合同法合同的变更.ppt

High Trees Doctrine Obiter dictum: if promise intended to be binding, intended to be acted on and in fact acted on it is binding so far as its terms properly apply. Promissory Estoppel It is an obiter Why it is an obiter, not ratio? 合同法：合同的变更 第77条　当事人协商一致，可以变更合同。 法律、行政法规规定变更合同应当办理批准、登记等手续的，依照其规定。 第78条　当事人对合同变更的内容约定不明确的，推定为未变更。 合同法：合同的订立 第10条　当事人订立合同，有书面形式、口头形式和其他形式…法律规定或当事人约定采用书面形式的，应当采用书面形式。 第11条　书面形式是指合同书、信件和数据电文（包括电报、电传、传真、电子数据交换和电子邮件）等可以有形地表现所载内容的形式。 第32条　当事人采用合同书形式订立合同的，自双方当事人签字或者盖章时合同成立。 第36条　法律、行政法规规定或者当事人约定采用书面形式订立合同，当事人未采用书面形式但一方已经履行主要义务，对方接受的，该合同成立。 第37条　采用合同书形式订立合同，在签字或者盖章之前，当事人一方已经履行主要义务，对方接受的，该合同成立。 A teacher who was injured at work received sick pay from his local authority employer at a rate higher than that provided for in his contract of employment. He queried the level of payment with council officials but was told that they were correct. By the time the mistake was discovered by the council, the teacher had received overpayments totalling about ￡1,000. In the meantime he bought a new suit and a second-hand car for about ￡500 which he would not have done but for the overpayments. The elements which had to be established for an estoppel defence to succeed were identified by Slade LJ: (a) the claimant must have made a representation of fact which led the defendant to believe that he was entitled to treat the money as his own; (b) the defendant must have, bona fide and without notice of the claim, changed his position as a result; and (c) the overpayment must not have been primarily caused by the fault of the defendant. * High Trees Case Promissory Estoppel Contract Under Seal Also called “deed” Formal written contract With corporate or notary stamp In law, contract under seal is enforceable even without consideration Parol Evidence Rule A contract under seal cannot be amended / changed / varied by oral agreement or written agreement not under seal. In other words, formal contract cannot be changed by less formal agreement. Est