国际商法3 Enforceability of Contract.ppt

Unit 3 Enforceability of Contract 中国法下合同生效的条件 1） 缔约能力 2）意思真实 3）不违反法律和公序良俗 4）符合形式要求 Capacity of Parties Capacity means the ability to incur legal obligations and acquire legal rights. Today, the primary classes of people who are considered to lack capacity are minors, persons suffering from mental illnesses or defects, and intoxicated persons. Effect of Lack of Capacity Normally, a contract in which one or both parties lack capacity because of infancy, mental impairment, or intoxication is considered to be avoidable. Capacity of Minors A minor is a person under the age of 18. The law usually adopts a particularly protective attitude towards minors. The exercise of this right to avoid a contract is called disaffirmance. The right to disaffirm is personal to the minor. That is , only the minor or a legal representative such as a guardian may disaffirm the contract. In UK The general rule is that a minor is not bound by a contract which he enters into during his minority. But the rule is subject to some exceptions. a. A contract to supply a minor with necessaries is binding upon the minor where the contract as a whole is for the benefit of the minor. b. A minor is bound by a contract of employment if that contract is generally for his benefit. c. Certain contracts with minors are not void but only avoidable, that is, the contract is valid and binding upon the minor unless he repudiates liability before majority or within a reasonable time thereafter. Exercise: Nash v. Inman A tailor sold 11 fancy waistcoats to a minor, who was Cambridge undergraduate. The minor refused to pay for them. The tailor sued to the court? If you were the judge, who would you support? Capacity of Mentally Impaired Persons The contracts of people who are suffering from a mental defect at the time of contracting are usually considered to be avoidable. But the mental impaired person needs to prove his mental capacity was inferior when he made the decision. C