness, equate, judicial, controversy, enforceable, perjury, lawsuit, appellee, bilateral, detriment, legal, statute, promulgation, duress, trial, appellant, procedure, lawsuit

2.Find in the texts the words similar in meaning to the following.

Human behaviour; set of rules; rules embrace customs and norms;

perform economic and social activities; courts perform two important functions; the court uses rules of law; law influences the operation of business; the basic issues of social conduct (text 1); issues of public law; justice is achieved; law is divided into; deals with all facets of ownership (text 2); is a main form of wealth; according to the principle; promises included in the agreement; makes others rely on it; it gives right to (text 3) contract stems from; intent is the core of a contract; the party must offer; contracts concern identifying the exchanges; conclude a legal contract; doesn’t comply with general public policy (text 4).

3.* Paraphrase the following sentences.

1. Private law is split into the law of contracts, the law of torts, and the law of property. 2. The party initiating the case is the petitioner. 3. No aspect of modern life is free from contractual relationships. 4. The law of contracts concerns the legal effect of promise-making. 5. Another approach supports enforcement of contracts on ground that a promise, once made, includes others to rely upon it. 6. The law has imposed limitations upon the private contract to prevent abuse. 7. Some countries permit ratification decisions to be made by the executive authority. 8. Treaties have a great impact on commercial relationship among countries. 9. Many disputes arising out of international commercial agreements are decided in the context of an arbitration proceeding. 10. They are as valid as anything enacted by the country’s legislature. 11. Treaties enter into force when a significant number of countries ratify the agreement. 12. The civil law system traces its origin to Roman law.

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4. The following pairs of words are synonyms. In what do they differ? Show your understanding in your own sentences.

5.Give all possible derivatives to the following words. Translate them into Russian.

Law, legal, jury, justice, appeal, defend

6.Give the definition or explain the following.

Law, lawsuit, legislation, legal,, illegal, litigation, lawful, trial, court, justice, trial court, judge (n), claim, counterclaim, appellant, appellee, plaintiff

7. Complete the table

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9.Make your own sentences in which the word contract is the subject and the following verbs are used as the predicate.

Contract: concerns, reflects, allows, regulates, is enforced, induces, is negotiated, arises from, binds, must, is terminated, is obeyed, is not fulfilled, resolves, recognizes, determines

10.Fill in the gaps with the necessary prepositions.

1.Stories appear … magazines, ... television. 2. People conceive … business law only … terms … such cases. 3. The company is to provide compensation … the injuries. 4. The most fundamental issues … social conduct are honesty, loyalty, fair treatment … others, and respect … human life. 5. No aspect of modern life is free … contractual relationships.

6.Some copyrights are valid … the lifetime … the creator plus 50 years.

7.The social order rests … the stability and predictability of conduct.

8.Court actions do contribute … business law. 9. The courts apply rules … law previously established … the government. 10. The top executives were sued … mismanagement. 11. It refers … all types of contracts. 12. … all his attempts he was unable to pay his debt. 13. It was quite unexpected … the part of the company to refuse our help. 14. According … the law they are to compensate … all your losses. 15. The firm agreed to do it … exchange … better conditions … the market. 16. This is his fault. He has done it … the wrong time. 17. I can’t give you any answer right now … … the uncertainty of the possible development of the situation.

11.Work with a good dictionary. Translate the following idioms into Russian. Think of the situations where you could use them.

Lose face; lose ground; lose heart; lose one’s battle; lose one’s cool; lose one’s marbles; lose one’s shirt; lose one’s way in broad daylight; lose the day; make a big play of smth; make a clean sweep; make a good showing; make a killing; make a meal of smth; make a name for oneself; make a mountain out of a molehill; make ends meet; make headway; make or mar; make smb’s day; make one’s way; make the right noises; make waves.

12.Give the Russian equivalents to the following.

Law is the body of rules and principle; norms are enforceable through sanctions; adopts and enforces the rules for the society; rules are adopted

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and enacted by the government; rules are embodied in constitutions; rules of law impose sanctions; induce compliance with the law; legal rules; reliable and enforceable principles; engage in dynamic process; principles of right, good and fairness; derive from moral principles; provide guidance for individual conduct; do not comply with a body of rules they consider wrong or evil; widely held ethical belief; acquire rights and obligations; performance of a promise; legally binding; the claim to promised advantages; presupposition of the whole economic order; basic premise of contract law; constitute a solemn commitment; “sancity of contract” approach; enforcement of contract; individual autonomy; impose limitations, defrauded party.

13. Give the English equivalents to the following.

Контрактные отношения; определить стабильность и предсказуемость; обещания и их юридические последствия; заключить соглашение; предупредить (упредить) нарушения; нарушение контракта; последствия невыполнения контракта; нести ответственность за; иметь право на; неадекватная мера; суд может заставить; правила поведения; в рамках сообщества; традиции и нормы; суды выполняют две важные функции; ранее установленные правила; разрабатывают новые правовые нормы; регулируют продажу и операции с ценными бумагами; выплатить компенсацию; закон о защите прав потребителей; применяемые по отношению ко всем членам общества; пользоваться правами и привилегиями; принципы, разделяемые всеми членами общества

14.* Read the following passage attentively. How many spelling mistakes have you found? Correct them.

Bankraptcy laws are intended to protect both a campany or a person with not enough asets to pay dets and the creditors to wome the dets are owed. Bankruptcy is a legal procedure by wich a court divides up the remaining assets of an insolvent person or company amon the people and arganizations to whome maney is owed.

When bankrupsy is diclared, nearly all of the assets of the debtor are eventually seld for cash. The processes are used to pay court costs and other costs, unpaid employee wages up to a maximum limit for each worker, taxes, and sicured loans. If any money is left after these charges, it is divided among general creditors acording to the percent of total debt ech is owed. The creditors then have no furter claims.

15. Match the beginning with the suitable ending.

1.Treaties are documents

2.The civil law system traces its origin

3.The resolution of individual cases in court often helps

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4.A country may accede to a treaty,

5.Most international scholars believe

6.Patent law guarantees

7.Justice has been defined as

8.Contract law provides

9.One party must propose

10.The law of contracts deals with identifying the exchange

11.The law gives to certain classes of people only a

12.The law will not enforce a promise

13.Most valid contracts

a.thus considering itself beyond by the treaty’s terms without formal ratification.

b.that legal principles can emerge from pronouncements of international organizations.

c.that rights to the new item will be released eventually.

d.that which is founded in equity, honesty, and righteousness.

e.to Roman law.

f.that control relationships between nations.

g.fill in the gaps in that country’s civil and commercial law.

h.the certainty, stability and predictability for the performance of transactions.

i.that an agreement be entered into.

j.limited capacity to enter into contracts.

k.that can be classified as contracts.

l.that involves an illegal act.

m.are obeyed by both parties.

16. Fill in the gaps with the words from the box.

It is often wisest … a new idea through the law of trade secrets, rather than patent or copyright registration. A trade secret is defined by the Uniform Trade Secrets Act and by … development. Both under the act and as a result of case law development, a trade secret is … that:

1.is not … known.

2.is protected through some security … to maintain secrecy.

3.is valuable.

4.requires a … expenditure of time, money, or labour to develop. To illustrate, product … such as making a cigarette 100 millimeters

long or making a stainless steel razor blade would not be entitled to trade secret protection since they would fail to meet … 1, 2, and 4 above. In

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contrast, the … to make Coca Cola, or a new freeze-drying process would all be considered trade secrets.

Trade secrets require no … or expensive fees. Trade secrets are not disclosed to… . A further benefit of trade secrets law is that …, unlike patents and copyrights, may be protected forever.

17. Translate the following sentences from English into Russian.

1. The failure of one party to live up to a contractual agreement is called breach of contract. 2. A contract is a legally enforceable, voluntary agreement between two or more parties. 3. Bankruptcy is a legal procedure for individuals and firms that cannot pay their debts. 4. Deregulation is the process of reducing the involvement of government in the regulation of business, by eliminating legal restraints on competition.

5.Collective bargaining is a process by which the representatives of the firm meet and attempt to work out a contract with union representatives.

6.Mediator is a third party to a labour dispute who tries to get union and management to reason and works at improving communication between them. 7. Arbitrator is a third party to a labour dispute who makes the final, binding decision about some disputed issue. 8. Civil courts usually do not require compliance but instead impose liability for noncompliance. 9. The legality of a contract is determined by our courts and legal system. 10. The Justinian Code set the stage for many of the concepts of the present civil law system, and has many of the attributes of a modern legal system. 11. Stability and predictability largely flow from the establishment of clear and easily understood rules that allow people in business to draft and negotiate their own agreements. 12. Arbitration allows parties a degree of flexibility which is denied to them in judicial settlement. 13. National legal systems emerged through the process known as codification, a movement that began in the Scandinavian countries and later found its way into the remainder of Europe.

18.* Use infinitive phrases instead of the equivalent Russian attributive clauses.

1.This is the firm (которая может предоставить вам такие услуги).

2.To tell the truth, they have nothing (чем они могли бы вам помочь).

3.They were the first (кто начал разрабатывать этот проект). 4. These are not the evidence (которые можно использовать при принятии решения). 5. There is nobody here (кто мог бы объяснить ситуацию).

6.This is the problem (которую нужно решить как можно скорее).

7.These are the key terms (которые должны быть включены в контракт). 8. Define the parameters (которые необходимо определить, прежде чем начать работу). 9. Here are the questions (на которые необходимо ответить). 10. The monetary policy has become another means (которое ускорило концентрацию капитала).

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