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ОглавлениеЧасть IV. Тексты правовой тематики Для бесплатного чтения доступна только часть главы! Для чтения полной версии необходимо приобрести книгуЧАСТЬ IV. ТЕКСТЫ ПРАВОВОЙ ТЕМАТИКИText 1. Voluntary assignment at common law (novation)At common law the general principle was that choses in action could not be assigned with the exception of those involving the Crown and negotiable instruments. It should be borne in mind that while the third party assignee could not enforce the contract against the promisor at common law, there was, nevertheless, a binding contract between the assignee and the assigner, which resulted in the fact that the assignee could sue the assigner for breach of contract. However there were means of avoiding this rule so that the right to enforce a contract could be undertaken by a third party. For example, it was possible for rights to be acquired by a third party by a process called “novation”. Novation is basically a contract between the promisee, the pomisor and the third party whereby the benefits of the contract will be owed by the promisor to the third party. In fact, this is not an assignment since the enforcement of the contract by the third party is based on the existence of a new contract and on the provision of consideration in order that the second contract be enforceable. This exception is subject to disadvantage that the consent of the promisor would always be required for the novation to work. (Law of Contracts by Paul Richards, Longman, 2006) Text 2. Accord and satisfactionThere are several ways to discharge a contract. Accord and satisfaction is an example of discharge by performance. It is an agreement between two parties whereby one party agrees to forego his rights under the original contract, some new consideration being given by the other party. There must be both accord or agreement, and satisfaction, the satisfaction being a fresh consideration. The commonest example is the allowance of a cash discount. The creditor receives his money at an earlier date than that on which he could otherwise demand payment and the risk, however small it may be, of a bad debt is eliminated. (Law of Contracts by Paul Richards, Longman, 2006) Text 3. Liquidated damages and penaltiesThe parties may decide to make a genuine pre-estimate of the losses the may incur, should one of the parties be in breach of contract, and then agree to pay certain sums if such an event occurs. Where the sums payable are a genuine pre-estimate of losses then the court will support claims for such sums, despite the fact that the actual losses may have been more or less than those sustained by the contract. The sums agreed to be payable by the parties are termed “liquidated damages”. In some countries, however, the sums agreed by the parties to be payable are excessive in relation to the maximum possible losses the parties may sustain. Such sums, rather than being “liquidated damages”, are termed “penalties” and are placed in the contract as a punitive measure to prevent a party from breaching the terms of the contract. The bases on which the courts decide whether a pre-estimated sum is a penalty or not are as follows: 1. A sum will be a penalty if it is extravagant having regard to the maximum possible loss that may occur. 2. If a contract imposes a liability on a party to pay a some of money and failure to do so results in that party’s incurring liability to pay a larger sum, then the latter will be regarded as penalty. 3. If a single sum is payable upon the occurrence of one or several breaches of the contract, no matter how serious they are, then that sum will be regarded as a penalty. (Law of Contracts by Paul Richards, Longman, 2006) Text 4. Illegality of contractsThis topic concerns the fundamental principle that the court will not enforce contracts that are considered to be illegal. Although this principle seems simple enough, the problem is that illegality as a concept covers a multitude of sins. While it is clearly illegal to commission the murder of a person, at the same time, at the other end of the spectrum, it is also illegal to commission the theft of a toy. Thus there is a wide disparity in the seriousness of illegal contract. However the question arises whether the various illegal acts should all have the same degree of effect on the contract, the terms “illegal”, “void” and “ unenforceable” being often used interchangeably by the judges. Authors have attempted to classify the circumstances of illegality in many ways. However it should be noted that these categories are to some degree arbitrary and must be seen as means of the analysis of law rather than conceptual boundaries. (Law of Contracts by Paul Richards, Longman, 2006) Text 5. Discharge by frustrationIt has already been seen in relation to the discharge of contracts by performance that the overriding principle is that compliance with the terms of a contract is strict. However “frustration” is really an expression indicating that the contract, once entered into, has subsequently become impossible to perform. The effect of frustration being proved is dramatic and radical in that it brings about immediate and automatic end to the contract releasing the parties from their liabilities under it. Внимание! Авторские права на книгу "Грамматические трудности перевода. Английский язык для юристов" (Огнева Н.В.) охраняются законодательством! |
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