Transcript PowerPoint 簡報 - Department of Electrical and Electronic

Speaker : Barry Chin (錢志庸)
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Solicitor (HK, UK), Engineer (HK, Canada, UK)
B.Sc., MBA, LL.B.(Hons), PCLL
C.Eng, P.Eng, RPE, MIEE, MIMechE, MHKIE, MAPEO
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Mobile: 8100 1300
Fax: 8100 2600
Address: GPO Box 6050 Hong Kong
 E-mail: [email protected]
 http://www.lawyerchin.com
What the Law of Contract Does?
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A contract is a legally binding agreement.
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An agreement which "the state (China) or
region (HKSAR)" will not recognize is not a
contract.
The law of contract in Hong Kong is based on
and similar to English law but it is not identical.
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Most of Hong Kong's contract law is found not
in legislation but in the reported decisions of
the courts in Hong Kong and other common
law jurisdictions.
The first question is "Is there a contract?"
That is a question of law (Common Law, Case
Law), which depends on the intentions of the
parties as decided by the Court, on the
evidence (on the balance of probability).
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The Court must be satisfied that the parties
manifested a willingness to be bound together
by the contract.
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Agreement usually arises from negotiation.
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Negotiation can usually be0 divided into
invitations, offers, counter offers, rejections
and acceptances.
How are contracts made ?
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Intention
Commercial agreements are presumed to be
intended to be contracts.
Family and social agreements are presumed to
be intended not to be contracts.
Whether the parties have agreed is first a question of
fact - of evidence - then of law - of construction -- that
is interpretation of the meaning of the facts.
A contract is created only when both parties have
shown a willingness to be bound by contract on terms
agreed between them.
Agreement is usually proved by showing acceptance of
an offer.
Offer
The proposal of a contract is called an offer,
which is the offeror's manifestation of
willingness to be bound to the offeree in
contract, in the terms of the offer. An offer
gives the offeree power to make a contract by
accepting those terms.
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An offer may be in writing, by spoken words, by
conduct, or by any mixture of those methods.
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An offer may be withdrawn at any time before
acceptance, unless it is an option.
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An invitation to treat differs from an offer because it
does not give the offeree power to create a contract. It
is an invitation to make offers. Similarly, the supply of
information is not an offer. Whether a stage in
negotiations is an offer or not depends on the intention
of the person initiating it.
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An offer may be made to one or more individuals, a
class, or the whole world.
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An offer may be terminated by the offeree (acceptance,
rejection, counter-offer), Offeror may (revocation, or
lapse by time or by a trigger event).
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An offer may be withdrawn at any time before
acceptance, unless it is an option (offeror give to the
offeree 3 months time).
Acceptance
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Acceptance is the manifestation by an offeree
of willingness to be bound by a contract in the
terms of the offer.
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Acceptance may be by written or spoken words,
or by conduct, or by any mixture of those
methods.
The offeror may stipulate the method of
acceptance.
Upon acceptance of the offer, the contract
comes into existence on the agreed terms.
Acceptance is effective when communicated or
signified in the way stipulated, expressly or
impliedly, by the offeror.
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If the offeror has signified a willingness to take
acceptance by letter or telegram, acceptance
will be effective when the letter is posted or the
telegram dispatched.
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Telexes, fax messages and telephoned
acceptances take effect according to the
general rule, i.e., when communicated.
Communication of acceptance is valid only if
authorized (agreed by the offeror).
Agreement may be evidenced without offer and
acceptance.
The parties may agree all the terms but postpone the
making of the contract. The words "subject to
contract" will usually, but not necessarily, have that
effect.
Consideration
Those who want the court to enforce a promise
must show they have paid a price for it.
A promise unsupported by consideration
cannot make a contract. It is not binding unless
incorporated in a deed.
Past consideration is no consideration.
Consideration may be executed or executory.
Executory consideration is a return promise in the
future. Executed consideration is an act for which the
promise was given.
If the consideration is a promise to pay an unfixed
sum, a later promise to pay a fixed amount is
supported by consideration
A promise to perform an obligation already owed to a
third party is good consideration.
A promise to perform a public duty is good
consideration unless it would be against public policy
to enforce it.
A promise to perform a duty already owed in contract
to the same promisee may be good consideration
provided there is no unfair pressure amounting to
economic duress.
Formality
No formalities are usually required, but for
the sale or other disposition of interests in land.
(Note & Explaint "deeds" and "contracts")
An unenforceable contract is one which the
court may recognize but will not enforce.
Effect of Stamp Duty
The basis of contract in the common law of Hong
Kong is bargain not promise.
The party wishing to enforce an agreement must show
consideration has been given for the others promise.
No consideration is required if the promise is in the
form of a "DEED". The terms of the contract may be
express or implied.
Express terms displace implied terms which
conflict With them. Terms are promises, to be
distinguished from misrepresentations (not a
real promise).
Privity of Contract
A contract may suffer from different kinds of flaws,
providing different remedies: fraud, misrepresentation
(innocent or negligent), duress, undue influence,
mistake, illegality. or incapacity of a party.
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Only a party to a contract can sue on it.
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The holder of a negotiable instrument may
be able to sue on it though not originally a
party to it.
Remedies
Some contractual rights can be assigned.
Contractual obligations cannot.
If a contract is broken, a disappointed party
may do nothing, negotiate, use self-help, seek
arbitration or mediation, or sue.
Remedies provided by the court include
actions in debt, for the price, for damages, for
injunction and for specific performance.
Every breach of contract gives a right to damages.
Equitable remedies are discretionary.