BEC初级口语素材5
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合同英语 Part I Objectives Main characteristics of a contract 合同的特性 Contract review: Checking for key elements of acontract 合同的重要组成部分 Commonly used legal terms 常用法律用语 Some tips on easy understanding of contract lingo 掌握合同专用语的一些相关技巧 Part II The How-Tos What You Should Know About a Contract Why Do I Need A Contract? 为什么需要合同? You don’t have to be a lawyer to reap the benefits of writing your own contracts. A littlecommon sense goes a long way and a good contract does more that just cover your rearshould you end up in court. Written correctly, a contract can demonstrate businessprofessionalism, weed out insincere clients, organize your duties, speed up your pay, help youget insurance, avoid disputes, make mutual obligations clear and keep you out of court. What is a Contract? 什么是合同? A contract is a legally binding agreement. Contracts are either formal (written) or simple(verbal). It may be a bilateral contract, performed by both parties, or unilateral, a promise inexchange for an act or performance of a task or deed. Contracts may be voided, that is, theparties may agree to nullify the contract or it may be voided by a court of law. These are some of the characteristics of a contract. Elements of a Good Contract 合同的要素 Every good contract has four essential component parts. They are: offer andacceptance, mutuality and consideration, competent parties, and a legal object. An offer is communicated verbally or in writing and has definite terms. Mutuality indicatesduties or actions are performed by each party. Consideration means that something of value isexchanged. Competent parties speak to the mental and legal capacity of the parties involvedin making the contract. A legal object connotes a legal objective and no criminal intent. Contracts don’t have to be formal: a letter of agreement is a contract too. In fact, acontract can be anything — it can be oral, can be written on a napkin(though not advised), canbe a purchase order or a combination of documents exchanged between parties. It has noparticular form. Written is better, though, then the terms are less often questioned. To construct your own contract, specify the issues and conditions that matter.Independent consultants, for example struggle with Internal Revenue Service rules thatthreaten to reclassify them as employees. In an independent contractors contract state “thecontractor is an independent contractor and not an employee.” That will protect the businessidentity and relieve your client of the fear that they will end up having to pay your healthinsurance premiums and Social Security taxes. Include specific services your are to perform and deadlines. Detail a payment schedulethat is suitable to both parties. If intellectual property (i.e., software, reports, manuals) isinvolved, include details about who owns the rights and the extent of those rights. If your workis project-based, include a description of when the job will end. That can be the delivery ofthe final report, etc. So, how do you write your own contract? It is easier than it may appear. Several softwarepackages exist to help you with the chore. Look also for printed forms. However, they are notas easily customized to your needs as software packages. Get a good set of forms, fill them in and spend less on lawyers. Your understanding of theprinciples of contracts, their uses and limitations are sure ways to cut legal bills or avoid themaltogether. It will also prevent murky situations in which inexperienced professionals findthemselves and to avoid litigation. Contract Review - A checklist for you Start evaluating your contract by doing a quick check of the critical basic elements. Inmost states, for a written contract to be enforceable, it must at a minimum: Identify the Parties. Many form contracts used by small businesses include spaces for thenames of the contracting parties, but in a harried workplace, these blocks don’t always get filledin. Avoiding a loss in a contract dispute because the parties to the contract have not beenidentified should be a "no brainer." Simply make sure that you and your employees ALWAYS(legibly, if done by hand) insert the names of the parties in the appropriate spaces on thecontract. Describe the Subject Matter. A contract must adequately describe the subject matter ofthe agreement. In a contract for services, for in stance, the contract should state that thecontract is for the performance of services and those services should be clearly described.How ever, if the contract is for the sale of goods, it should clearly indicate that the partieshave agreed to a sale of goods. Making it clear that the parties understood and agreed inadvance that the contract was for the sale of goods, not services, or vice versa, will make surethat the correct body of law is applied in the event of a dispute. For example, the UniformCommercial Code (adopted in some form by all states and known as the UCC) applies only tothe sale of goods. All other types of contracts are generally governed by the more impreciseand varied statutory and common law of each state. In some cases, it is not always clearwhether the contract is for the sale of goods or services. If there is any doubt, you shouldconsult an attorney to determine how to characterize the description of the subject matterof your contract. ·State the Material Terms. Every contract must state the material terms and conditions ofthe contract. Under the Uniform Commercial Code the only material term necessary for anenforceable contract is a term stating the quantity of goods to be sold. In the event of adispute, the Uniform Commercial Code permits a court to fill in the unstated or missing termswith what the court deems to be a reasonable price, quality, color, delivery date, interestrate, etc. ·Include a Signature. Every written contract must be signed by the party to be charged inthe event of a breach. What this means is that if the seller eventually requires enforcement ofa contract against a buyer, the contract must have been signed by the buyer. Conversely, ifthe buyer wants to force a seller to comply with the terms of a contract, the contract mustbear the seller’s signature. A signature by the buyer of goods or services is critical evidencethat he or she agreed to the terms of the contract and intended to be bound by them. Mostpre-printed form contracts provide the necessary spaces for signatures. Fine Tuning After checking your contract for the basic elements, consider some of the following moreadvanced touches to tweak your contract into better form: ·Integration or Merger Clause. Does the contract contain some language to the effect thatthe terms contained in the written contract are the only terms agreed to between the parties?Including such language can preclude a party, in the event of a dispute, from arguing thatadditional terms were agreed to orally, or by some other means, at the time the contract wasformed. The language could be as simple as stating “This Agreement constitutes the soleagreement of the parties.” ·Choice of Law Clause. Specifying in advance, within the body of the agreement itself, whichstate’s law will be used in the event of a dispute is a prudent move, for businesses withcustomers in more than one state. Litigating the same contract in different states under eachstate’s unique body of contract law can produce widely differing results. By insuring that onlya single state’s law is applied, the drafting party can know in advance with some degree ofconfidence how certain disputes may be resolved. A typical choice of law clause might say: “This Agreement shall be construed and interpreted in accordance with the laws of the State ofOklahoma.” ·Arbitration Clause. It is possible to keep contract disputes from going to court at all byincluding language in the contract requiring the parties to submit any disputes to arbitration.Arbitration is usually much less expensive and faster than traditional litigation. An arbitrationclause in a contract might say: “Any controversy or claim arising out of or relating to thisAgreement shall be settled by arbitration in Oklahoma City, Oklahoma, by and in accordancewith the Rules of the American Arbitration Association.” Form contracts are critical tools for any business which buys or sells goods or services.They should be reviewed periodically to make sure they comply with the law and provide thedrafter with the terms it needs to do business. Consult with an attorney before adding orchanging any language in your existing contracts. 相关资料 |
