第二章09非法、胁迫等违约及补救.ppt

Chapter 2 Contract Illegality Contracts illegal at common law Contracts to commit a crime or tort Contract to assault someone or cause a nuisance Contracts that are sexually immoral Contracts to corrupt public life Contract to bribe an official Contracts to ‘stifle a prosecution’ or which are prejudicial to the administration of justice Effects The contract is void. Neither party can sue on the contract. Any goods, money, or property which have been handed over cannot be recovered. The only exception is that in performing the contract, one party contravenes the law. The innocent party may recover if he repudiates the contract as soon as he is aware of the illegality. Contract illegal by statute For example S.24 of the Money Lenders Ordinance Any person who lends money at a rate of interest exceeding 60% p.a. commits an offence. The loan agreement is also unenforceable. Contracts contrary to public policy Contracts to oust the jurisdiction of the courts But the court will recognize those terms such as “without prejudice”, “subject to contract” An arbitration clause in commercial contract is also binding Contracts prejudicial to the status of marriage A contract to prevent a person from marrying or to marry one particular person is void. Contracts in restraint of trade Contracts in restraint of trade A typical example is a term in an employment contract which restricts an employee to work or trade in the same field for a period of time (e.g. 6 months) in a specified area (e.g. Mongkok district); and/or from soliciting business from his former employer’s customers (e.g. those who had business with the employer within 12 months before the termination) after the termination of employment. The term is enforceable only if it is necessary to protect the employer/business partner’s proprietary interest and must be reasonable as to time and area. Duress Duress Economic Duress If a party to a contract or his family member is threatened or subjected to violen