高级法学英语1-3

高校硕士研究生专业英语精品教材

高级法学英语

中南财经政法大学研究生部精品教材研究课题（2012—2014）

编写说明

《高级法学英语》旨在培养学习者借助已有的基础英语为工具学习法学知识，在法学知识的学习过程中，习得专业语言。编写原则既遵循语言学习的内在规律性，又充分体现法学知识的专业特点，重在提高法学硕士研究生的专业英语思辨能力。

课文取材不再是一般法学知识的简要陈述，而是以问题研究为导向的深入探讨。语料源于英美学者2012年以来发表的论文或出版的著作。

全书共十个单元。单元课文阅读量为5000英文单词。每单元由课文、生词、注解、练习和法律英语汉译技巧组成。单元课文是由三篇各1500字左右的文章组成一个内容完整、主题突出的统一体，以有利于学习者贯通知识，进一步深入分析探讨。课文内容包括普通法系与大陆法系的比较、合同与准合同、商人法与商法、欧洲统一销售法、国际环境法、公平招聘法律问题、跨国离婚法律问题、有子女的父母犯罪量刑问题、英格兰与苏格兰刑事拘留问题、美国法学教育与改革等专题。法学英语翻译技巧包括基本翻译技巧----加注、增补、省略、转换、切分、合并，以及句子翻译技巧----名词从句的翻译、状语从句的翻译、定语从句的翻译和长句的翻译。单元练习包括阅读理解问题、词汇练习、短文翻译和课文概要写作。

本教程设计阅读总量为50000英文单词，生词概率为2%，适合大学英语四级水平以上且有相当法学基础的学习者使用。

CONTENTS

UNIT ONE CONTRACT LAW

Section A Understanding of Contract Section B Mistake in Contract Section C Quasi-Contract

Section D Translation Skill: Annotation

UNIT TWO LITIGATING MARITAL PROPERTY AND SUPPORT RIGHTS FOR INTERNATIONAL DIVORCE

Section A Jurisdiction and Procedure in International Divorce Litigation Section B Defining Property and support rights

Section C Recognizing and Enforcing Marital Property and Support Orders Section D Translation Skill: Amplification

UNIT THREE A FAMILY LAW PERSPECTIVE ON PARENTAL INCARCERATION Section A Family Law and Child Development

Section B Approaches to Consideration of Children’s Interests

Section C Proposal for Consideration of Children’s Interests When Sentencing Parents Section D Translation Skill: Omission

UNIT FOUR FAIRNESS AND INEQUALIT IN EMPLOYMENT DISCRIMINATION LITIGATION Section A How People Assess Legal Fairness: Toward an Analysis of Situated Justice Section B Employment Civil Rights

Section C Toward Understanding Situated Justice Section D Translation Skill: Shift of Perspective

UNIT FIVE LAW MERCHANT

Section A Foundations of the Law Merchant Section B The Law in Law Merchant

Section C Twenty-first-century Law Merchant Section D Translation Skill: Division

UNIT SIX COMMOM EUROPEAN SALES LAW Section A The Substantive Scope of the CESL

Section B Possible Routes for Members to Reach the Agreement

Section C Further Questions from the Proposal within the Framework Section D Translation Skill: Combination

UNIT SEVEN A NEW DAWN FOR SCOTTISH CRIMINAL PROCEDURE Section A Arrest, Custody and Police Powers Section B Access to Legal Assistance

Section C Requirement for Corroboration

Section D Translation Skill: Translation of Noun Clause

UNIT EIGHT INTERNATIONAL LAW OF ENVIROMENTAL IMPACT

ASSESSMENT AND THE ESPOO CONVENTION

Section A The Obligation to EIA Section B Content of an EIA

Section C Challenging an EIA: Judicial Review

Section D Translation Skill: Translation of Adverbial Clause

UNIT NINE THE EFFICIENCY OF THE COMMON LAW: THE PUZZLE OF MIXED LEGAL FAMILIES Section A The history of the common law

Section B Mixed Jurisdictions and Mixed Legal Families Section C THE Economic Model

Section D Translation Skill: Translation of Attributive Clause

UNIT TEN AMERICAN LAW SCHOOL EDUCATION Section A History of Legal Education Section B Law School Rankings

Section C Law School Education Reform

Section D Translation Skill: Translation of Long Clause

Appendix Key to the Exercise

UNIT ONE

CONTRACT LAW

Section A

Understanding of Contract

1 In the eyes of lawyers the word ―contract‖ is used in common speech, simply to refer to a writing containing terms on which the parties have agreed. ―Contract‖ is often used in a more technical sense to mean a promise, or a set of promises, that the law will enforce or at least recognize in some way. British law defines contract as an agreement arising from offer and acceptance. One party makes an offer, and another party accepts that offer. When this has happened (provided that other necessary factors, namely, consideration and intention to contract, are present) there is a contract.

2 In arguing the definition of contract some jurisprudents think neither promise nor agreement is completely satisfactory as a basis for the definition. They claim that the definition of the American Restatement ignores the bargain—the exchange of equivalents which is the essence of a contract. No indication is made in the definition that the typical contract is a two-sided affair, something being promised or done on one side in return for something being promised or done on the other side. Thus to say that a contract can simply be ―a promise‖ is to overlook the fact that there is generally some act or promise given in return for the other promise before that promise becomes a contract. Even to say that a contract may consist of ―a set of promises‖ gives no indication that some of these promises are usually given in return for some

others. But it would be wrong to assume that all contracts are genuine bargains in which something is offered on one side for something else of equivalent value on the other.

3 Every promise is an agreement and every set of promises forming the consideration for each other is also an agreement. Agreement implies two or more persons who agree upon the same thing in the same sense. It may create legal obligation or it may not create legal obligation and in this sense not every agreement can become enforceable at law.

4 These scholars also argue that all the definitions in terms of promises or agreements presuppose that people only enter into contractual relations after they have made some agreement or promise. In fact, this is not always the case. People sometimes simply enter into transactions or relations which are not really based on prior agreements or promises. One obvious example is that of the simultaneous exchange, or sale. A person who buys goods in a supermarket and pays cash for them is exchanging his money for the goods that he buys.

5 There is no doubt at all that this is a legal contract, but it is artificial to regard it as a contract created by agreement or promise. To insist that there must be a prior agreement or a set of promises in such a case is to imply that there is a moment of time—before the handing over of the goods and the money—in which the parties are legally bound to perform their agreement or promises. But it seems very doubtful whether that is the case. Still it must be recognized that it might be very well argued that ―in contemplation of law‖ there is an implied agreement before the actual exchange of goods for money.

6 Promises and agreements undoubtedly lie close to the center of the concept of contract, but there are at least two other ideas which also lie very close to that center. One is that a person who induces another to rely upon him and change his position, ought not to let that person down, and the other is that a person who does a service to another or renders him some benefit, ought generally to be recompensed for his trouble. Contractual obligations are often imposed for one or other of these reasons on persons who have not really promised or agreed to bear them. In order to reconcile

this result with traditional definitions of contract, two devices are often employed. One is to rely on the concept of an ―implied agreement‖ or ―implied promise‖；the other is to argue that the liability being imposed is not ―truly‖ contractual but is in fact a legal liability of a different kind，for instance， a liability in tort.

7 In practice, people can gather some idea of what the word ―contract‖ means from the cases in Bolin Farms v. American Cotton Shippers Ass‘n (1973). That year saw a spectacular rise in the price of cotton on the American market. The causes were said to include large shipments to China, high water and flood conditions in the cotton belt, late plantings forced by heavy rains, and the devaluation of the dollar. In the early months of the year, before planting, a cotton farmer will make a ―forward‖ sale contract for delivery to the buyer of all cotton to be raised and harvested on a specified tract at a fixed price per pound, without guarantee of quantity or quality. The farmer can then use this contract to finance the raising of his crop.

8 Early in 1973, cotton farmers made such contracts to sell at a price roughly equal to the price on the market at that time, some 30 cents a pound. By the time the cotton had been raised and was ready for delivery, however, the market price had risen to about 80 cents a pound. Many refused to perform the ―forward‖ contracts that they had made at the lower price, and scores of lawsuits resulted throughout the cotton belt. Not only were the farmers universally unsuccessful, but the decisions evoked little attention.

9 What promises will the law enforce? What remedies were available to the disappointed cotton buyers on the farmers‘ enforceable promises?The cases here expose three fundamental assumptions made by courts in enforcing promises. One of these is that ―law is concerned mainly with relief of promisees to redress breach and not with punishment of promisors to compel performance.‖ A second assumption is that the relief granted to the aggrieved promisee should generally protect the promisee‘s expectation by attempting to put the promisee in the position in which it would have been had the promise been performed. A third assumption is that the appropriate form of relief is substitutional, in the form of a judgment awarding money damages to be paid to the aggrieved promisee, rather than specific, in the form of a

court order directing the promisor to perform its promise.

10 After the above discussion we come to know the ―Contract‖ may be defined as an agreement, a promise or a set of promises, which create legal liabilities rather than moral obligations, enforceable by the law between two or more persons to do or forebear from doing some act or acts；their intentions being to create legal relations and not merely to exchange mutual promises, both having given something, or having promised to give something of value as consideration for any benefit derived from the agreement or the promise except a transaction agreement by deed. Although transactions by deed are legally binding they are not true contracts at all. A transaction by deed derives its legally binding quality from the special way in which it is made rather than from the operation of the contract law.

11 The definition of contract in the Chinese contract law stresses its functions, saying that a contract is the manifestation of intention to establish, change or terminate the civil relationship between two or more parties. Lawfully established contract shall be protected by law. According to this definition a contract is of three features：

(1) 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 established.

(2) 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.

(3) Making a contract is a legal act rather than illegal act. Unlawfully established contracts are null or void.

12 In some continental countries, for example, in Germany, the BGB uses an abstract concept of Rechtegcsehaft, putting contract into a category of legal act which covers intention of the two parties and some other certain lawful conducts. This intention is viewed as an essential requirement to form a contract, therefore, the two parties can not establish a contract if they do not manifest it to each other. In the French Civil Code there is a more specific concept of Consensus than that of legal act.

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、

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

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

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

those parties and applicable regulatory enactment.)

3 Mistake must be of fact and not of law. This concept has a technical meaning and does not cover errors of judgment as to value. Thus if A buys an article thinking it is worth ￡100 when in fact it is worth ￡50 only, the contract is good. And A must bear loss if there has been no misrepresentation by the seller. This is what is meant by the maxim caveat emptor (let the buyer beware.)

4 An interesting example of how the judiciary can interpret what some might think to be mistakes of law as mistakes of fact in provided by Solle v. Butcher. In that case Butcher had agreed to lease a flat in Beckenham to Solle at a yearly rental of ￡250, the lease to run for seven years. Both parties had acted on the assumption that the flat, which had been substantially reconstructed, so as to be virtually a new flat, was no longer controlled by the Rent Restriction legislation then in force. If it were so controlled the maximum rent payable would be ￡140 per annum. Nevertheless Butcher would have been entitled to increase that rent by charging 8% of the cost of repairs and improvements which would bring the figure up to about ￡250 per annum, the rent actually charged, if he had served a statutory notice on Solle before the new lease was executed. No such notice was in fact served. Actually they both for a time mistakenly thought that the flat was decontrolled when this was not the case. Solle realized the mistake after some two years, and sought to recover the rent he had overpaid and to continue for the balance of the seven years as a statutory tenant at ￡140 per annum. Butcher counterclaimed for rescission of the lease in equity. 5 Held: the mistake was one of fact and not of law. The fact that the flat was not within the provisions of the Rent Acts, and this was a bilateral mistake as to quality which would not invalidate the contract at common law. However, on the counterclaim for rescission, it was held that the lease could be rescinded. In order not to dispossess Solle, the court offered him the following alternatives (a) to surrender the lease entirely；or (b) to remain on possession as a mere licensee until a new lease could be drawn up after Butcher had had time to serve the statutory notice which would allow him to add a sum for repairs to the ￡140 which would bring the lawful rent up to ￡250 per annum.

6 In practice, such mistakes may come into three categories：mutual (or non-identical bilateral) mistake, common (or bilateral identical) mistake and unilateral mistake.

7 Mutual (or non-identical bilateral) mistake occurs where X offers to sell car A and Y agrees to buy, thinking X is B, in other words, when concluding a contract both parties do not intend the same meaning. In this case, neither should be bound. In Raffles v. Wichelhaus (1864) S agreed to sell cotton to B to arrive on the Peerless. There happened to be two ships named Peerless, one to sail in October, the other to sail in December. The seller tendered the cotton from the December Peerless. The buyer intended to buy cotton from the October Peerless. Therefore it was held that there existed no contract between the parties. At common law the contract made in such a mistake is not necessarily void because the court will try to find the sense of promise. This usually occurs where, although the parties are at cross-purposes, the contract actually identifies the agreement. On the other hand, equity also tries to find the sense of the promise as identified by the contract, thus following the law. However, equitable remedies are discretionary and even where the sense of the promise as identified by the contract can be ascertained equity will not necessarily grant specific performance if it would cause hardship to the defendant.

8 Common (or bilateral identical) mistake occurs where both parties are mistaken and each makes the same mistake. In practice only common mistake as to the existence of the subject matter of the contract or where the subject matter of the contract already belongs to the buyer will make the contract void at common law. S and B had concluded a purchase and sale contract as to a shipload of maize. They had thought that the maize was on the ship. But in fact, the captain had executed his power to sell out the maize because the maize had begun to rot away. In this case both parties were not bound because of non-existence of the maize. This can be also illustrated in Galloway v. Galloway (1914). A man and woman entered into a separation deed, believing that they were husband and wife. This was not so, because the prior spouse of the husband turned out to be still alive. The separation deed was held to be void, because the marriage, which was the basis of the deed, did not exist.

9 Unilateral mistake. If one of the parties should not have known or did not know of the quality, the main part or the nature of the contract and the other party knew, there is a contract according to the former‘s misunderstanding. In this situation the former cannot repudiate the contract unless he can prove in evidence that he has been intentionally deceived and induced to enter into the contract he did not intend to. Consider the situation：If an offeror misdirects his offer to the person, the latter cannot accept the offer if he knows or has reason to know that he was not the intended offeree. However, if the offeree neither knows nor has reason to know of the misdirection of the offer the unintended offeree may accept and create an enforceable contract.

10 The validity of a contract is usually not affected by mistake unless the mistake is fundamental and harmful to the contract. In practice, the following mistakes result in a valid contract. (a) A mistake in intention made by one party, for example, a mistake made in calculation of price. (b) A mistake in judgment, for example, a mistake in estimate of one‘s ability to perform a contract. (c) A mistake in understanding the meaning of a description of certain products in sale of them. 11 In the light of civil law there are two kinds of mistakes shall vitiate a contract. (a) A mistake in the quality of a subject matter (this quality seen as a substantial one without which the buyer would not have bought). (b) A mistake in identity of the other counter-party which is vital to the conclusion of a contract.

12 It is held in the GBG that a contract shall be rescinded by (a) a mistake in manifestation of the intention and (b) a mistake in form of manifestation of the intention. (1373 words)

New Words and Proper Terms

caveat emptor Peerless

n. 买方自慎; 货物售出，概不退还 n. 无敌号货轮

举证

in evidence

arbitration agency reality

仲裁机构

n. 真实性 n. 协商 n. 身份 n. 一年

v. 解除对……管制 v. 使……无效

consultation identity annum decontrol vitiate

dispossess v. 剥夺

Notes

1. Mistake must be of fact and not of law.

错误可以是事实错误（ mistake of facts），即与交易的实际情况不相符合的错误；也可以是法律错误（mistake of law），即合同适用法律方面的错误。单方错误与双方错误。

Mistake of Law: \does not know that the legislature has passed a law criminalizing something or that a person does know what is against the law, i.e., does not know what the law forbids, that this ignorance does not operate to relieve the person of criminal responsibility for the commission of the crime. At common law, mistake of law or \law\

Mistake of Fact: There, it is required that the defendant must have acted or omitted to have acted under an actual and reasonable belief in the existence of the facts. Those facts or circumstances, if true, must have made the defendant's conduct lawful. The defendant's belief must not only be actual (honest) but also a reasonable belief.

Exercises

I. Write T (true) or F (false) for each statement of the following according to what you have learnt from the text:

1. A contract must be an agreement reached through consultation.

2. Mistake must be of fact and not of law.

3. Mistakes may be in three categories：mutual mistake, common mistake and unilateral mistake.

4. A contract shall be rescinded by a mistake in manifestation of the intention and a mistake in form of manifestation of the intention.

5. The validity of a contract is usually affected by mistake unless the mistake is fundamental and harmful to the contract.

6. Bilateral identical mistake occurs where both parties are mistaken and each makes the same mistake.

7. Non-identical bilateral mistake occurs where X offers to sell car A and Y agrees to buy, thinking A is B.

8. If A buys an article thinking it is worth ￡100 when in fact it is worth ￡50 only, the contract is illegal

9. In common law the contract made in such a mistake is not necessarily void because the court will try to find the sense of agreement.

10. In the light of civil law there are many kinds of mistakes shall vitiate a contract. II. Translate the following into Chinese :

The system of mistake is an old system of civil law, and the expression of intention mistake is different from the concept of mistake in Anglo-American law. The validity of a contract is usually not affected by mistake unless the mistake is fundamental and harmful to the contract. In practice, the following mistakes result in a valid contract. (a) A mistake in intention made by one party, for example, a mistake made in calculation of price. (b) A mistake in judgment, for example, a mistake in estimate of one‘s ability to perform a contract. (c) A mistake in understanding the meaning of a description of certain products in sale of them.

In the light of civil law there are two kinds of mistakes shall vitiate a contract. (a) A mistake in the quality of a subject matter. (b) A mistake in identity of the other counter-party which is vital to the conclusion of a contract.

Section C

Quasi-Contract

1 The term ?quasi-contract‘, once used to describe the area of law now called ?restitution‘ or ?unjust enrichment‘, is now out of favour. ?Quasi-contract‘ says only that the matter is not contract. So far as it suggests that there is a sort of contract, it deceives, unintelligibly. Quasi-contractual liability should be understood not as part of unjust enrichment, but as a different basis of liability that can help us see what liability for unjust enrichment might be: liability grounded in notions of fairness. 2 The notion of quasi-contract can help us understand what is at stake. whether to impose liability in certain circumstances in which no contract has been made between the parties but when we have good reason to believe that such a contract would have been made if the parties had had the opportunity to do so. This analysis is more fitting for these cases because by trying to find what the parties would have contracted for, it adopts an ex ante perspective. Interestingly, once again we see that commentators who reject the quasi-contractual analysis end up explaining the situation by invoking contractual concepts. For example, in explaining why liability should be imposed only on successful attempts, Burrows writes: ?A reasonable man would surely pay for someone to try to rescue his drowning daughter or to try to save his burning house‘. Burrows comes close to stating the quasi-contractual rationale for imposing liability: the reason why liability should be imposed in such cases is because people would have been willing to pay for the service (even without the guarantee of success), if they had had the opportunity to do so.

3 Within a quasi-contractual analysis it is not difficult to explain why liability need not be limited to successful attempts. In many contracts for service, the service provider does not promise a certain result, only a certain degree of effort. If the promisor fulfils her contractual liability by performing to that level, she does not breach her contractual obligation even if the service she provides does not match a

certain desired outcome. By contrast, in principle, if the promisor fails to perform to the same degree required by the contract, she breaches the contract even if the non-contracted yet desired outcome is achieved.

4 A true emergency situation that should give rise to quasi-contractual liability exists in the following situation: an uncontracted-for service is provided when (a) transaction costs for the contract are prohibitively high; (b) had the service not been provided, the recipient of the service would have suffered a considerable real loss; (c) the recipient has not provided evidence to suggest that she would have declined the service if she had had the opportunity to do so; and (d) the service provided was of adequate quality. If these conditions obtain and someone provides an unconsented service to another, the provider of the service is entitled to recover from the person she assisted, whether or not her service was successful.

5 The four conditions highlight the quasi-contractual aspect of this sort of liability, both by limiting liability to those situations in which contracts were not made only because of high transaction costs, and by their focus on the ex ante perspective. As with all cases of comparing reality to a hypothetical case, this approach raises a question as to which hypothetical situation we envisage and how different we make it from what actually took place: do we imagine the recipient in perfect health making a contract with the person who provided him with the service, or do we change the facts as little as possible from how things actually were and imagine the recipient consenting to a contract with the service provider in the last moments before losing consciousness? The latter situation may seem the better one because it is ?closer‘ to how things were.

6 However, this case is problematic from a contractual perspective: it is hard to know what a market price for such a case would be, partly because there are not enough such cases to establish a market price. Further, in such cases it would be rational for the recipient to agree to pay anything for a treatment, down to the level of subsistence below which he would rather not stay alive, and because at this moment the particular service provider is a monopolist, it is possible that she will demand such a price. This implies that in such cases the recipient's willingness to pay would be

strongly affected by his ability to pay, which differs considerably among people. More broadly, the latter scenario is one in which one's autonomy is compromised. As quasi-contract liability is supposed to be grounded in the same notions of autonomy that ground contractual liability. It is also the hypothetical that matches the liability rule proposed.

7 Another aspect of the proposal worth highlighting is that it does not try to identify emergency cases directly. Rather, it assumes that emergency cases are cases of ?considerable loss‘ (and not merely cases of foregone opportunity to make a profit) and limits recovery to them. The basis for this definition is psychological: even though from an economic perspective a lost profit is (more or less) similar to an actual loss of similar size, people tend to react very differently to actual losses and foregone benefits. The second and third conditions provide additional indirect guarantee that only true cases of emergency are captured in the definition. The claimant in such a case would have to show that transaction costs were high, or else her quasi-contractual claim would fail for not taking the contractual route when it was readily available. The third condition not only provides an easy way for the service recipient to avoid liability, but also helps identify rescue cases on the assumption that in other cases the recipient would have rejected the service.

8 Another advantage of the suggested solution over that of free acceptance is that in cases that do not fall under it, the recipient will not have to reject the service because the provider will not be able to establish the first condition. Birks's solution requires the recipient of the service to actively reject the service or otherwise risk having to pay for it. Because the proposed alternative is more finely tailored to identify those instances in which liability should be imposed, in all non-emergency situations the recipient of a service will not have to do anything to avoid liability for unconsented services.

9 The defendant's liability under quasi-contract is equal to the value of the benefit conferred by the plaintiff. The value is the fair market value of the benefit and not necessarily the subjective value that the defendant enjoys. A traditional measure of the fair market value is called quantum meruit, for \much as is deserved.\For

example, accountant prepares tax-payer's taxes, finding a way to get him an unusually large refund. Tax-payer doesn't pay accountant. Assuming a court finds no contract, tax-payer is only liable for the fair market value of tax preparation services, which is not inflated up to account for the unusually large refund he enjoyed.

10 Under Oklahoma law:The measure of damages in a quasi-contract action is the amount which will compensate the party aggrieved for the detriment proximately caused thereby, and, if the obligation is to pay money, the detriment caused by the breach in the amount due by the terms of the obligation. The party to be charged is any defendant, or in the case of a guarantee or surety, a co-defendant, in a breach of contract lawsuit.

11 In contracts, it is the consent of the contracting parties which produces the obligation; in quasi-contracts no consent is required, and the obligation arises from the law or natural equity, on the facts of the case. These acts are called quasi-contracts, because, without being contracts, they bind the parties as contracts do. \quasi-contract is not really a contract at all in the normal meaning of a contract,\according to one scholar, but rather is \obligation imposed on a party to make things fair.\

12 The Oklahoma Supreme Court has described the distinction between a contract and a quasi-contract in T & S Inv. Co. v. Coury, 593 P.2d 503 (Okla. 1979), as follows:

A \implication of fact. In the former the contract is a mere fiction, imposed in order to adapt the case to a given remedy. In the latter, the contract is a fact legitimately inferred. In one the intention is disregarded; in the other, it is ascertained and enforced. In one, the duty defines the contract; in the other, the contract defines the duty.

Exercises

I. Questions for discussion: 1. What is quasi-contract?

2. What‘s your understanding of the quasi-contractual rationale?

3. What are the four conditions for the quasi-contractual liability? 4. Is a quasi-contract a contract? Why or why not?

5. What are the advantages of the suggested solution over that of free acceptance? II. Write a summary of the text

Section D

Translation Skill: Annotation

翻译技巧：加注

由于英汉语言文化的差异，尤其是两种完全不同的法律体系，有些词义在两种语言间没有对应关系，造成词义上的空缺。在这种情况下，英语译成汉语常常采用先翻译，后注解的方法来处理，这就是加注（Annotation）。加注法主要分为音译加注和直译加注两种。一、音译加注

音译加注指依据英文单词的读音将其翻译成汉语，然后附加解释性注释。注释可长可短，可采用文中夹注，也可采用脚注，有时还可二者同时并用。音译加注法多见于以动议者命名的法案和以人名地名和组织机构名为标题的案例等。 (1) Tucker Act : 《塔克法案》（1887年3月3日通过, 是美国政府放弃特定案件中主权豁免

权利的法案。）

(2) Magnuson Act: 《麦诺森法案》(美国国会1943年通过的排华法案废除案，从而废除所

有排华法案。)

(3) McCarran-Walter Act：《麦卡伦－沃尔特法》（即1965年《移民与国籍法》）

(4) M’Naghten Rules:《麦克·纳顿条例》(英国1843年制定的专门就精神障碍者刑事责任

能力问题的法律规定。)

(5) Monroe doctrine：门罗主义(美利坚合众国1823年发表的国际政治观点，即欧洲列强不应再殖民美洲，或涉足美国与墨西哥等美洲国家之主权相关事务。) (6) Mapp v. Ohio：“马普诉俄亥俄州”案（1961年，确立排除非法搜查取得证据的原则。） (7) Gideon v. Wainwright:“吉迪恩诉温赖特”案（1963年，确立重罪案件必须有律师帮助

的原则。）

(8) Davis v. North Carolina：“戴维斯诉北卡罗来纳州”案（1966年，确立嫌疑犯认罪前警

察须有其告知权利的义务原则。）

(9) Miranda v. Arizona： “米兰达诉亚利桑那州”案（1966年，产生了米兰达规则，要求

被疑人有权知道自己的沉默权和律师帮助权。）

(10) Escobedo v. Illinois： “埃斯科韦多诉伊利诺伊州”案（1964年，确立非法取得的自白

无效原则。）

(11) Taylor v. Louisiana： “泰勒诉路易斯安那州”案（1975年，确立陪审团是社区影子不

能有性别排斥原则。）

有些难以区分的法律词汇，则可以采用半音译半意译的方法来解决。

Barrister: 巴律师（专指在英国可在高等法院出庭的大律师，专门律师） Solicitor: 沙律师（专指在英国负责非诉讼业务的事务律师）

Romalpa clause: 罗马尔帕条款(英国销售合同中的所有权保留条款, 卖方规定直到货款付清才能转让货物所有权。) 二、直译加注

直译加注指按照英文词汇的法律意义将其翻译成汉语，并附加解释性注释。注释可长可短，可采用文中夹注，也可采用脚注，有时还可二者同时并用。直译加注运用较为普遍。 (1) Yellow dog contract: 黄狗合同(指工人向雇主保证受雇期间不加入任何工会组织) (2) Soldier’s will: 军人遗嘱(一种只能处分动产的非正式遗嘱)

(3) golden parachutes：黄金降落伞（按照聘用合同中公司控制权变动条款对高层管理人员

进行补偿的规定）

(4) neighborhood watch: 邻里监督（一种邻里间互相监督以减少犯罪的地方组织）

(5) pretrial review：审前审查（在刑事诉讼中，庭前审查程序是衔接公诉和审判的过渡性阶

段；在民事诉讼中，庭前审查有利于减少诉讼、节省费用。） (6) pyramid selling: 宝塔式销售(多指非法传销)

(7) If someone takes the Fifth Amendment, they refuse to answer a question because they think it might show that they are guilty of a crime. You can also say that someone invokes, pleads, or claims the Fifth Amendment.公民可以依(美国宪法)第五条修正案拒绝回答提问，以免陷入有罪指控的困境。

(8) If the Bill is supported by Members and receives its Second Reading, it will then go through the Committee Stage and be ready for the Third Reading.有关法案若获议员支持及通过二读(立法机关对法案草案的原则辩论),将会进入全体委员会审议阶段并进行三读(立法机关对法案草案的最后表决)。

ANSWERS Section A

II. Choose the best answer for each of the following according to the text: 1.A.B.C. 2.C. 3B. 4.A 5. B. C. III. Vocabulary

Fill in the following blanks with the given words:

1.competent party, 2.mutual agreement, 3.oral contract, 4.consideration, 5.implied contract, 6.express contract, 7.formal contract, 8.divisible contract, 9.legality of purpose, 10.Indivisible contract, IV. Translate the following into Chinese:

签订合同是甲乙双方的民事法律行为所至。至少双方均应积极参与，并表达真23

实意图。否则，合同就不成立。签订合同的目的是为了确立一定的民事法律效力，其中包括双方民事法律关系的确立、变更和终止。签订合同是一种法律行为而不是非法行为。非法订立的合同均为无效合同。合同义务通常是强加给合同各方的。依据产生阶段的不同，合同义务可以分为先合同义务、合同履行中的附随义务和后合同义务三种。

Section B

I.Write T (true) or F (false) for each statement of the following according to what you have learnt from the text:

1. F 2.T 3.T 4.T 5.F 6.T 7.F 8.F. 9.F 10.F II. Translate the following into Chinese:

意思表示错误，缘于大陆法上的概念，是指表意人因自身原因所致的意思与表示不一致，与英美法上错误概念相异。

合同的有效性通常不会因为意思表示错误而受影响，但原则性和危害性意思表示错误除外。在实践中，三类意思表示错误合同仍然有效。（1）意思表示错误是由合同一方造成的，比如：估价错误。（2）判断错误，比如：错误估计了履行合同的行为能力。（3）错误地理解了描述某些销售产品的意义。

依据民法规则，只有两类意思表示错误导致合同无效。（1）标的物的实质性意思表示错误。（2）对与其签订合同至关重要的另一方的身份表述错误。

UNIT TWO

INTERNATIONAL DIVOICE: LITIGATING MARITAL PROPERTY AND SUPPORT RIGHTS

Section A

Jurisdiction and Procedure in International Divorce Litigation

1 Jurisdiction for divorce or separation proceedings in the United States is based on residence or domicile. A court in the state where a petitioner is resident or domiciled may enter an ex-parte divorce decree, even if it has no basis for exercising personal jurisdiction over the respondent. The court must have full personal jurisdiction over both parties, however, to enter orders concerning spousal support and marital property division. Subject matter jurisdiction over divorce and its financial incidents is conferred by state statutes.

2 Under this rule of divisible divorce jurisdiction, an ex-parte divorce decree based on the petitioner's domicile or residence within the forum state is entitled to full faith and credit in every state. Court orders concerning marital property and support rights are not entitled to full faith and credit, however, unless the forum court had personal jurisdiction over the respondent. Based on the same policies, courts in the United States give effect to many foreign ex-parte divorce decrees as a matter of comity, but do not recognize and enforce financial orders entered by a foreign court unless that court had full personal jurisdiction. (1) Obtaining Jurisdiction

3 Courts have several means of acquiring personal jurisdiction over the parties to a divorce or separation action. By filing an action with a court, the petitioner submits to the court's personal jurisdiction. The court may obtain personal jurisdiction over a respondent based on his or her residence or domicile within the state. For jurisdictional purposes, courts construe residence and domicile generously in this context, extending their authority to individuals who live only part-time within the state. A court may also exercise personal jurisdiction based on a respondent's general appearance in a proceeding, and a respondent who files a responsive pleading without objecting to jurisdiction is typically deemed to have waived any of these defenses. 4 More controversially, a state court may exercise personal jurisdiction over a respondent who is personally served with process within the forum state. The leading case on this type of \jurisdiction\is Burnham v. Superior Court of California, which upheld California's exercise of personal jurisdiction over a defendant in a child support case based only on the fact that he had been served with process while present in the state. Before relying on Burnham-type service to confer personal jurisdiction on the court, counsel should be aware that foreign jurisdictions may refuse to enforce a decree entered on this basis, as tag jurisdiction is widely rejected outside the United States.

(2) Service of Process 5 Beyond the question of jurisdiction, due process requires that a respondent must be afforded notice and an opportunity for a hearing, even in the context of an ex-parte divorce. The same rule applies in international cases. If a state court has a basis for long-arm jurisdiction over a respondent, state law may authorize personal service on that respondent outside the jurisdiction. The question of whether substituted service is permitted is determined by the law of the forum, but the means utilized must also comply with the laws of the country in which service is made. 6 Because of the tradition of treating divorce actions as a type of in-rem proceeding, some forms of substituted service are permitted under state law when the respondent cannot be located or served using conventional techniques. In hollow v. hollow, the court approved service by e-mail in a divorce action in which the husband

had relocated from New York to Saudi Arabia. Finding that the wife had made reasonable, though unsuccessful, efforts to effect service through an international process server and husband's employer, the court concluded that those methods were impracticable under the New York rule and that substituted service by e-mail would be the best means of providing the husband with notice of the proceedings.

7 Service of process on an individual in a foreign country is subject to both the law of the state where the action has been filed and any applicable provisions of foreign or international law. The United States has ratified the Hague Service Convention, and adherence to the convention is mandatory for service of process in civil proceedings--including family law matters--in any of more than sixty countries in which it is in force. Under the convention, each contracting state designates a central authority to receive incoming requests for service of documents. The U.S. Central Authority is the Office of International Judicial Assistance in the Department of Justice, and outgoing requests are managed by a contractor acting on behalf of the central authority.

8 As a treaty, the convention preempts inconsistent provisions of state law, and service in treaty countries that does not comply with the convention is ineffective, even if the respondent had actual notice of the proceeding. A party who fails to raise objections to service in a timely manner may be deemed to have waived them, however. Foreign defendants who are present within the territory of the United States may be served with process here, provided that service complies with the applicable procedural rules of the forum. Note also that service under the service convention does not confer personal jurisdiction in state court over a respondent who does not have the requisite minimum contacts with the state.

9 The United States has a treaty relationship with another group of countries under the Inter-American Convention on Letters Rogatory and Its Additional Protocol (IACAP), which also provides a mechanism for service of documents through a central authority. If the Hague Service Convention or the Inter-American Convention are not available, service by letters rogatory may be required. Outgoing letters rogatory are typically drafted by counsel and signed by a judge. Depending on the

country to which they will be sent, the letters must be authenticated and translated, and then submitted to the secretary of state for transmittal through diplomatic channels. Depending on the law of the other country involved, it may be possible to transmit the letter through local legal counsel. Note that service of process on a member of the U.S. armed services who is stationed abroad may be facilitated by military authorities.

(3) Divorce Jurisdiction in Other Countries 10 Foreign countries base jurisdiction for divorce on connecting factors, including residence or domicile and, in some countries, the nationality of the parties to the marriage. As a result, there are a variety of circumstances in which foreign citizens residing in the United States and U.S. citizens living in a foreign country may find themselves defending divorce proceedings abroad. In Canada, the federal Divorce Act confers jurisdiction to grant a divorce on the court of a province where either spouse has been \a year prior to commencing proceedings. Marital property matters are governed by provincial or territorial law. In Mexico, divorce jurisdiction is based on domicile. Within the European Union (EU), divorce jurisdiction is defined by the Brussels IIA Regulation, also known as Brussels II bis or Brussels II Revised. Under Brussels IIA, courts can exercise jurisdiction in divorce, legal separation, or marriage annulment proceedings based on the spouses' habitual residence, or based on the spouses' joint nationality or domicile.

11 In contrast with the \divorce\rule in the United States, many foreign countries do not distinguish between the jurisdiction required for a divorce or separation decree and the jurisdiction necessary to address the couple's property and support rights. From the perspective of courts in the United States, financial orders that satisfied jurisdictional rules in the country where they were entered, but which were not based on facts that would give rise to personal jurisdiction over the respondent spouse, would not satisfy the due process requirements for recognition and enforcement in the United States.

12 In situations in which more than one country within the European Union could assert divorce jurisdiction, Brussels IIA gives a strict priority to the first

jurisdiction in which proceedings are filed, based on a lis pendens principle. This rule prevents the problem of parallel and competing divorce litigation, but it is often criticized for encouraging forum shopping and a race to the courthouse. Although Brussels IIA does not apply to \ancillary measures,\European courts with jurisdiction to enter a divorce routinely address financial matters in the same proceeding. Because there are major differences between the property and support laws of the EU member countries, the jurisdictional race under Brussels IIA can have very significant financial consequences. As a result, individual parties and their lawyers have an incentive to act strategically and to file immediately when problems develop within a marriage.

13 Within the European Union, a group of countries have moved toward a system of \legal separation cases, giving priority to application of the law of the couple's habitual residence prior to separation. This system should help to reduce the jurisdictional race in participating countries, but a significant group of EU member countries, including the United Kingdom, have opted out of the enhanced cooperation regulation.

New Words and Proper Terms

Petitioner n. (英)离婚案原告

Ex-parte （拉）单方面的，只代表一方的 jurisdiction n. 司法权，审判权，管辖权 decree n. 法令；判决 ratify vt. 批准；认可

personal jurisdiction n. 属人管辖权 respondent n. 被告；应答者 construe vt. 分析；解释 hearing n. 审讯，听讯 mandatory adj. 强制的；托管的 Department of Justice (美国)司法部

divisible divorce 可分割性离婚原则 lis pendens （拉）未决诉讼

Notes

1. In a divisible divorce, a marriage is terminated, while other issues, normally settled during a divorce, remain unsettled. When a couple seeks a divorce, any claims for alimony, child custody and visitation, child support, and the division of property are usually decided either by agreement of the parties involved or by a judge's ruling. By contrast, these and any other pertinent issues may be decided after the divorce is final in a divisible divorce. Sometimes a divisible divorce is referred to as a bifurcated divorce.

2.tag jurisdiction: 接触的管辖权

Much of the analysis in court decisions on the basis for jurisdiction over parties not resident in the United States has been on the extent to which they have business contacts with the jurisdiction. This focus on ―long-arm‖ jurisdiction and its concern with fairness overlooks another concept underwhich jurisdiction may be obtained: service of a summons on a person who is physically present in the jurisdiction but who otherwise has no contacts with it. Is this type of jurisdiction—known as transitory or ―tag‖ jurisdiction—alive and well in international cases, in which extraterritorial jurisdiction has frequently been based on elaborate balancing tests? Until recently, the answer to this question might well have been,―Probably not.‖ For example, in Schaffer v. Heitner, the Supreme Courtstated, ― . . . all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.‖ The Restatement (Third) of Foreign Relations Law of the United States states: ―Tag jurisdiction, i.e. jurisdiction based on service of process on a person only transitorily in the territory of the state, is not generally acceptable under international law.‖ 3. in-rem proceeding 反对诉讼程序

When something is \to a property. In other words, in rem means that the suit is directed solely against a property instead of a person, and when the court makes its decision it makes it

regarding the property itself and laws concerning property, regardless of who owns it. In this case, the rights of the property in terms of its physical position and land laws become important. Owner interests do not affect the court's decision. In rem can be translated as \4. Hague Service Convention,

The Hague Service Convention provides for service of process by a Central Authority (usually the Ministry of Justice) in the Convention countries pursuant to a request submitted on a form USM-94, available at the office of any United States Marshal. The text of the treaty is self-explanatory, but see the reservations and declarations each country made on accession to the treaty. Some countries made specific reservations against particular methods of service. The Convention method should be employed in all countries party to it.

5. Inter-American Convention on Letters Rogatory and Its Additional Protocol (IACAP)

The Inter-American Convention on Letters Rogatory and Additional Protocol (IACAP) are a pair of international agreements designed to facilitate judicial assistance between countries. The United States interprets those agreements as limited to covering service of process and countries must be a party to both agreements in order for a treaty relationship to exist. Replacing the traditional letters rogatory process, the IACAP provides a mechanism for service of documents by a foreign central authority. The Department of Justice is the U.S. Central Authority under the IACAP. Requests from the United States are transmitted via a private contractor carrying out the service functions of the U.S. Central Authority on behalf of the Department of Justice. 6. Brussels IIA Regulation

(EC) No 2201/2003,[1] also called Brussels IIA or II bis is a European Union Regulation on conflict of law issues in family law between member states; in particular those related to divorce, child custody and international child abduction. It replaces Convention Council Regulation (EC) No 1347/2000 of 29 May 2000 on the jurisdiction, recognition and enforcement of judgments in matrimonial matters and in

matters of parental responsibility for joint children. The regulation does not apply to Denmark.

Exercises

I. Questions for discussion:

1. What are the differences between personal jurisdiction and Subject matter jurisdiction?

2. What are the means of courts to acquire personal jurisdiction over the parties to a divorce or separation action?

3. Can you take an example to state that e-mail can be adopted as a service in a divorce action?

4. How can the Hague Service Convention be implemented in USA?

5. What are differences in divorce jurisdictions among Canada, Mexico and EU? II. Choose the best answer for each of the following according to the text: 1. Jurisdiction for divorce or separation proceedings in the United States is based on _____or domicile.

A. citizen B. residence C. address D. house

2. If a state court has a basis for ____ jurisdiction over a respondent, state law may authorize personal service on that respondent outside the jurisdiction. A. short B. long-term C. long-arm D. personal

3. Service of process on an individual in a foreign country is subject to both the law of the state where the action has been filed and any applicable provisions of foreign or_______.

A. international law B. domestic law C. civil law D. marriage law

4. Many foreign countries do not distinguish between the jurisdiction required for a divorce or separation decree and the jurisdiction necessary to _____ the couple's property and support rights.

A. address B. protect C. manage D. cope with

5. The United States has a treaty relationship with another group of countries under

the_____, which also provides a mechanism for service of documents through a central authority.

A. AICAP B. IACAPA C. LACAP D. IACAP

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

jurisdiction, forum , hearing , tag jurisdiction, divisible divorce, matter, respondent, personal jurisdiction, lis pendens, divorce .

1. Upon receipt of a copy of the arbitration application, the ______ shall, within the time limit prescribed by the Arbitration Rules, submit its defense to the arbitration commission

2. Sometimes a ______ is referred to as a bifurcated divorce.

3. Beyond the question of jurisdiction, due process requires that a respondent must be afforded notice and an opportunity for a_______.

4. If a man and woman ______or if one of them divorces the other, their marriage is legally ended.

5. Foreign defendants who are present within the territory of the United States may be served with process here, provided that service complies with the applicable procedural rules of the______.

6. The jurisdiction based on service of process on a person only transitorily in the territory of the state is called ______ .

7. Finally, it adopts a new institution of ______ to strengthen the harmonization of jurisdiction conflicts

8. In Mexico, divorce______ is based on domicile.

9. Subject ______ jurisdiction over divorce and its financial incidents is conferred by state statutes.

10. In Internet-related cases, the confirmation of the ______ that is based on nationality basis encounters obstacles.

IV. Translate the following passage into Chinese:

Under this rule of divisible divorce jurisdiction, an ex-parte divorce decree based on the petitioner's domicile or residence within the forum state is entitled to full faith and credit in every state. Court orders concerning marital property and support rights are not entitled to full faith and credit, however, unless the forum court had personal jurisdiction over the respondent. Based on the same policies, courts in the United States give effect to many foreign ex-parte divorce decrees as a matter of comity, but do not recognize and enforce financial orders entered by a foreign court unless that court had full personal jurisdiction.

Section B

Defining Property and support rights

1 Despite broad similarities in the types of financial relief that may be available at dissolution of marriage, different legal systems take different approaches to questions, such as what property interests are subject to division between spouses; what are appropriate purposes and amounts of spousal maintenance; whether marital fault may be considered in determining what financial relief will be awarded; and to what extent marital agreements may be enforced. In countries that apply the law of the forum to the grounds for divorce as well as ancillary financial matters, the initial question of jurisdiction takes on particular strategic importance.

2 In the context of divorce proceedings, state courts in the United States generally apply their own law to property and support questions without regard to where the couple may have lived during their marriage or where their property was acquired. For jurisdictional reasons, the forum state is usually the parties' last common residence or domicile. Choice-of-law questions regarding matrimonial property may be important in other settings, particularly in inheritance and tax cases.

For parties with significant assets, defining the legal regime that will apply to their marital property rights is an important purpose of a premarital or postmarital agreement.

(1) Marital Agreements 3 Because of the diverse approaches to marital contracts in different legal systems, it can be difficult to predict whether and to what extent a marital agreement concluded in one country will be enforced in another. Several common law countries, including Australia, Canada, and New Zealand, enforce marital agreements on terms generally similar to the United States. Although marital contracts contemplating divorce have been regarded as invalid and contrary to public policy in England and Wales, the courts have given greater effect to premarital agreements in recent cases, particularly those involving foreign nationals.

4 Marital agreements in the civil law tradition are concluded with different formalities, usually by a notary, who is a lawyer specially trained to prepare and authenticate documents, such as wills, deeds, and certain types of contracts. Statutes in many civil law countries define a number of different marital property systems and allow couples to choose among these in a marital agreement. Courts in the United States usually recognize and enforce civil-law marital property contracts, even when these agreements establish a regime very different from the background rules of the forum state. There may be difficulties, however, when the foreign procedures do not meet the standards of state law for disclosure or voluntariness.

5 Under traditional choice-of-law principles, the law of the place where a contract is executed governs its validity and interpretation, whereas the law of the place where the contract is to be performed governs matters of breach and enforcement. Courts regularly apply this rule to marital agreements, particularly those involving property rights. Under the restatement (Second) of Conflict of Laws section 188, the law of the place having the most significant contacts with the parties and their dispute applies to their rights and duties under a contract. If support rights are at issue, a court in the domicile or residence of the spouse seeking support has a particularly strong interest in addressing economic hardship that might result from a

divorce. In some circumstances, a court might conclude that the parties have abandoned their agreement or their initial implicit choice of law, particularly after a move from one legal system to another. In international cases, the choice-of-law issue is sometimes discussed in terms of comity, and even under the traditional choice-of-law rule, a court is not likely to enforce an agreement that violates its strong public policy.

6 If the parties include a choice-of-law term in a marital agreement, state courts are likely to enforce it, provided that the parties have some connection to the forum they select. A choice-of-law provision may be subject to public policy objections when there is a substantial difference between what the foreign law permits and what local law would require. Thus, a premarital agreement entered into with no asset disclosure or independent legal advice, or one that includes a waiver of spousal support, might not be enforced in a jurisdiction that requires asset disclosure or legal advice or considers support waivers to be potentially unconscionable. Similarly, a postnuptial agreement valid in the place where it was executed might not be enforced in a state that prohibits postnuptial agreements.

7 The variability of these rules makes it difficult to prepare a marital agreement likely to be fully effective in some future litigation in an undetermined time and place. The ordinary risks of ambiguity and omission are significantly increased when the agreement will move with a couple through different legal and financial systems. Enforcement in the United States is more likely if counsel and the parties have paid careful attention to the various aspects of procedural and substantive fairness, including asset disclosure and independent counsel. Choice-of-law language that clearly identifies the connections to the forum whose law is selected and indicates the parties' intention that this law should control even in the event they relocate will also increase the likelihood of enforcement. Courts should evaluate the general enforceability of a marital agreement under the law of the place where it was executed, and give effect to a clear and reasonable choice-of-law provision, in the interest of protecting the parties' reasonable expectations and allowing for financial planning. 8 Courts in the United States apply the same general principles to marital

agreements entered into in the Jewish or Muslim tradition. To the extent that these agreements provide for performance of a secular act, such as a financial payment, they can be enforced on the same terms as other marital agreements. If an agreement requires performance of an act that the civil court regards as religious, however, a court in the United States will refuse to enforce the provision on First Amendment grounds. If presented to the civil court for enforcement, marital agreements from religious legal systems are tested under the same rules that courts apply to other marital agreements.

(2) Determining Applicable Law 9 Looking around the world, there are wide variations in the financial entitlements that arise from a marriage. Attempts to harmonize these differences at the international level have met with only limited success. The 1978 Hague Convention on the Law Applicable to Matrimonial Regimes has been ratified in only a handful of countries and is not in effect in the United States. The United States has signed the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Maintenance Convention), which will mandate cross-border recognition of spousal and child support orders between participating countries when it comes into effect, but the United States does not plan to ratify the protocol to the Maintenance Convention addressing choice of law issues. The protocol is in effect in most member countries of the European Union, and a number of EU countries have agreed to a regime of \in divorce and separation matters.

10 Traditional choice of law rules in the United States generally provide that the rights of a married couple in moveable property are governed by the law of their domicile at the time they acquired the property, while their rights in land are governed by the law of the place where the property is located. This generates substantial complexity for couples who have lived and acquired property in more than one place, particularly if they have moved between common law and community property jurisdictions.

11 In the context of divorce, these traditional rules have been criticized as

\and contrary to the interests of the parties and the divorcing state,\which typically has the greatest concern with the spouses' financial circumstances after divorce.

12 In practice, courts in many states apply their own law to all marital property and support issues in divorce, particularly if neither spouse requests application of another law. In several community property states, this approach is mandated by statutes that provide for division of \community property,\defined as all property acquired outside the state that would have been community property if the spouse who acquired it had been domiciled in the state at the time it was acquired. In spousal support cases, section 303 of the Uniform Interstate Family Support Act (UIFSA), provides that a responding tribunal applies its own procedural and substantive law in making a determination as to the duty of support and the amount of support payable. The validity of a separation agreement entered into in another country is usually based on the law of the place where it was made.

Exercises

I. Write T (true) or F (false) for each statement of the following according to what you have learnt from the text:

1. In the context of divorce proceedings, state courts in the United States generally apply their own law to property and support questions with regard to where the couple may have lived during their marriage or where their property was acquired.

2. Because of the diverse approaches to marital contracts in different legal systems, it can be easy to predict whether and to what extent a marital agreement concluded in one country will be enforced in another.

3. Statutes in many civil law countries define a number of different marital property systems and allow couples to choose among these in a marital agreement.

4. If support rights are at issue, a court in the domicile or residence of the spouse seeking support has a particularly strong interest in addressing economic hardship that might result from a divorce.

5. Courts in the United States apply the same general principles to marital agreements entered into in the Jewish or Muslim tradition.

6. In practice, courts in all states apply their own law to all marital property and support issues in divorce, particularly if neither spouse requests application of another law.

7. The common law countries, including enforce marital agreements on terms generally similar to the United States.

8. The ordinary risks of ambiguity and omission are significantly increased when the agreement will move with a couple through different legal and financial systems. 9. The 1978 Hague Convention on the Law Applicable to Matrimonial Regimes has been ratified in only a handful of countries and is not in effect in the United States. 10. Traditional choice of law rules in the United States generally provide that the rights of a married couple in moveable property are governed by the law of their domicile at the time they acquired the property, while their rights in land are governed by the law of the place where the property is located.

II. Translate the following into Chinese:

1. Marital agreements in the civil law tradition are concluded with different formalities, usually by a notary, who is a lawyer specially trained to prepare and authenticate documents, such as wills, deeds, and certain types of contracts. Statutes in many civil law countries define a number of different marital property systems and allow couples to choose among these in a marital agreement. Courts in the United States usually recognize and enforce civil-law marital property contracts, even when these agreements establish a regime very different from the background rules of the forum state. There may be difficulties, however, when the foreign procedures do not meet the standards of state law for disclosure or voluntariness.

2. Traditional choice of law rules in the United States generally provide that the rights of a married couple in moveable property are governed by the law of their domicile at the time they acquired the property, while their rights in land are governed by the law of the place where the property is located. This generates substantial complexity for

couples who have lived and acquired property in more than one place, particularly if they have moved between common law and community property jurisdictions.

Section C

Recognizing and Enforcing Marital Property and Support Orders

1 State courts in the United States must extend full faith and credit to financial orders entered in other states, provided that the court had an appropriate basis for jurisdiction and the other requirements of due process were met. The same principles apply to international cases in which recognition is based on comity. In most states, marital property and support orders may be enforced in a new civil action, based on the foreign court judgment, in a court where it is possible for the judgment creditor to obtain jurisdiction over the judgment debtor or the debtor's property. The claim may be brought as an independent equitable action or raised as a counterclaim, cross-claim, or affirmative defense. In support cases, an enforcement action will often fall within the scope of the UIFSA. In property cases, a few states allow enforcement under the Uniform Foreign Money-Judgments Recognition Act (UFMJRA). In real property cases, other remedies may be available. (1) Extending Comity

2 State courts regularly recognize ex-parte foreign divorce decrees if one of the parties was a resident or domiciled in the foreign country where the divorce was ordered. Because U.S. law requires that a court have personal jurisdiction over both spouses to enter orders concerning property or support matters, financial aspects of an ex-parte foreign divorce will not be given effect based on comity. When a foreign court has exercised jurisdiction in factual circumstances that meet the requirements of U.S. law, the order should be recognized and enforced in state and federal courts. 3 Building on the Supreme Court's approach to comity in hilton v. guyot,

restatement (Second) of Conflict of Laws section 98 holds that a foreign judgment \States so far as the immediate parties and the underlying claim are concerned.\ As with a judgment from another state, a foreign court judgment may be challenged on grounds, such as the absence of personal or subject matter jurisdiction in the original forum, lack of reasonable notice, or fraud. In the international context, where there is no requirement of full faith and credit, courts have discretion to deny comity when there is a strong public policy objection to the foreign judgment.

4 In order to give effect to the property or support aspects of foreign country divorce or separation decrees, a state court must be satisfied that the foreign court acquired personal jurisdiction over the respondent spouse. This is tested under the standards applied to cases in the United States. In addition, the respondent spouse must have received adequate notice and an opportunity to be heard. When these conditions are met, even a foreign default judgment may be recognized on the basis of comity.

(2) Uniform Foreign Money judgments recognition Act

5 The Uniform Foreign Money Judgments Recognition Act (UFMJRA), and its successor, the Uniform Foreign Country Money Judgments Recognition Act (UFCMJRA), codified common law comity principles to allow enforcement of foreign country judgments in state courts on the same terms as judgments of other states. By its terms, the UFMJRA does not apply to \for support in matrimonial or family matters,%under the UIFSA. In some states, the UFMJRA has been applied to other types of money judgments in divorce cases, such as property division orders, and some states have enacted nonuniform versions of the statute extending to all types of matrimonial claims, including spousal support.168 The more recent UFCMJRA has a broader exclusion for any \rendered in connection with domestic relations.\ Both versions of the act reaffirm that matrimonial judgments may be recognized based on comity or other legal principles.

6 In the small group of jurisdictions in which the original UFMJRA may offer a basis for recognition of foreign divorce money judgments, section three of the act provides that the judgment \sister state that is entitled to full faith and credit.\grounds for nonrecognition of a foreign country judgment, including lack of personal or subject matter jurisdiction in the issuing court or a finding that \rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.\(3) Uniform Interstate Family Support Act (UIFSA)

7 UIFSA establishes a procedure through which a state tribunal may register and enforce a spousal support order entered in another state. The same procedure is available for support orders entered in certain foreign countries. In cases that include both child and spousal support orders, the spousal support creditor may be eligible for free services from the local child support recovery unit, established in each state under federal law. These services are available in both interstate and international cases. 8 The version of UIFSA adopted in 2008 allows registration and enforcement of a foreign spousal support order if the order was entered by a court in a country that meets the definition of \four categories: countries that have been declared to be \reciprocating countries\with a particular state, countries that have \law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under UIFSA,\in force with respect to the United States. Foreign country spousal support orders that meet the statutory definition in UIFSA section 102( 5), and which are registered for enforcement under UIFSA section 601, are \forceable in the same manner and … subject to the same procedures\ The law of the issuing tribunal governs most questions, including the \extent, amount, and duration of current payments\payment of arrearages and interest.

9 UIFSA generally applies the same procedures to both spousal and child support proceedings, but it draws a distinction between the jurisdiction needed to modify the two types of support orders. Under UIFSA section 211(a), the court that enters a spousal support order maintains \order throughout its existence. Any proceeding to modify or terminate spousal support must therefore be brought in the original forum, even if neither of the parties continues to live in that jurisdiction. In international cases, the rule of continuing jurisdiction presented difficulties if the foreign tribunal that issued an initial spousal support order considered its jurisdiction to terminate after all parties had left the forum. In this circumstance, there was no forum with jurisdiction to modify within the parameters of UIFSA. As amended in 2008, section 211(b) will permit a state court to modify a foreign spousal-support order if the tribunal that issued it no longer has jurisdiction to modify.

10 UIFSA preserves the possibility that a support order from a foreign jurisdiction that is not a \country\may be recognized and enforced on the basis of comity, and section 105(b) permits a court to \the procedural and substantive provisions\of UIFSA in such a case. Recognition of another country's support order on this basis is discretionary, however, while recognition and enforcement of \definition is mandatory.

(4) Foreign Recognition of U.S. Marital Property and Support Judgment

11 There is no broad multilateral treaty on recognition and enforcement of marital property orders. The United States has not joined the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, which is in effect in eighteen countries and which specifically does not apply to ancillary orders, including \related to pecuniary obligations.\

12 Financial judgments in U.S. divorce cases may be recognized based on comity in common law jurisdictions including England, Canada, Australia, and New Zealand. For enforcement of these judgments, additional requirements apply, analogous to the U.S. rules that require personal jurisdiction over petitioner and

respondent to adjudicate property rights. In civil law countries, recognition and enforcement of financial judgments often require an exequatur proceeding, and may depend on proof that reciprocal treatment would be extended to comparable orders from that country. Foreign financial judgments may be enforced in Mexico, if the foreign court had jurisdiction in accordance with Mexican principles of jurisdiction and other conditions are met. This rule does not apply to judgments concerning title to real property in Mexico as these are within the exclusive jurisdiction of Mexican courts.

13 Financial orders entered by a court in a divorce proceeding in the United States, based on personal jurisdiction acquired through a minimum contacts approach or tag jurisdiction, may prove difficult to enforce in a country that does not accept these grounds for jurisdiction. It should be possible to argue for foreign recognition of a U.S. order if the court exercised jurisdiction in factual circumstances that would provide an adequate basis for personal jurisdiction under the relevant foreign law. 14 In the support context, the United States has not participated in multilateral international treaties governing recognition and enforcement of family support orders, such as the 1956 New York Convention on the Recovery Abroad of Maintenance or the 1973 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. Although U.S. spousal support orders are therefore not recognized under these treaties, they may be recognized and enforced in other countries based on comity or an exequatur proceeding, or pursuant to bilateral agreements at the state or federal level. When it comes into effect, the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance will mandate recognition and enforcement of spousal support as well as child support orders.

Exercises

I. Questions for discussion:

1.How can the marital property and support orders be enforced? 1

2. Why do the American law require that a court have personal jurisdiction over both spouses to enter orders concerning property or support matters, financial aspects of an ex-parte foreign divorce will not be given effect based on comity?2

3.What does the Uniform Foreign Money Judgments Recognition Act codify common law comity principles?5

4. What is the Uniform Interstate Family Support Act for? 7/8/9

5. Can the U.S. Marital Property and Support Judgment be recognized in foreign countries?

II. Write a summary of the text with 150 words.

Section D Translation Skill---

ANSWERS Section A

II. Choose the best answer for each of the following according to the text: 1. B 2. C 3. A 4. A 5. D

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

1. respondent 2. divisible divorce 3. hearing 4. divorce 5. forum 6. tag jurisdiction

7. lis pendens 8. jurisdiction 9. matter 10. personal jurisdiction IV. Translate the following passage into Chinese:

在可分割的离婚诉讼管辖权原则下，州法院基于原告的住所或居住地而作出的单方面离婚判决在每个州都能得到完全信任。但若涉及到婚姻财产分割和抚养义务时，只有该管辖法院对原被告双方都有属人管辖权时，其判决才会被信任和认可。基于上述规则，美国法院以礼让规则承认很多国外单方离婚判决的效力，但并不承认和执行外国法院作出的财产判决，除非该法院具有完全的人身管辖权。 Section B

I. Write T (true) or F (false) for each statement of the following according to what you

have learnt from the text:

1. F 2.F 3. T 4.T 5. T 6. F 7. F 8.T 9. T 10.T II. Translate the following into Chinese

1. 大陆法系国家的夫妻协议须依不同的正式手续达成，通常需经公证人公证。公证人是经专门培训以备鉴证各种法律文件的律师，如遗嘱、证书和特定类型的合同。许多大陆法系国家的制定法确定了一系列不同婚姻财产的体系并允许夫妻协议在此范围内进行约定。即使民法上的夫妻财产协议约定内容与州法院的规则背景有极大不同，美国的法庭也通常会对其进行承认和执行。但是，当外国法院程序并不符合州法关于公开或自愿的标准时，此种承认或执行可能很困难。 2.依据美国传统的准据法规则，已婚夫妇的动产权利适用他们获得财产时的居所地法，而不动产权利适用财产所在地法。这会给居住和取得财产不在同一地点的夫妇带来更大的困难，尤其是对那些曾在普通法管辖区和共同财产管辖区之间来回迁徙生活的夫妇更是如此。

UNIT THREE

A FAMILY LAW PERSPECTIVE ON PARENTAL INCARCERATION

Section A

Family Law and Child Development

1 Family law is unique among American legal fields in making children's interests paramount, as it does in the context of custody disputes between a child's legal parents. Under the ―best interests of the child‖ standard that family law courts apply in adjudicating such disputes, the child's interests prevail over all else. By elevating children's interests over other concerns, custody courts provide an unparalleled examination of children's development, and how that development is affected by each child's placement in one or another caretaking environment. 2 Courts assessing children's best interests in order to resolve custody disputes take for granted that the ways in which children are brought up will shape the type of adults they become. While custody courts care about children's day-to-day happiness, they are especially concerned with how children's current experience will affect their future. The custody literature therefore provides extensive analysis of the ways in which childhood experience and early caregiving arrangements can alter a child's course of development into adulthood, for better or for worse.

3 Underlying the best-interests assessment is the often unspoken assumption that the goal of the custody decision-maker is to ensure that each child become a happy and well-adjusted adult. Using terms such as ―autonomy‖, ―independen[ce]‖, ―self-sufficien[cy]‖ and ―productiv[ity],‖ courts awarding custody frequently convey that the goal of caregiving is to best foster each child's transition from the dependence

that is the hallmark of childhood to the autonomy that is the defining characteristic of adulthood. Custody courts make clear—to an extent unique in legal analysis—that the likelihood of a child reaching his or her potential to become a well-functioning adult can be greatly influenced by his or her upbringing and early environment.

4 The best-interests case law discusses at length the factors that can diminish a child's chances of becoming a well-adjusted and autonomous adult. The custody literature reflects a consensus that the conditions most likely to foster a child's well-being are continuity and stability, and that, conversely, any disruption of a child's environment and caretaking arrangement can inflict developmental harm. Custody decisions often entail change to a child's status quo, such that some disruption is inevitable. The focus of the best-interests inquiry, then, is often on the degree and nature of developmental harm that various types of disruption will inflict on a child. The court's goal in these cases is to find the arrangement that will be the least damaging to the child's future well-being.

5 There is widespread agreement in the custody literature that the disruption of the parent-child tie can be especially damaging to a child's development. For years, courts favored primary caregivers—often mothers—in order to minimize a disruption of the parent-child bond that was seen as potentially traumatic to a child. Today, courts and legislatures increasingly recognize the importance to children of maintaining contact with both parents. Custody courts will discuss with a great degree of nuance—and often with the aid of expert psychological testimony—the harms that disruption of the parent-child tie can inflict on a child given her particular stage of development.

3. What is the widespread agreement in the custody literature? 5

6 Custody courts often acknowledge, for example, that extended separation of an infant or toddler from a parent is particularly dangerous to a child's development, and can have life-long effects. Separation of an infant from a parent can disrupt the bonding process that is the foundation of the child's future emotional and intellectual

growth, and separation of parent and toddler can impede the toddler's first steps toward autonomy and independence, which the toddler takes by building on the trust developed during the infant-parent bonding process. Courts awarding custody often note that separation from a parent at these vulnerable stages of development can harm a child's cognitive as well as psychological development, and can impede both the acquisition of language and other developmental milestones and the ability to form relationships and regulate emotions later in life.

7 Custody courts are also concerned with minimizing other types of disruption to children, on the theory that these, too, can hamper a child's progress toward a well-adjusted adulthood. Courts may express concern, for instance, about the damage that financial insecurity can inflict on a child. Courts are wary of placing too much weight on financial factors, and some jurisdictions prohibit their consideration altogether. Yet many custody courts will consider how financial instability can affect a child's development, both directly and indirectly. These courts acknowledge that financial deprivation can diminish the opportunities that will be available to a child later in life. Such deprivation, moreover, is often attended by additional potential harms in the form of frequent moves, educational disruption, and parental stress, each of which, according to the custody case law, can jeopardize a child's emotional and intellectual development, with long-term effects.

8 Family law's best interests of the child standard, then, provides a rich picture of the ways in which changes to a child's custodial environment can thwart a child's development into an autonomous and healthy adult. Foremost among these is disruption to the parent-child tie, especially when combined with other forms of change such as relocation and financial insecurity. Children who undergo disruptions of this nature to their caretaking environments may suffer developmental harm as a result.

9 By articulating the harmful effects on children of various types of disruption and instability, family law's best-interests analysis provides a useful tool for

understanding how parental incarceration may affect a child's development. In 2007, there were 1.7 million children with a parent in prison. This represents an increase of 79 percent since 1991. As of 2007, the incarcerated population included 744,200 fathers and 65,600 mothers.

10 When a parent is incarcerated, this typically inflicts on a child the very harm that custody courts work most stringently to avoid: separation from a parent. As a preliminary matter, it is important to acknowledge that some children may benefit by separation from an incarcerated parent. Where the parent has abused the child, or exposed the child to other forms of violence, the child might be better off in a new environment. But family courts emphasize the importance to children of maintaining contact with even troubled and problematic parents, where possible. Criminal courts imposing sentences of incarceration, by contrast, will also separate children from parents who have been exemplary caretakers. They frequently do so without acknowledging the extent to which the separation may jeopardize the child's development and future well-being.

11 From the perspective of family law's best-interests case law, it is clear that the harm to children caused by separation from incarcerated parents can have profound and life-long effects. While the potential for harm is greatest when a child is separated from a primary caretaker, family law courts acknowledge the importance to children's well-being of maintaining contact with both parents. The potential for damage is especially great when a child is young. But separation from a parent can harm a child at any stage of development, and can result in behavioral problems, trouble in school, and emotional problems that may make it difficult for the child to establish relationships and to function independently as an adult.

New Words and Proper Terms

高级法学英语1-3

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