Consensus here means the genuine intention of the two parties. Without manifestation of the intention a contract cannot be concluded.(1488words)

New Words and Proper Terms

offer n. 邀约，发价 acceptance n. 接受，承诺 devaluation n. 货币贬值 court order 法庭判令 consideration forbearance constitute

n. 对价，约因 n. 克制，抑制 v. 构成 vt. 赔偿；酬谢

recompense

Rechtsgeschaefte （德语） 法律行为，合法交易 consensus

n. 合意

对等的价值

同时发生的交易

equivalent value

simultaneous exchange contemplation of law forward contract

法律意图 期货合同

Notes

1. law is concerned mainly with relief of promises to redress breach and not with punishment of promisors to compel performance. 法律主要关注的是为了纠正允诺人违约的行为而对受允诺人所给予的司法救济，而不是强制承诺人履约而实施的处罚。

2. Contract与Agreement的区别

合同的成立必须具备几个主要因素。它们（要约和承诺构成的）协议、约因、

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设立法律关系的愿望和缔约能力四大部分组成。但―协议‖这一术语含义更广，例如协议可能缺乏合同的必备条款（essential clauses/provisions）。

上述解释说明，contract(合同)和agreement(协议)的概念虽然接近，但使用范围不同，不能互换使用。合同是协议的重要组成部分，所有合同一定是协议，而协议不一定都是合同。可以说具备合同成立要求的具有强制执行力的协议才是合同。

3. BGB是Burgerliches Geselzbuch《德国民法典》的简称。《德国民法典》是德意志帝国1896年8月18日公布并自1900年1月1日施行的一部民法典，它是继1804年《法国民法典》（《拿破仑法典》）之后，资本主义国家又一部重要的民法典。这部法典公布至今已有一百余年，已经过多次修订，有时甚至是重大的修订，包括条文的废止和增添，但它的基本结构、基本内容和条文顺序的编排都没有发生改变。至今它仍是德国民法最重要的基础和最重要的渊源。

4.Bolin Farms v. American Cotton Shippers Ass‘n (1973). 柏林农场诉美国棉花运输联盟案。Association 的缩写形式可为assn., ass'n., Assn.

Exercises

I. Questions for discussion:

1. Can a promise or an agreement constitute a contract?

2. ―Neither agreement nor promise is completely satisfactory as a basis for the definition of contract.‖ Do you agree with it? 3. What elements does contract possess?

4. Explain ―every contract is an agreement but every agreement is not a contract‖. 5. What is the BGB?

II. Choose the best answer for each of the following according to the text: 1．A legal contract may be defined as___________.

A. an agreement B. a promise C. a set of promises D. the consent

2. In the case of Bolin Farms v. American Cotton Shippers Ass‘n (1973), the court decision of enforcement was based on _____ fundamental assumptions A. one B. two C. three D. four

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3. In the French Civil Code, the Consensus means the genuine intention of the _____parties.

A. one B. two C. three D. four

4. A person who buys goods in a supermarket and pays cash for them is exchanging his money for the goods that he buys, which is taken as a legal________. A. contract B. agreement C. promise D. action 5. The BGB is of________ legal system.

A. common law B. continental law C. civil law D. case law

III. Fill in the following blanks with the given words:

Indivisible contract, divisible contract, competent party, consideration, delayed payment, express contract, formal contract, oral contract, written contract, illegal contract, implied contract, legality of purpose, mutual agreement.

1. A person who is of legal age and normal mentality is________.

2. The rights and obligations of the parties to a contract should be________.

3. A contract that is created entirely through conversation of the parties involved is _____.

4. The promises exchanged by parties to a contract is_______.

5. A contract that is understood from the acts or conduct of the party is__________. 6. A contract whose meaning is not determined by the conduct of the parties is_____. 7. A written contract that bears a seal is_________.

8. A ___________with several unrelated parts, and each of them can stand alone. 9. The _________is that a contract cannot violate the law.

10. The_________ is that the related parts depend on one another for satisfactory performance.

IV. Translate the following into Chinese:

Making a contract is a civil juristic act done by both sides. At least two parties shall enter, and express their genuine intention. Otherwise a contract cannot be

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established. The purpose to make a contract is to bring out a certain civil juristic effect, including establishing, changing or terminating the civil relationship between the two parties. Making a contract is a legal act rather than illegal act. Unlawfully established contracts are null or void. Contractual obligations are often imposed on all parties. According to the difference among their appearance, it falls into precontractual obligation after contractual obligation and the subordinated obligation in contract performing.

Section B

Mistake in Contract Law

1 Generally, a valid contract must be based on real mutual assent. A valid contract must be an agreement reached through consultation. A contract may be vitiated on the ground of existence of mistake, misrepresentation, duress and undue influence.

2 Mistake refers to misunderstanding of one or both parties as to determination of the subject matter, its existence, its quality, the nature of a contract, the identity of the contracting party, or the terms, etc. For example, S delivers an offer to the T (Telegraph) Company to transmit to B which states：―will sell 800 000 laths delivered at your address, two ten net cash.‖ Through fault of the T Company, the message is transmitted as an offer to sell for ―two net cash‖ B accepts without knowing and without having reason to know of the mistake. On the rationale, there may be no enforceable contract between S and B. However, by the better view, B has an enforceable contract at ―two net cash‖. This case indicates that the offeror assumes the risk of a mistake, having chosen his means of transmission. (S may have a cause of action for damages against the T Company depending upon the contract between

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