English for the Legal Profession
lien[对…有司法留置权] on any real property acquired by the debtor during the life of judgment.
An unpaid judgment creditor can also garnish[留置，扣押] the wages of the debtor or his bank account or any other obligation owing to him from a third party. (未得偿付得判决债权人也可以留置债务人的工资，银行帐号，或者第三人欠他的其它债务。) In the process of garnishment, the person owing the money to the judgment debtor will be directed to pay the money into court rather than to the judgment debtor, and such money will be applied against the judgment debt. (留置过程中，对判决债务人负有债务的人将受令把钱付给法院而不付给判决债务人，这些钱将被用于抵偿判决债务。) A plaintiff who fears that the defendant will dispose of his property before the court is able to enter a final decision will use the method of attachment[扣押]. By attachment, the plaintiff has the property of the defendant seized, pending[在等待…之际] the outcome of the lawsuit.
Writs of execution, garnishment and attachment proceedings are governed by state statutes. These statutes exempt[免除] certain property from writs of execution and garnishment and provide methods for defendant to set aside attachment.
Translate the following sentences into English
1． 每一个司法制度都规定由一个上诉法院复审审判庭的判决。 2． 一般来说当事人有权向至少一个上级法院对判决提出上诉。 3． 扣押程序是用于防止被告处置其财产。
4． 当进一步的程序的期限终止时，判决就成为终审。
5． 判决债权人可以留置第三方欠判决债务人的债，如工资，银行帐号等等。 6． 执行令，留置令或扣押令都得服从成文法的限制，这些限制使被告的某些财产免受这些程序的影响。
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English for the Legal Profession
Chapter 15 Basic Categories of Property Law
Each society has a different conception of the rights of the individual and rights of the group. A nation’s property law usually reflects its basic attitude to individual and group rights. For example, the property law of socialist countries is based on the idea that the property should be held for the benefit of all citizens rather than for the benefit of particular individuals. In these countries, only the government can own the “means of production”. In capitalist societies, on the other hand, the means of production are owned by individuals. Capitalists generally believe that the common good is advanced when individual self-interest is channeled toward the common good, perhaps indirectly. The law of the United States recognizes private ownership of property.
Several classes of property are recognized by the property law. These classes generally determine which particular body of law will govern the ownership, transfer of ownership, taxation and financing of the property. The major categories of property are real property, personal property, and intellectual property.
Real property or realty is land and things immovably attached to the land. The basic test for identifying real property is whether a tangible thing is movable in a practical sense. A house can be moved, but because it requires a great effort to do so, the law views it as immobile. Similarly, something permanently attached to a house, such as an under-the –counter dishwasher, is viewed as immobile, and is therefore real property.
Personal property or personalty, is something that is both tangible and mobile. Cars, ships, shoes, suits, and watches are tangible and mobile. Thus they are personal property. Many items change legal status with differing uses. For example, wood is realty while still part of a tree in the ground, personalty when cut into studs, and realty when nailed into the fence of a house under construction. Since tangible property can change status, the law has evolved other tests besides mobility to distinguish real and personal property in close cases. They are tests of annexation, adaptation and intention.
The annexation test is a refinement of the basic test of mobility. If something tangible is permanently attached to realty, it is considered a part of the realty. If it is not permanently attached to the realty, then it is mobile and usually considered personalty. Structures or buildings are part of the real property only if they are permanently attached to the land. Thus, a house trailer sitting on its wheel is usually considered personal property. If the removal of a thing from a structure damages the structure, the thing is probably realty. A freestanding
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English for the Legal Profession
store is personalty, but a built-in store is realty under the test of annexation.
The importance of a thing to the functioning of a structure may cause it to be treated as real property. Thus if a thing is essential to the operation of a building, it may be real property even though it is not permanently attached. This is the test of adaptation. For example, keys to the house are considered realty under the test of adaption.
The intention of the person attaching something to a structure may determine whether the thing is real or personal. If a landlord and a tenant agree that a built-in-dish-washer installed by the tenant can be removed at the end of the lease, then, with respect to the two parties, it will be treated as personalty. Without such an agreement, the built-in-dish-washer would be treated as realty.
If a thing, like a built-in store, that was once personal becomes real property, we call it a fixture. The fixtures attached by business tenants are called trade fixtures. They are treated not as realty, but as personalty, because the courts presume the parties intend that they are not permanently attached.
Intellectual property is intangible and is often created and defined by law. Patents, trade secrets, copyrights and trademarks all fall in this category. A patent protects invention. Trades secrets are items of information such as customer lists, formulae, and even recipes that are useful to a business and kept secret by the business. A copyright protects original works, such as books, advertisements, musical works and radio or television shows. A trademark is a name used to distinguish some goods form others.
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English for the Legal Profession
Chapter 16 Contract Formation and Classification
A contract is, first of all, an agreement. It is a magnification of the mutual assent of the parties. The mutual assent, or the agreement, is typically reached when one party (the offeror) makes an offer to another party (the offeree) who accepts the offer. Offer and acceptance are the acts by which the parties come to a “meeting of the minds.”
When there is no meeting of the minds, there is no valid contract. The determine whether the minds have met, both offer and acceptance must be analyzed. The offeror may have had something in mind quite different from that of the offeree. Notwithstanding, the intention of the parties is determined not by what they think, but by their outward conduct; that is, by what each leads the other reasonably to believe.
For an agreement to be a valid contract, the contracting parties must have legal capacity to enter into transactions. A party lacks capacity to contract if he is incapable of a full understanding of his rights and the nature, purpose and legal effects of the contract. Capacity-to-contract issues generally involve minors, mental incompetence, intoxicated persons and drug addicts.
A contract is also a bargain. This means that a contractual promise is never made as a gift and must be based on consideration. A contract without consideration is not binding and does not furnish a claim.
The doctrine of consideration, requires that the promisor receive a benefit for the promise he makes and the promise, while gaining the benefit of the promise, relinquish something or incur a detriment. Consideration may exist in the form of performance or in a counterperformance.
Two well-established general principles are very helpful in determining whether consideration really exists. One is that what matters is the legal sufficiency of the consideration in contrast to its economic adequacy. Another is that past performance cannot be consideration for present promise.
The above discussion shows that a contract may be void or voidable if 1) one of the parties or both lack capacity; 2) the necessary meeting of the minds does not exist, or the consent of one of the parties was brought about by fraud, misrepresentation, or by duress, or if the agreement is founded on mistake; or 3) the contractual promise is not supported by consideration. Another important factor that may affect the validity of a contract is illegality. If a contract is made for an illegal purpose, or if its content is tainted by illegality, it does not exist in the eye of law. Closely related to illegality is the concept of
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