Formation-of-A-Contract-中文翻译.docxVIP

FORMATION OF A CONTRACT 合同的形成 A contract is an agreement giving rise to obligations which are enforced or recognised by law. 合同指的是阐述缔约各方应履行的义务的约定，其内容已得到法律认可，可强制执行。 2. In common law, there are 3 basic essentials to the creation of a contract: (i) agreement; (ii) contractual intention; and (iii) consideration. 根据普通法的规定，合同的创建需要满足三大基本要素：（1）缔约方约定；（2）订约意图；（3）对价。 3. The first requisite of a contract is that the parties should have reached agreement. Generally speaking, an agreement is reached when one party makes an offer, which is accepted by another party. In deciding whether the parties have reached agreement, the courts will apply an objective test. 合同的第一个必备要素是缔约方已达成约定。通常而言，当一方提出要约而另一方接受该要约时就视为已达成了约定。为确定缔约方是否已达成约定，法院会组织一次客观测试。 A. OFFER要约 4. An offer is an expression of willingness to contract on specified terms, made with the intention that it is to be binding once accepted by the person to whom it is addressed. 1 There must be an objective manifestation of intent by the offeror to be bound by the offer if accepted by the other party. Therefore, the offer or will be bound if his words or conduct are such as to induce a reasonable third party observer to believe that he intends to be bound, even if in fact he has no such intention. This was held to be the case where a university made an offer of a place to an intending student as a result of a clerical error.2 要约表达了达成特定条款的意愿，且具备这样的意图：一旦受要约人接受了该要约，将对要约人产生法定约束效力。1要约人意图的客观表现在于，一旦另一方接受该要约，要约人将受到该要约函的约束。因此，若要约人的言语或行为让理智的第三方旁观者相信其将受到合同提议的约束，即便要约人并无此类意图，该要约仍对其有约束效力。举个例子，由于笔误原因，某个大学错误地向某个对该校有兴趣的学生提供了一份录取通知书，此时该录取通知书是有法律效力的。2 5. An offer can be addressed to a single person, to a specified group of persons, or to the world at large. An example of the latter would be a reward poster for the return of a lost pet. 要约函的对象为单个人士，或特定群体人士或社会所有人士，比如主人张贴悬赏通告以找回丢失的宠物时，悬赏要约就是针对社会所有人士的。 6. An offer may be made expressly (by words) or by conduct. 要约可通过口头明确表达出来，或者用行为表达。 7. An offer must be distinguished from an invitation to treat, by which a p