CONTENT目 录 (共十六章385条) Chapter 1 MEANING OF TERMS第一章 合同条款的含义 Chapter 2 FORMATION OF CONTRATCTS------PARTIES AND CAPACITY 第二章 合同的订立当事人及其缔约能力 Chapter 3 FORMATION OF CONTRACTS---MUTUAL ASSENT 第三章 合同的订立
CONTENT目 录 (共十六章385条)
Chapter 1 MEANING OF TERMS第一章 合同条款的含义
Chapter 2 FORMATION OF CONTRATCTS------PARTIES AND CAPACITY
Chapter 3 FORMATION OF CONTRACTS---MUTUAL ASSENT
CHAPTER 4 FORMATION OF CONTRACTS—CONSIDERATION
CHAPTER 5 THE STATUTE OF FRAUDS第五章 防止欺诈条例
CHAPTER 6 MISTAKE第六章 错误
CHAPTER 7 MISREPRESENTATION, DURESS AND UNDUE INFLUENCE
CHAPTER 8 UNENFORCEABILITY ON GROUNDS OF PUBLIC POLICY
CHAPTER 9 THE SCOPE OF CONTRACTUAL OBLIGATIONS
CHAPTER 10 PERFORMANCE AND NON-PERFORMANCE
CHAPTER 11 IMPRACTICABILITY OF PERFORMANCE AND
FRUSTRATION OF PURPOSE
CHAPTER 12 DISCHARGE BY ASSET OR ALTERATION
CHAPTER 13 JOINT AND SEVERAL PROMISORS AND PROMISEES
CHAPTER 14 CONTRACT BENEFICIARIES第十四章 合同受益人
CHAPTER 15 ASSGINEMNT AND DELEGATON
CHAPTER 16.REMEDIES第十六章 违约救济
Chapter 1 MEANING OF TERMS第一章 合同条款的含义
§1. CONTRACT DEFINED 合同定义
A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.
§2. PROMISE; PROMISOR; PROMISEE. 允诺；允诺人；受允诺人
(1) A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.
(2) The person manifesting the intention is the promisor.作出该意思表示的人是允诺人
(3) The person to whom the manifestation is addressed is the promisee.
(4) Where performance will benefits a person other than the promisee, that person is beneficiary.
§3. AGREEMENT DEFINED; BARGAIN DEFINED协议的定义；
An agreement is a manifestation of mutual assent on the part of two or more persons. A bargain is an agreement to exchange promises or to exchange a promise for a performance or to exchange performances.
§4. How a Promise May Be Made 允诺如何作出
A promise may be stated in words either oral or written, or may be inferred w holly or partly from conduct.
§5. Terms of Promise, Agreement, or Contract允诺，协议或合同的条件
(1) A term of promise or agreement is that portion of the intention or assent manifested which relates to a particular matter.
(2) A term of contract is that portion of the legal relations resulting from the promise or set of promises which relates to a particular matter, whether or not the parties manifest an intention to create those relations.
§6. Formal Contracts要式合同
The following types of contracts are subject in some respects to special rules that depend on their formal characteristics and differ from those governing contracts in general:
(1) Contracts under seal, 盖印合同
(2) Recognizances, 保证书
(3) Negotiable instruments and documents,.可流通票据和单据
（4）Letters of credit信用证
§7. Voidable contracts可撤消的合同
A voidable contract is one where one or more parties have the power, by a manifestation of election to do so, to avoid the legal relations created by the contract, or by ratification of the contract to extinguish the power of avoidance.
§8. Unenforceable Contracts不能强制执行的合同
An unenforceable contract is one for the breach of which neither the remedy of damages nor the remedy of specific performance is available, but which is recognized in some other way as creating a duty of performance, though there has been no ratification.
Chapter 2 FORMATION OF CONTRATCTS------PARTIES AND CAPACITY
§9. Parties Required合同当事人
There must be at least two parties to a contract, a promisor and a promisee, but there may be any greater number.
§10. Multiple Promisors and Promisees of the Same Performance
(1) Where there are more promisors than one in a contract, some or all of them may promise the same performance, whether or not there are also promises for separate performances.
(2) Where there are more promises than one in a contract, a promise may be made to some or all of them as a unit, whether or not the same or another performance is separately promised to one or more of them.
§11. When a Person May Be Both Promisor and Promisee
A contract may be formed between two or more persons acting as a unit and one or more but fewer than all of these persons, acting either singly or with other persons.
§12. Capacity to Contract缔约能力
(1) No one can be bound by contract who has not legal capacity to incur at least voidable contractual duties, Capacity to contract may be partial and its existence in respect of a particular transaction may depend upon the nature of the transaction or upon other circumstances.
(2) A natural person who manifests assent to a transaction has full legal capacity to incur contractual duties thereby unless he is
一个自然人如果就某项 交易作出同意的意思表示，则该自然人享有完全合法的创设合同义务的缔约能 力，除非该自然人是
(a) under guardianship, or处于监护之中，或
(b) an infant, or为成年人，或
(c) mentally ill or defective, or有精神疾病或精神缺陷者，或
(d) intoxicated. 醉酒者。
§13. Persons Affected by Guardianship受监护的人
A person has no capacity to incur contractual duties if his property is under guardianship by reason of an adjudication of mental illness or defect.
Unless a statute provides otherwise , a natual person has the capacity to incur only voidable contractual duties until the beginning of the day before the person’s eighteenth birthday.
§15. Mental Illness or Defect有精神病或精神缺陷的人
(1) A person incurs only voidable contractual duties by entering into a transaction if by reason of mental illness or defect
(a) he is unable to understand in a reasonable manner the nature and consequences of the transaction, or
(b) he is unable to act in a reasonable manner in relation to the transaction and the other party has reson to know of his condition.
(2) Where the contract is made on fair terms and the other party is without knowledge of the mental illness or defect, the power of a voidance under Subsection (1) terminates to the extent that the contract has been so preformed in whole or in part or the circumstances have so changed that a voidance would be unjust. In such a case a court may grant relief as justice requires.
§16. Intoxicate Persons醉酒的人
A person incurs only voidable contractual duties by entering into a transaction if the other party has reason to know that by reason of intoxication
(a) he is unable to understand in a reasonable manner the nature and consequences of the transaction, or
(b) he is unable to act in a reasonable manner in relation to the transaction,
Chapter 3 FORMATION OF CONTRACTS---MUTUAL ASSENT
TOPIC 1. IN GENRERAL主题一 一般规定
§17. Requirement of a Bargain交易磋商的条件
(1) Except as stated in Subsection (2), the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange an d a consideration.
(2) Whether or not there is a bargain a contract may be formed under special rules applicable to formal contracts or under the rules stated in §§82-94.
TOPIC 2, MANIFESTATION OF ASSENT IN GERNERAL主题二 意思表示的一般条款
§18. Manifestation of Mutual Assent意思表示一致
Manifestation of mutual assent to an exchange requires that each party make a promise or begin or render a performance.
§19. Conduct as Manifestation of Assent依意思表示实施的行为
(1) The manifestation of assent may be made wholly or partly by written or spoken words or by other acts or by failure to act.
(2) The conduct of a party is not effective as a manifestation of his assent unless he intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents.
(3) The conduct of a party may manifest assent even though he does not in fact assent. In such cases a resulting contract may be voidable because of fraud, mistake, or other invalidation cause.
§20. EFFECT OF MISUNDERSTANDING误解的效力
(1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and
(a) neither party knows or has reason to know the meaning attached by the other; or
(b) each party knows or each party has reason to know the meaning attached by the other.
(2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if
(a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or
(b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.
§21. INTENTION TO BE LEGALLY BOUND具有法律拘束力的意图
Neither real nor apparent intention that a promise be legally binding is essential to the formation of a contract, but a manifestation of intention that a promise shall not affect legal relations may prevent the formation of a contract.
§22. Mode of Assent: Offer and Acceptance合意的模式： 要约与承诺
(1) The manifestation of mutual assent to an exchange ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the other party or parties.
(2) A manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even though the moment of formation cannot be determined.
§23. Necessity That Manifestation Have Reference to Each Other
It is essential to a bargain that each party manifest assent with reference to the manifestation of the other.
TOPIC 3. MAKING OF OFFERS 主题三 要约的发出
§24. Offer Defined要约的定义
An offer is the manifestation of willingness to enter into a bargain, so made a s to justify another person in understanding that his assent to that bargain is invited and will conclude it.
§25. Option Contracts选择权合同
An option contract is a promise which meets the requirements for the formation of a contract and limits the promisor’s power to revoke an offer.
§26. Preliminary Negotiations订约前之商议
A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.
§27.Existence of Contract Where Memorial is contemplated
Manifestations of assent that are in themselves sufficient to conclude a contract will not be prevented from so operating by the fact that the parties also manifest an intention to prepare an adopt a written thereof; but the circumstances may show that the agreements are preliminary negotiations.
双方当事人作出意思表示要采用书面 方式缔结合同这一事实，并不影响当事人已经作出的足以导致合同缔结的意思 表示的执行；但是这种情况表明这些合意仍然属于订约前之商议。
(1) At an auction, unless a contrary intention is manifested,
(a) the auctioneer invites offers from successive bidders which he may accept or reject;
(b) when goods are put up without reserve, the auctioneer makes an offer to sell at any price bid by the highest bidder, and after the auctioneer calls for id the goods cannot be withdrawn unless no bid is made within a reasonable time;
(c) whether or not the auction is without reserve, a bidder may withdraw his bid until the auctioneer’s announcement of completion of the sale, but a bidder’s retraction does not revieve any previous bid.
(2) Unless a contrary intention is manifested, bids at an auction embody terms made known by advertisement, posting or other publication of which bidders are or should be aware, as modified by announcement made by the auctioneer when the goods are put up.
§29. To Whom an Offer is Addressed要约所指向的对象
(1) The manifested intention of the offeror determines the person or persons in whom is created a power of acceptance.
(2) An offer may create a power of acceptance in a specified person or in one or more of a specified group or class of persons, acting separately or together, or in anyone or every one who makes a specified promise or renders a specified performance.
§30. FORM OF ACCEPTANCE INVITED.承诺的形式
(1) An offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act, or may empower the offeree to make a selection of terms in his acceptance.
(2) Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances.
§31. Offer Proposing a Single Contract or a Number of Contracts
An offer may propose the formation of a single contract by a single acceptance or the formation of a number of contracts by successive acceptances from time to time.
§32. Invitation of Promise or Performance允诺或义务履行邀请
In case of doubt an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses.
(1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.
(2) The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.
(3) The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.
§34. Certainty and Choice of Terms; Effect of Performance or Reliance
(1) The terms of a contract may be reasonably certain even though it empowers one or both parties to make a selection of terms in the course of performance.
(2) Part performance under an agreement may remove uncertainty and establish that a contract enforceable as a bargain has been formed.
(3) Action in reliance on an agreement may make a contractual remedy appropriate even though uncertainty is not removed.
TOPIC 4. DURATION OF THE OFFEREE’S POWER OF ACCEPTANCE
§35. The Offeree’s Power of Acceptance受要约人的承诺能力
(1) An offer gives to the offeree a continuing power to complete the manifestation of mutual assent by acceptance of the offer.
(2) A contract cannot be created by acceptance of an offer after the power of acceptance has been terminated in one of the ways listed in §36
§36. Methods of Termination of the Power of Acceptance承诺权利终止的方式
(1) An offeree’s power of acceptance may be terminated by
(a) rejection or counter-offer by the offeree, or受要约人拒绝要约或提出反要约，或
(b) lapse of time,or期间届满，或
(c) revocation by the offeror, or要约人撤回要约，或
(d) death or incapacity of the offeror or offeree. 要约人或受要约人死亡或丧失行为能力
(2) In addition, an offeree’s power of acceptance is terminated by the non- occurrence of any condition of acceptance under the terms of the offer.
§37. Termination of Power of Acceptance Under Option Contract
Notwithstanding §§38-49, the power of acceptance under an option contract is not terminated by rejection or counter-offer, by revocation, or by death or incapacity of the offeror, unless the requirements are met for the discharge of a contractual duty.
(1) An offeree’s power of acceptance is terminated by his rejection of the offer, unless the offeror has manifested a contrary intention.
(2) A manifestation of intention not to accept an offer is a rejection unless the offeree manifests an intention to take it under further advisement.
(1) A counter-offer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer.
(2) An offeree's power of acceptance is terminated by his making of a counter-offer, unless the offeror has manifested a contrary intention or unless the counter-offer manifests a contrary intention of the offeree.
§40. Time When Rejection or Courter-offer Terminates the Power of Acceptance Rejection or counter-offer by mail or telegram does not terminate the power of acceptance until received by the offeror, but limits the power so that a letter or telegram of acceptance started after the sending of an otherwise effective rejection or counter-offer is only a counter-offer unless the acceptance is received by the offeror before he receives the rejection or counter-offer.
§41. Lapse of Time期间届满
(1) An offeree's power of acceptance is terminated at the time specified in the offer, or, if no time is specified, at the end of a reasonable time.
(2) What is a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made.
(3) Unless otherwise indicated by the language or the circumstances, and sub ject to the rule stated in §49, an offer sent by mail is reasonably accepted if a n acceptance is mailed at any time before midnight on the day on which the offer is received.
除非有相反的规定或情形，依据§49 中的规定，如果一个承诺是在受要约人收到要约当日的午夜之前的任何时候发出的，则该通过邮件的要约就应是被合 理承诺的要约。
§42. Revocation by Communication From Offeror Received By offeree An offeree's power of acceptance is terminated when the offeree receives fro m the offeror a manifestation of an intention not to enter into the proposed c ontract.
§43. Indirect Communication of Revocation撤回要约的间接通知
An offeree's power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect.
§44. Effect of Deposit on Revocability of Offer
An offer’s power of revocation is not limited by the deposit of money or other property to be forfeited in the event of revocation, but the deposit may be for feited to the extent that it is not a penalty.
§45. Option Contract Created By Party Performance of Tender
(1) Where an offer invites an offeree to accept by rendering a performance an d does not invite a promissory acceptance, an option contract is created when the offeree tenders or begins the invited performance or tenders a beginning of it.
(2) The offeror's duty of performance under any option contract so created is conditional on completion or tender of the invited performance in accordance with the terms of the offer.
§46. Revocation of General Offer一般要约的撤回
Where an offer is made by advertisement in a newspaper of other general notification to the public or to a number of persons whose identity is unknown to the offeror, the offeree’s power of acceptance is terminated when a notice of termination is given publicity by advertisement or other general notification equal to that given to the offer and no better means of notification is reasonably available.
如果要约通过广告在其他通常向公众、或要约人并不知晓其身份的人公布信息的报纸上发出，则如果终止承诺能力的通知书通过广告或发给要约人的其他类似 通知书向公众发布，并且没有更好的通知方式可以合理地加以利用，那么，受 要约人的承诺能力终止。
§47. Revocation of Divisible Offer可分要约的撤回
An offer contemplating a series of independent contracts by separate acceptances may be effectively revoked so as to terminate the power to create future contracts, though one or more of the proposed contracts have already been formed by the offeree’s acceptance.
§48. Death or Incapacity of Offeror or Offeree要约人或受要约人死亡或丧失行为能力
An offeree’s power of acceptance is terminated when the offeree or offeror di es or is deprived of legal capacity to enter into the proposed contract.
§49. effect of Delay in Communication of Offer要约传达过程中延迟的效力
If communication of an offer to the offeree is delayed, the period within which a contract can be created by acceptance is not thereby extended if the offere d knows or has reason to know of the delay, though it is due to the fault of the offeror; but if the delay is due to the fault of the offeror or to the means of transmission adopted by him, and the offeree neither knows nor has reason to know that there has been delay, a contract can be created by acceptance with in the period which would have been permissible if the offer had been dispatched at the time that its arrival seems to indicate.
TOPIC 5. ACCEPTANCE OF OFFERS主题五 要约的承诺
§50. Acceptance of Offer Defined; Acceptance by Performance; Acceptance by Promise
(1) Acceptance of an offer is a manifestation of assent to the term thereof ma de by the offeree in a manner invited or required by the offer.
(2) Acceptance by performance requires that at least part of what the offer re quests be performed or tendered and includes acceptance by a performance which operates as a return promise.
(3) Acceptance by a promise requires that the offeree complete every act essential to the making of the promise.
§51. Effect of Part Performance Without Knowledge of Offer
Unless the offeror manifests a contrary intention, an offeree who learns of an offer after he has rendered part of the performance requested by the offer m ay accept by completing the requested performance.
§52. Who May Accept an Offer有权作出承诺的人
An offer can be accepted only by a person whom it invites to furnish the consideration.
§53.Acceptance by Performance Manifestation of Intention Not to Accept
(1) An offer can be accepted by the rendering of a performance only if the off er invites such an acceptance.
(2) Except as stated in §69, the rendering of a performance does not constitute an acceptance if within a reasonable time the offeree exercises reasonable d iligence to notify of non-acceptance.
(3) Where an offer of a promise invites acceptance by performance and does not invite a promissory acceptance, the rendering of the invited performance does not constitute an acceptance if before the offeror performs his promise t he offeree manifests an intention not to accept.
如果一个允诺的要约要求通过履行义务来作出承诺，并不要求以允诺承诺 ， 则如果在要约人履行允诺之前，受要约人作出不予承诺的意思表示，则该义务 的履行并不构成一个承诺。
§54. Acceptance By Performance; Necessity of Notification to Offeror
(1) Where an offer invites an offeree to accept by rendering a performance, n o notification is necessary to make such an acceptance effective unless the off er requests such a notification.
(2) If an offeree who accepts by rendering a performance has reason to know that the offeror has no adequate means of learning of the performance with r easonable promptness and certainty, the contractual duty of the offeror is disc harged unless
(a) the offeree exercises reasonable diligence to notify the offeror of acceptance, or
(b) the offeror learns of the performance within a reasonable time, or
(c) the offer indicates that notification of acceptance is not required.
§55. Acceptance of Non-Promissory Offers非允诺要约的承诺
Acceptance by promise may create a contract in which the offeror’s performan ce is completed when the offeree’s promise is made.
§56. Acceptance By Promise; Necessity of Notification to Offeror
Except as stated in §69 or where the offer manifests a contrary intention, it is essential to an acceptance by promise either that the offeree exercise reasonable diligence to notify the offeror of acceptance or that the offeror receive the acceptance reasonably.
§57. Effect of Equivocal Acceptance模棱两可承诺的效力
Where notification is essential to acceptance by promise, the offeror is not bound by an acceptance in equivocal terms unless he reasonably understands it as an acceptance.
§58. Necessity of Acceptance Complying with Terms of Offer
An acceptance must comply with the requirements of the offer is to the promise to be made or the performance to be rendered.
§59. Purported Acceptance Which Adds Qualifications附带有限制条件的声称的承诺
A reply to an offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counter-offer.
§60. Acceptance of Offer Which States Place, Time or Manner of Acceptance
If an offer prescribes the place, time or manner of acceptance its terms in this respect must be complied with in order to create a contract. If an offer merely suggests a permitted place, time or manner of acceptance, another method of acceptance is not precluded.
§61. ACCEPTANCE WHICH REQUESTS CHANGE OF TERMS
An acceptance which requests a change or addition to the terms of the offer is not thereby invalidated unless the acceptance is made to depend on assent to the changed or added terms.
§62. EFFECT OF PERFORMANCE BY OFFEREE WHERE OFFER INVITES EITHER PERFORMANCE OR PROMISE
(1) Where an offer invites an offeree to choose between acceptance by promi se and acceptance by performance, the tender or beginning of the invited per formance or a tender of a beginning of it is an acceptance by performance.
(2) Such an acceptance operates as a promise to render complete performance.
§63. TIME WHEN ACCEPTANCE TAKES EFFECT Unless the offer provides otherwise,
(a) an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession, without regard to whether it ever reaches the offe ror; but
(b) an acceptance under an option contract is not operative until received by the offeror.
§64. ACCEPTANCE BY TELEPHONE OR TELETYPE
Acceptance given by telephone or other medium of substantially instantaneously two-way communication is governed by the principles applicable to acceptances where the parties are in the presence of each other.
§65. REASONABLENESS OF MEDIUM OF ACCEPTANCE承诺媒介的合理性
Unless circumstances known to the offeree indicate otherwise, a medium of acceptance is reasonable if it is the one used by the offeror or one customary i n similar transactions at the time and place the offer is received.
除非受要约人所知道的情形表明了相反的迹象，否则， 如果作出承诺的媒介属于要约人使用的媒介或者是在类似交易中，收到要约的 时间地点习惯使用的媒介，则该媒介就是合理的。
§66. ACCEPTANCE MUST BE PROPERLY DISPATCHED承诺必须适当地发出
An acceptance sent by mail or otherwise from a distance is not operative when dispatched, unless it is properly addressed and such other precautions take n as are ordinarily observed to insure safe transmission of similar messages.
§67. EFFECT OF RECEIPT OF ACCEPTANCE IMPROPERLY DISPATCHED
Where an acceptance is reasonably dispatched but the offeree uses means of transmission not invited by the offer or fails to exercise reasonable diligence t o insure safe transmission, it is treated as operative upon dispatch if received within the time in which a properly dispatched acceptance would normally have arrived.
§68. WHAT CONSTITUTES RECEIPT OF REVOCATION, REJECTION, OR ACCEPTANCE
A written revocation, rejection, or acceptance is received when the writing comes into the possession of the person addressed, or of some person authorized by him to receive it for him, or when it is deposited in some place which he has authorized as the place for this or similar communications to be deposit ed for him.
如果书面的要约撤回、拒绝或承诺的通知书为指定的收件人拥有，或者被授权接收此类通知书的人收到，或者如果该通知书被存放于要约人授权接收该通知书 或类似通知书的某一地点时，则应认为该书面的要约撤回、要约拒绝或承诺通知 书被收到。
§69. ACCEPTANCE BY SILENCE OR EXERCISE OF DOMINION
(1) Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only:
(a) Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation.
(b) Where the offeror has stated or given the offeree reason to understand th at assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer.
(c) Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept.
(2) An offeree who does any act inconsistent with the offeror's ownership of offered property is bound in accordance with the offered terms unless they are manifestly unreasonable. But if the act is wrongful as against the offeror it is an acceptance only if ratified by him.
§70. EFFECT OF RECEIPT BY OFFEROR OF A LATE OR OTHERWISE DEFECTIVE ACCEPTANCE
A late or otherwise defective acceptance may be effective as an offer to the or iginal offeror, but his silence operates as an acceptance in such a case only as stated in §69.
CHAPTER 4 FORMATION OF CONTRACTS—CONSIDERATION
TOPIC1. THE REQUIREMENT OF CONSIDERATION
§71. REQUIREMENT OF EXCHANGE; TYPES OF EXCHANGE
(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange f or that promise.
(3) The performance may consist of履行行为包括
(a) an act other than a promise, or行为而不是承诺，或者
(b) a forbearance, or权力之不行使或行为之容忍，或
(c) the creation, modification, or destruction of a legal relation.法律关系之创设、变更或消灭
(4) The performance or return promise may be given to the promisor or to so me other person. It may be given by the promisee or by some other person.
§72. EXCHANGE OF PROMISE FOR PERFORMANCE允诺与行为履行的交换
Except as stated in §§73 and 74, any performance which is bargained for is consideration.
除§§73 和 74 的规定外，任何经过交易磋商的行为履行均为约因。
§73. PERFORMANCE OF LEGAL DUTY法律义务的履行
Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration; but a similar performance i s consideration if it differs from what was required by the duty in a way which reflects more than a pretense of bargain.
§74. SETTLEMENT OF CLAIM请求权争议的解决
(1) Forbearance to assert or the surrender of a claim or defense which proves to be invalid is not consideration unless
(a) the claim or defense is in fact doubtful because of the uncertainty as to th e facts or the law, or
(b) the forbearing or surrendering party believes that the claim or defense may be fairly determined to be valid.....
(2) The execution of a written instrument surrendering a claim or defense by one who is under no duty to execute it is consideration if the execution of the written instrument is bargained for even though he is not asserting the claim or defense and believes that no valid claim or defense exists.
§75.EXCHANGE OF PROMISE FOR PROMISE允诺与允诺之间的交换
except as stated in §76 and 77, a promise which is bargained for is considerati on if ,but only if, the promised performance would be consideration.
除§§76 和 77 的规定外，一个经过磋商的允诺，如果，并且在只有被允诺的行为履行属于约因的情况下，才属于约因。
(1) A conditional promise is not consideration if the promisor knows at the time of making the promise that the condition cannot occur.
(2) A promise conditional on a performance by the promisor is a promise of alternative performances within §77 unless occurrence of the condition is also promised.
§77.ILLUSORY AND ALTERNATIVE PROMISE空洞和选择性的允诺
A promise or apparent promise is not consideration if by its terms the promisor or purported promisor reserves a choice of alternative performances unless
(a) each of the alternative performances would have been consideration if it a lone had been bargained for, or
(b) one of the alternative performances would have been consideration and there is or appears to the parties to be a substantial possibility that before the promisor exercises his choice events may eliminate the alternatives which would not have been consideration.
§78.VOIDABLE AND UNENFORCEABLE PROMISE可撤消的和不可强制执行的允诺
The fact that a rule of law renders a promise voidable or unenforceable does not prevent it from being consideration.
§79. ADEQUACY OF CONSIDERATION; MUTUALITY OF OBLIGATION
If the requirement of consideration is met, there is no additional requirement of
(a) a gain, advantage, or benefit to the promisor or a loss, disadvantage, or detriment to the promisee; or
(b) equivalence in the values exchanged; or交换价值的对等性；或
(c) "mutuality of obligation." “义务的相互性”。
§80. MULTIPLE EXCHANGE多重交换
(1) There is consideration for a set of promises if what is bargained for and given in exchange would have been consideration for each promise in the set if exchanged for that promise alone.
(2) The fact that part of what is bargained for would not have been consideration if that part alone had been bargained for does not prevent the whole fro m being consideration.
§81. CONSIDERATOIN AS MOTIVE OR INDUCTING CAUSE作为诱因的约因
(1) The fact that what is bargained for does not of itself induce the making of a promise does not prevent it from being consideration for the promise.
(2) The fact that a promise does not of itself induce a performance return promise does not prevent the performance or return promise from being consideration for the promise.
TOPIC 2. CONTRACTS WITHOUT CONSIDERATION主题二 没有约因的合同
§82. PROMISE TO PAY INDEBTEDNESS; EFFECT ON THE STATUTE OF LIMITATIONS
(1) A promise to pay all or part of an antecedent contractual or quasi-contractual indebtedness owed by the promisor is binding if the indebtedness is still enforceable or would be except for the effect of a statute of limitations.
(2) The following facts operate as such a promise unless other facts indicate a different intention:
(a) A voluntary acknowledgment to the obligee, admitting the present existence of the antecedent indebtedness; or
(b) A voluntary transfer of money, a negotiable instrument, or other thing by the obligor to the obligee, made as interest on or part payment of or collateral security for the antecedent indebtedness; or
(c) A statement to the obligee that the statute of limitations will not be pleaded as a defense.
§83. PROMISE TO PAY INDEBTEDNESS DISCHARGED IN BANKRUPTCY
An express promise to pay all or part of an indebtedness of the promisor, discharged or dischargeable in bankruptcy proceedings begun before the promise is made, is bindding.
§84. PROMISE TO PERFORM A DUTY IN SPPITE OF NON-OCCURRENCE OF A CONDITION
(1) Except as stated in Subsection (2), a promise to perform all or part of a conditional duty under an antecedent contract in spite of the non-occurrence of the condition is binding, whether the promise is made before or after the time for the condition to occur, unless
(a) occurrence of the condition was material part of the agreed exchange for t he performance of the duty and the promisee was under no duty that it occur; or
(a) 条件的成就属于双方为义务履行而达成交换 之重要部分，并且受要约人对条件的成就不承担义务；或
(b) uncertainty of the occurrence of the condition was an element of the risk assumed by the promisor.
(2) If such a promise is made before the time for the occurrence of the condition has expired and the condition is within the control of the promisee or beneficiary, the promisor can make his duty again subject to the condition by notifying the promisee or beneficiary of his intention to do so if
(a) the notification is received while there is still a reasonable time to cause the condition to occur under the antecedent terms or an extension given by the promisor; and
(b) reinstatement of the requirement of the condition is not unjust because of a material change of position by the promisee or beneficiary; and
(c) the promise is not binding apart from the rules stated in Subsection (1)
§85.PROMISE TO PERFORM A VOIDABLE DUTY履行可撤消义务之允诺
except as stated in §93, a promise to perform all or part of an antecedent con tract of the promisor, previously violable by him, but not avoided prior to the making of the promise, is binding.
§86.PROMISE FOR BENEFIT RECEIVED因受有利益而为给付之允诺
(1) A promise made in recognition of a benefit previously received by the promisor from the promisee is binding to the extent necessary to prevent injustice.
(2) A promise is not binding under Subsection (1) 在以下情况下，上述允诺将失去约束力：
(a) if the promisee conferred the benefit as a gift or for other reasons the promisor has not been unjustly enriched; or
(b) to the extent that its value is disproportionate to the benefit.
§87. OPTION CONTRACT选择权合同
(1) An offer is binding as an option contract if it
(a) is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time; or
(a) 如果该要约是由要约人以书面形式签署发出，并且陈述了发出该要约的约因，提议在合理 的时间内通过公平的条款作出交换；或
(b) is made irrevocable by statute. 法律规定该要约是不可撤回的。
(2) An offer which the offeror should reasonably expect to induce action or for bearance of a substantial character on the part of the offeree before acceptance and which does induce such action or forbearance is binding as an option contract to the extent necessary to avoid injustice.
如果要约人应当合理地预见到其要约会使受要约人在承诺之前采取具有某 种实质性质的作为或不作为，并且该要约的确导致了这样的作为或不作为，该 要约便同选择权合同一样，在为避免不公正而必需的范围内具有约束力。
A promise to be surety for the performance of a contractual obligation, made to the obligee, is binding if
(a) the promise is in writing and signed by the promisor and recites a purport ed consideration; or
(b) the promise is made binding by statute; or允诺按照法令是有约束力的；或
(c) the promisor should reasonably expect the promise to induce action or for bearance of a substantial character on the part of the promisee or a third person, and the promise does induce such action or forbearance.
§89. MODIFICATION OF EXECUTORY CONTRACT待履行合同之修订
A promise modifying a duty under a contract not fully performed on either sid e is binding
(a) if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made; or
(b) to the extent provided by statute; or该允诺是在法令规定的范围内作出；或
(c) to the extent that justice requires enforcement in view of material change of position in reliance on the promise.
§90. PROMISE REASONABLY INDUCING ACTION OR FORBEARANCE
(1) A promise which the promisor should reasonably expect to induce action o r forbearance on the part of the promisee or a third person and which does in duce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited a s justice requires.
允诺如果是在允诺人通过合理的推想可以预见到能够引起受允诺人或第三人的行为或负担，并确实引起了此种行为或负担的情况下作出的话，如果只有通 过允诺的履行才能避免不公正，则该允诺必须得到履行。对因违背诺言而给予的 救济应限制在正当范围内
(2) A charitable subscription or marriage settlementis binding under Subsection(1) without proof that the promise induced action or forbearance.
§91.Effect of Promises Enumerated in §§82-90 When Conditional
If a promise within the terms of §§82-90 is in terms conditional or performance at a future time the promisor is bound thereby ,but performance becomes due only upon the occurrence of the condition or upon the arrival of the specified time.
§92 TO WHOM PROMISES ENUMERATED IN §§82-85 MUST BE MADE
The new promise referred to in §§82-85 is not binding unless it is made to a person who is then an obligee of the antecedent duty.
§93. PROMISES ENUMERATED IN §§82-85 MADE IN IGNORANCE OF FACTS
A promise within the terms of §§82-85is not binding unless the promisor knew or had reason to know the essential facts of the previous transaction to which the promise relates, but his knowledge of the legal effect of the facts is im material.
A promise or agreement with reference to a pending judicial proceeding, mad e by a party to the proceeding or his attorney, is binding without consideration. By statute or rule of court such as agreement is generally binding only
(a) if it is in writing and signed by the party or attorney, or
(b) if it is made or admitted in the presence of the court, or
(c) to the extent that justice requires enforcement in view of material change of position in reliance on the promise or agreement.
TOPIC 3. CONTRACTS UNDER SEAL; WRITING AS A STATUTORY SUBSTITUTE FOR THE SEAL
§95. Requirements for sealed contract or written contract or instrument (1) In the absence of statute a promise is binding without consideration if (a) it is in writing and sealed; and
(b) the document containing the promise is delivered; and 包含有此允诺的文书被交付；和
(c) the promisor and promisee are named in the document or so described as to be capable of identification when it is delivered.
(2) When a statute provides in effect that a written contract or instrument is binding without consideration or that lack of consideration is an affirmative defense to an action on a written contract or instrument, in order to be subject t o the statute a promise must either
(a) be expressed in a document signed or otherwise assented to by the promisor and delivered; or
(b) be expressed in a writing or writings to which both promisor and promisee manifest assent.
§96. WHAT CONSTITUTES A SEAL何为盖印
(1) A seal is a manifestation in tangible and conventional form of an intention that a document be sealed.
(2) A seal may take the form of a piece of wax, a wafer or other substance affixed to the document or of an impression made on the document.
(3) By statute or decision in most States in which the seal retains significance a seal may take the form of a written or printed seal, word, scrawl or other s gn.
§97. WHEN A PROMISE IS SEALED允诺何时盖印
A written promise is sealed if the promisor affixes or impresss a seal on the document or adopts a seal already thereon.
§98. ADOPTION OF A SEAL BY DELIVERY以交付而为盖印
Unless extrinsic circumstances manifest a contrary intention, the delivery of a written promise by the promisor amounts to the adoption of any seal then on the document which has apparent reference to his signature or to the signature of another party to the document.
§99. ADOPTION OF THE SAME SEAL BY SEVERAL PARTIES
Any number of parties to the same instrument may adopt one seal.
§100. RECITAL OF SEALING OR DELIVERY盖印或交付的说明
A recital of the sealing or of the delivery of a written promise is not essential to its validity as a contract under seal and is not conclusive of the fact of sealing or delivery unless a statute makes a recital of sealing the equivalent of a seal.
A written promise, sealed or unsealed, may be delivered by the promisor in escrow, conditionally to the promisee, or unconditionally.
§102 UNCONDITIONAL DELIVERY无条件交付
A written promise is delivered unconditionally when the promisor puts it out of his possession and manifests an intention that it is to take effect at once according to its terms.
§103. DELIVERY IN ESCROW; CONDITIONAL DELIVERY TO THE PROMISEE
(1) A written promise is delivered in escrow by the promisor when he puts it into the possession of a person other than the promisee without reserving a power of revocation and manifests an intention that the document is to take effect according to its terms upon the occurrence of a stated condition but not otherwise.
(2) A written promise is delivered conditionally to the promisee when the promisor puts it into the possession of the promisee without reserving a power of revocation and manifests an intention that the document is to take effect according to its terms upon the occurrence of a stated condition but not otherwise.
(3) Delivery of a written promise in escrow or its conditional delivery to the promisee has the same effect as unconditional delivery should have if the requirement of the condition were expressed in the writing.
(4) In the absence of a statute modifying the significance of a sealed promise in escrow or its conditional delivery to the promisee is irrevocable for the time specified by the promisor for the occurrence of the condition, or , if no time is specified, for a reasonable time.
§104. ACCEPTANCE OR DISCLAIMER BY THE PROMISEE受允诺人的承诺或不承诺
(1) Neither acceptance by the promisee nor knowledge by him of the existence of a promise is essential to the formation of a contract by the delivery of a written promise which is binding without consideration.
(2) A promisee who has not manifested assent to a written promise may, with in a reasonable time after learning of its existence and terms, render it inoperative by disclaimer.
(3) Acceptance or disclaimer is irrevocable. 承诺或不承诺的意思表示是不可撤回的。
§105. ACCEPTANCE WHERE RETURN PROMISE IS CONTEMPLATED
Where a conveyance or a document containing a promise also purports to containa return promise by the grantee or promisee, acceptance by the grantee or promisee is essential to create any contractual obligation other than an option contract binding on the grantor or promisor.
§106. WHAT AMOUNTS TO ACCEPTANCE OF INSTRUMENT接受允诺文书的意义
Acceptance of a conveyance or of a document containing a promise is a manifestation of assert to the terms thereof made, either before or after delivery, in accordance with any requirements imposed by the grantor or promisor. If the acceptance occurs before delivery and is not binding as an option contract , it is revocable until the moment of delivery.
§107. CREATION OF UNSEALED CONTRACT BY ACCEPTANCE BY PROMISEE
Where a grantee or promisee accepts a sealed document which purports to contain a return promise by him, he makes the return promise. But if he dose not sign or seal the document his promise is not under seal, and whether it is binding depends on the rules governing unsealed contracts.