1、最新下载(NewD) 中国最大、最专业的学习资料下载站 转载请保留本信息最新下载(NewD) 中国最大、最专业的学习资料下载站 转载请保留本信息案例讨论 1 Lucy et al. v. Zehmer et al. 84 S.E. (2d) 516, 196 Va. 493 (1954)Complainants instituted this suit to have specific performance of a contract by which itwas alleged the defendants had sold to W.O. Lucy for $50,000 a tract
2、 of land known as the Ferguson farm, owned by defendant A. H. Zehmer. J. C. Lucy, the other complainant, is a brother of W. O. Lucy, to whom W. O. Lucy transferred a half interest in his alleged purchase.The instrument sought to be enforced was written by A. H. Zehmer on December 20, 1952, in these
3、words: “We hereby agree to sell to W. O. Lucy the Ferguson farm for $50,000, title satisfactory to buyer,” signed by both defendants.The answer of A. H. Zehmer admitted that at the time mentioned W.O. Lucy offered him $50,000 cash for the farm but that he (Zehmer) considered that the offer was made
4、injest; that so thinking, and both he and Lucy having had several drinks, he wrote out the “memorandum” quoted above and induced his wife to sign it; that he did not deliver the memorandum to Lucy, but Lucy picked it up, read it, put it in his pocket, and attempted to offer him $5.00 to bind the bar
5、gain; that he refused to accept, and, realizing for the first timethat Lucy was serious, assured him that he had no intention of selling the farm, and that he whole matter was a joke. Lucy left the premises insisting that he had purchased the farm.On Monday, December 22nd, Lucy engaged an attorney t
6、o examine the title. The attorney reported favorably on December 31st, and on January 2nd Lucy wrote to Zehmer stating that the title was satisfactory and that he was ready to pay the purchase price in cash,and asking when Zehmer would be ready to close the deal. Zehmer replied by letter asserting t
7、hat he had never agreed or intended to sell the farm. Thereupon complainants brought this suit. The issue is whether the agreement was entered into with contractual intent orwas merely a joke.Buchanan, J. In his testimony Zehmer claimed that he “was high as a Georgia pine,” and that the transaction
8、“was just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most.” That claim is inconsistent with his attempt to testify in great detail as to what was said and what was doneThe record is convincing that Zehmer was not intoxicated to the extent of being unable to
9、 comprehend the nature and consequence of the instrument he executed, and hence that instrument is not to be invalidated on that ground.The evidence is convincing also that Zehmer wrote two agreements, the first one beginning “I hereby agree to sell”; that Lucy told him that he wanted Zehmers wife t
10、o sign the memorandum; and that Zehmer tore up the first agreement and then made a second one which read “We hereby agree to sell.” Both he and his wife signed the second memorandum.The appearance of the contract; the fact that it was under discussion for forty minutes or more before it was signed;
11、Lucys objection to the first draft because it was written in the singular and he wanted Mrs. Zehmer to sign it also; the rewriting to meet that objection and the signing by Mrs. Zehmer; the discussion of what was to be included in the sale; the provision for examination of the title; the completenes
12、s of the instrument that was exe最新下载(NewD) 中国最大、最专业的学习资料下载站 转载请保留本信息最新下载(NewD) 中国最大、最专业的学习资料下载站 转载请保留本信息cuted; the taking possession of it by Lucy with no request or suggestion by either of the defendants that he give it back, are facts which furnish persuasive evidence that the execution of the con
13、tract was a serious business transaction rather than a casual, jesting matter, as defendants now contend.In the field of contracts, as generally elsewhere, “We must look to the outward expression of a person as manifesting his intention rather than his secret or unexpressed intention. The law impute
14、s to a person an intention corresponding to the reasonable meaning of his words and acts.” First Nat. Exchange Bank of Roanoke v. Roanoke Oil Co., 169 Va. 99, 192 S.E. 764.The mental assent of the parties is not requisite for a formation of a contract. If thewords or other acts of one of the parties
15、 have but one reasonable meaning, his undisclosed intention is immaterial expect where an unreasonable meaning which he attaches to his manifestations is known to the other party.An agreement or mutual assent is of course essential to a valid contract but the law imputes to a person an intention cor
16、responding to the reasonable meaning of his words and acts. So a person cannot set up that he was merely jesting when his conduct and words would warrant a reasonable person in believing that he intended a real agreement. Reversed. 思考题：1你是否认为， 不管被告喝了多少酒， 醉到什么程度， 判决结果都会对他不利？2被告先后签了两份协议对判决结果产生了什么影响？3法
17、官在其判决意见的第三自然段列举了一系列的事实， 其目的何在？4如何理解“The law imputes to a person an intention corresponding to the reasonable meaning of hiswords and acts.”?5你认为本案被告 “表达出来的意思” 与 “保留与内心的意思” 是相同的， 还是不同的本案的 issue 为：“Whether or not the final agreement was entered into with contractual intent or was merely a joke.” 就是说 Z
18、ehmer 后来所立的协议是否是一有拘束力的合同， 并且其后来无意出售农场是否受到此协议的约束。我的分析：“The evidence is convincing also that Zehmer wrote two agreements, the first one beginning “I hereby agree to sell”; that Lucy told him that he wanted Zehmers wife to sign thememorandum; and that Zehmer tore up the first agreement and then made a
19、second one which read “We hereby agree to sell.” Both he and his wife signed the second memorandum.” 可以说明， 协议的重新拟订的过程确实是严肃认真的， 并且做到了双方的合意。“ that so thinking, and both he and Lucy having had several drinks, he wrote out the “memorandum” quoted above and induced his wife to sign it; that he did not de
20、liver the memorandum to Lucy, but Lucy picked it up, read it, put it in his pocket, and attempted to offer him $5.00 to bind the bargain;” 而且可以表明， Zehmer 虽然喝了酒， 但绝对没有到不能理解协议内容的程度。 综上， 被告 Zehmer 虽没有出卖的意思， 但其外在行为已足使原告或者其他人相信其本人有订约的意思。所以，最新下载(NewD) 中国最大、最专业的学习资料下载站 转载请保留本信息最新下载(NewD) 中国最大、最专业的学习资料下载站 转
21、载请保留本信息“We must look to the outward expression of a person as manifesting his intention rather than his secret or unexpressed intention. The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.” 我们必须看当事人意图的外在表示， 而不是其内在的未表示出来的秘不可测的意图。1 思考题 1 ， 回答是否定的， 也就
22、是说不管被告喝了多少酒， 醉到什么程度， 判决结果不一定都对他不利， 结合本案， 如果被告喝酒喝得烂醉， 以致于失去了理解协议内容的能力的话， 我想判决就倾向于对他有利了。2 。 被告先后签了两份协议， 如前所述， 有理由使法官相信此一订立协议的过程是严肃认真的， 且已做到了双方的合意， 为一有效的有约束力的合同。3 。 其目的是为了说明订立合同有双方合意的证据， 并不是开玩笑。4 。 结合本案， 应理解为， 法律所赋予人们的同意的意思表示应该以其意图的外在表示为准， 而不应考察其未表示出来的真实的内心意思。5 。 我认为本案 “表达出来的意思” 与 “保留于内心的意思” 是不同的， 也就是说
23、， 其实 Zehmer 内心是不愿意为此一订立合同的行为的， 但是， 如前所述， 第三人有理由通过 Zehmer 的言行相信他有订合同的意图， 况且， 基于诚实信用原则， 如果允许人人在订好合同后在反悔， 那么有关交易岂不变得混乱了！luiswu1983 I agree with eric in all aspects but one,which is the last question presented above.why the defendant refused to perform the contract which has been legally formed betweent
24、he two parties we do not know upon the whole context of this judgement.but one must be emphasized is that the outward expression of the defendant is tandemwith his secret or unexpressed intention.since the intention of defendant for concludingthis contract is so serious(the reason is clearly claifie
25、d by eric above) and the defendant,although drinks so much,can understand the context and consequences of this contractand his wife who is an resonable person had signed her name on the agreement collaterally,we has no reasaon to conclude that outward expression of the defendant wasin contravention
26、of his secret or unexpressed intention.welcome to discuss below!谢谢 ERIC，我也一直想问这个案子，但太怕麻烦。我的疑问是1.被告的妻子的签名是否具有法律约束力，（是不是还要考虑房产是否为夫妻共同财产的问题，其妻是否有代理权的问题 我晕，可能我把问题复杂化了），如果有约束力，那被告就是喝的再醉，在判决也对他不利了。（但奇怪，原告怎么没提这点呢，可能还有一些其他事实罢？）2.我觉得本案还有一个重要事实就是，当原告提出支付 5 美金作为对价时，被告意识到原告认真了，所以拒绝了，并说他是开玩笑的。他之所以没有进一步行动以阻止合同生效，
27、就可以归结为当时的被告的精神状况（喝了很多酒），所以我认为，被告隐藏于心的意思与表达在外的意思是不同的。（但法官并没有强调这个事实，如果我是法官我可能就要作出有利被告的判决了，呵呵）既然被告已明确告诉了原告他是开玩笑的，为什么原告还可以合理以为合同成立？大家怎么认为呢？ 其实着案子除了外在表现出的客观真实意思外-客观标准我认为还涉及了缔约能力醉酒的人是否有缔约能力-认识标准（cognitive standard)，他是否有能力合理的理解交易的性质和后果见笑了！ 最新下载(NewD) 中国最大、最专业的学习资料下载站 转载请保留本信息最新下载(NewD) 中国最大、最专业的学习资料下载站 转载请
28、保留本信息从英美法上说醉酒的人属于缺乏定约能力的人,依美国的法例,酗酒者订立的合同原则上有强制执行力,但如果酗酒者在定约时由于醉酒而失去了姓为能力,则可要求撤销合同.所以还是要具体分析的. 案例讨论 2 二 “格式之战”Butler MachineTool Co. v. ExCell-O Corp.1979 1 W. L. R. 401, 1979 1 ALL E. R. 956 (C. A.)On 23rd May 1969, in response to an inquiry by the buyers, the sellers quoted a pricefor a machine to
29、ol of 75,535, with delivery to be given in 10 months. On the back of their offer were a number of terms and conditions, which stipulated that they were to “prevail over any terms and conditions in the buyers order”. One of the conditions purported to allow the seller to charge the buyers the price f
30、or the machine prevailing at the time of delivery. The buyers replied by placing an order for the purchase of the machine. Their documentnbspstipulated that the order was subject to a number of terms and conditions which differed from those put forward by the sellers and which, in particular, made n
31、o provision for any increase in price. At the foot of the buyers order form, there was a tear-off slip upon which the sellers were invited to accept the order “on the terms and conditions stated thereon”. On 5th June 1969, the sellers completed and returned this slip to the buyers with a letter stat
32、ing that the buyers order was being entered in accordance with the sellers quotation of 23rd May 1969. When the sellers ultimately came to deliver the machine, they claimed to be entitled to an additional 2,892, under the price formula of their original offer. The buyers took the position that their
33、 order prevailed and that there was accordingly a fixed price contract. The sellers action for damages succeeded at trial on the ground that the price variation clause in the sellers offer was a term which was intended to prevail.Lord Denning M. R. No doubt a contract was concluded. But on what term
34、s? The sellers rely on their general conditions and on their last letter which said in accordance with our revised quotation of 23rd May (which had on the back the price variation clause). The buyers rely on the acknowledgment signed by the sellers which accepted the buyers order on the terms and co
35、nditions stated thereon (which did not include a price variation clause). If those document are analyzed in our traditional method, the result would seem to me to be this: the quotation of 23rd May 1969 was an offer by the sellers to the buyers containing the terms and conditions on the back. The or
36、der of 27th May 1969 purported to be an acceptance of that offer in that it was for the same machine at the same price, but itcontained such additions as to cost of installation, date of delivery and so forth, that it was in law a rejection of the offer and constituted a counter-offer. That is clear
37、 from Hyde v. Wrench supra, at 33. As Megaw J said in Trollope and, if they are not objected to by the other party, he may be taken to have agreed to them. Such was British Road Services Ltd. V. Arthur V. Crutchley * Co., 1968 1 All E. R. 8ll at 816-817 (C.A.) per Lord Pearson; and the illustration
38、given by Professor Guest in Ansons Law of Contract 24th ed. (1975), 37-38 where he says that “the terms of the contract consist of the terms of the offer subject to the modifications contained in the acceptance”. That may however go too far. In some cases, however, the battle is won by the man who g
39、ets the blow in first. If he offers to sell at a named price on the terms and conditions stated on the back and the buyer orders the goods purporting to accept the offer on an order form with his own different terms and conditions on the back, then, if the difference is so material that it would aff
40、ect the price, the buyer ought not to be allowed to take advantage of the difference unless he draws it specifically to the attention of the seller. There are yet other cases where the battle depends on the shots fired on both sides. There is a concluded contract but the forms vary. The terms and co
41、nditions of both parties are to be construed together. If they can be reconciled so asto give a harmonious result, all well and good. If differences are irreconcilable, so that they are mutually contradictory, then the conflicting terms may have to be scrapped and replaced by a reasonable implicatio
42、n. In the present case the judge thought that the sellers in their original quotation got their blow in first, especially by the provision that These terms and conditions shall prevail over any terms and conditions in the Buyers order. It was so emphatic that the price variation clause continued thr
43、ough all the subsequent dealings and that the buyer must be taken to have agreed to it. I can understand that point of view. But I think that the document have to be considered as a whole. And, as a matter of construction, I think the acknowledgment of 5th June 1969 is the decisive document It makes
44、 it clear that the contract was on the buyers terms and not on the sellers terms; and the buyers terms did not include a price variation clause. 最新下载(NewD) 中国最大、最专业的学习资料下载站 转载请保留本信息最新下载(NewD) 中国最大、最专业的学习资料下载站 转载请保留本信息I would therefore allow the appeal and enter judgment for the buyers.Lawton and Bri
45、dge L.JJ. delivered concurring judgments.思考题：1 。 为什么法官说 “No doubt a contract was concluded?”2 。 对于“格式之战”的不同解决方法对要约人和受要约人的利益有何影响？综合本案， 我认为原告（seller）于 23rd May, 1969 年的文书为一要约， 并且包含了“prevail over any terms and conditions in the buyers order.” 条款； 被告（buyer）于27th May, 1969 年的回复， 正如案中所述， 实际上已构成一反要约（counte
46、r-offer）， 并且包含有“on the terms and conditions thereon” 的条款， 而且， 其中不包括调整价格的条款（which did not include a price variation clause）。 尔后在 5th May, 1969 年， 原告接受了被告这一反要约， 但在其中原告只提及品质及价格的有关条件， 并未对众多的条款加以明确“The reference to the quotation of 23rd May 1969 referred only to the price and identity ofthe machine”,“The
47、 better way is to look at all the document passing between the parties” , 此一举动并不能使原告适用其于 23rd May 1969 所加的条款“prevail over any terms and conditions in the buyers order.”, 也就是说原告并不能因此而有权调整价格， 所以， 应该以被告的反要约为准来确定合同条款的适用， 法院就是这样判定的。思考题：1 我认为法官的意思是， 不管合同的有关条款的适用以哪一份合同格式为准， 在本案中， 合同业已成立， 即其中要约与承诺两个因素都已具备。2
48、 。 对于“格式之战 ”的不同解决方法， 在本案中， 包括以下三种情况：（1）。 “the battle is won by the man who fires the last shot”， 也就是说要是另一方不反对而接受有关合同的格式文件的话， 那么合同应以此格式为准而约束当事人双方。-“He is the man who puts forward the latest term and conditions; and, if they are not objected to by the other party, he may be taken to have agreed to the
49、m.”（2）。 “the battle is won by the man who gets the blow in first.”， 在此种情形之下， 比如说卖方出示一 offer 的合同格式文件， 而买方也回复其自身的另一不同的格式文件， 那么除非当买方充分地提出所有的条款都遵循己方为准， 则一般来说都对卖方有利， 合同格式应以原先的卖方的为准。-“If he offers to sell at a named price on the terms and conditions stated on the back and the buyer orders the goods purporting to accept the offer on an order form with his own different terms and conditions on the back, then, if the differ
