对外经济贸易大学国际商法案例参考资料案例篇

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案例讨论1

Lucy et al. v. Zehmer et al. 84 S.E. (2d) 516, 196 Va. 493 (1954)

Complainants instituted this suit to have specific performance of a contract by which it was alleged the defendants had sold to W.O. Lucy for $50,000 a tract of land known as the Ferguson farm, owned by defendant A. H. Zehmer. J. C. Lucy, the other complainant, is a brother of W. O. Lucy, to whom W. O. Lucy transferred a half interest in his alleged purchase.

The instrument sought to be enforced was written by A. H. Zehmer on December 20, 1952, in these words: “We hereby agree to sell to W. O. Lucy the Ferguson farm for $50,000, title satisfactory to buyer,” signed by both defendants.

The answer of A. H. Zehmer admitted that at the time mentioned W.O. Lucy offered him $50,000 cash for the farm but that he (Zehmer) considered that the offer was made in jest; that so thinking, and both he and Lucy having had several drinks, he wrote out the “memorandum” quoted above and induced his wife to sign it; that he did not deliver the memorandum to Lucy, but Lucy picked it up, read it, put it in his pocket, and attempted to offer him $5.00 to bind the bargain; that he refused to accept, and, realizing for the first time that Lucy was serious, assured him that he had no intention of selling the farm, and that he whole matter was a joke. Lucy left the premises insisting that he had purchased the farm. On Monday, December 22nd, Lucy engaged an attorney to examine the title. The attorney reported favorably on December 31st, and on January 2nd Lucy wrote to Zehmer stating that the title was satisfactory and that he was ready to pay the purchase price in cash, and asking when Zehmer would be ready to close the deal. Zehmer replied by letter asserting that he had never agreed or intended to sell the farm. Thereupon complainants brought this suit. The issue is whether the agreement was entered into with contractual intent or was merely a joke.

Buchanan, J. In his testimony Zehmer claimed that he “was high as a Georgia pine,” and that the transaction “was just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most.” That claim is inconsistent with his attempt to testify in great detail as to what was said and what was done…The record is convincing that Zehmer was not intoxicated to the extent of being unable to comprehend the nature and consequence of the instrument he executed, and hence that instrument is not to be invalidated on that ground.

The evidence is convincing also that Zehmer wrote two agreements, the first one beginning “I hereby agree to sell”; that Lucy told him that he wanted Zehmer?s wife to sign the memorandum; and that Zehmer tore up the first agreement and then made a second one which read “We hereby agree to sell.” Both he and his wife signed the second memorandum.

The appearance of the contract; the fact that it was under discussion for forty minutes or more before it was signed; Lucy?s objection to the first draft because it was written in the singular and he wanted Mrs. Zehmer to sign it also; the rewriting to meet that objection and the signing by Mrs. Zehmer; the discussion of what was to be included in the sale; the provision for examination of the title; the completeness of the instrument that was exe

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cuted; the taking possession of it by Lucy with no request or suggestion by either of the defendants that he give it back, are facts which furnish persuasive evidence that the execution of the contract was a serious business transaction rather than a casual, jesting matter, as defendants now contend.

In the field of contracts, as generally elsewhere, “We must look to the outward expression of a person as manifesting his intention rather than his secret or unexpressed intention. The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.” First Nat. Exchange Bank of Roanoke v. Roanoke Oil Co., 169 Va. 99, 192 S.E. 764.

The mental assent of the parties is not requisite for a formation of a contract. If the words or other acts of one of the parties have but one reasonable meaning, his undisclosed intention is immaterial expect where an unreasonable meaning which he attaches to his manifestations is known to the other party.

An agreement or mutual assent is of course essential to a valid contract but the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. So a person cannot set up that he was merely jesting when his conduct and words would warrant a reasonable person in believing that he intended a real agreement. Reversed. 思考题：

1．你是否认为， 不管被告喝了多少酒， 醉到什么程度， 判决结果都会对他不利？ 2．被告先后签了两份协议对判决结果产生了什么影响？

3．法官在其判决意见的第三自然段列举了一系列的事实， 其目的何在？ 4．如何理

解 “The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.”?

5．你认为本案被告 “表达出来的意思” 与 “保留与内心的意思” 是相同的， 还是不同的 本案的issue

为： “Whether or not the final agreement was entered into with contractual intent or was merely a joke.” 就是说Zehmer后来所立的协议是否是一有拘束力的合同， 并且其后来无意出售农场是否受到此协议的约束。 我的分析：

“The evidence is convincing also that Zehmer wrote two agreements, the first one beginning “I hereby agree to sell”; that Lucy told him that he wanted Zehmer?s wife to sign the memorandum; and that Zehmer tore up the first agreement and then made a second one which read “We hereby agree to sell.” Both he and his wife signed the second memorandum.” 可以说明， 协议的重新拟订的过程确实是严肃认真的， 并且做到了双方的合

意。 “ that so thinking, and both he and Lucy having had several drinks, he wrote out the “memorandum” quoted above and induced his wife to sign it; that he did not deliver the memorandum to Lucy, but Lucy picked it up, read it, put it in his pocket, and attempted to offer him $5.00 to bind the bargain;” 而且可以表明， Zehmer 虽然喝了酒， 但绝对没有到不能理解协议内容的程度。 综上， 被告Zehmer虽没有出卖的意思， 但其外在行为已足使原告或者其他人相信其本人有订约的意思。 所以，

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“We must look to the outward expression of a person as manifesting his intention rather than his secret or unexpressed intention. The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.” 我们必须看当事人意图的外在表示， 而不是其内在的未表示出来的秘不可测的意图。

1 ． 思考题1 ， 回答是否定的， 也就是说不管被告喝了多少酒， 醉到什么程度， 判决结果不一定都对他不利， 结合本案， 如果被告喝酒喝得烂醉， 以致于失去了理解协议内容的能力的话， 我想判决就倾向于对他有利了。

2 。 被告先后签了两份协议， 如前所述， 有理由使法官相信此一订立协议的过程是严肃认真的， 且已做到了双方的合意， 为一有效的有约束力的合同。

3 。 其目的是为了说明订立合同有双方合意的证据， 并不是开玩笑。

4 。 结合本案， 应理解为， 法律所赋予人们的同意的意思表示应该以其意图的外在表示为准， 而不应考察其未表示出来的真实的内心意思。

5 。 我认为本案 “表达出来的意思” 与 “保留于内心的意思” 是不同的， 也就是说， 其实Zehmer 内心是不愿意为此一订立合同的行为的， 但是， 如前所述， 第三人有理由通过Zehmer的言行相信他有订合同的意图， 况且， 基于诚实信用原则， 如果允许人人在订好合同后在反悔， 那么有关交易岂不变得混乱了！

luiswu1983

I agree with eric in all aspects but one,which is the last question presented above. why the defendant refused to perform the contract which has been legally formed between the two parties we do not know upon the whole context of this judgement.

but one must be emphasized is that the outward expression of the defendant is tandem with his secret or unexpressed intention.since the intention of defendant for concluding this contract is so serious(the reason is clearly claified by eric above) and the defendant ,although drinks so much,can understand the context and consequences of this contract and his wife who is an resonable person had signed her name on the agreement collaterally,we has no reasaon to conclude that outward expression of the defendant was in contravention of his secret or unexpressed intention. welcome to discuss below!

谢谢ERIC，我也一直想问这个案子，但太怕麻烦。我的疑问是

1.被告的妻子的签名是否具有法律约束力，（是不是还要考虑房产是否为夫妻共同财产的问题，其妻是否有代理权的问题~~我晕，可能我把问题复杂化了），如果有约束力，那被告就是喝的再醉，在判决也对他不利了。（但奇怪，原告怎么没提这点呢，可能还有一些其他事实罢？）

2.我觉得本案还有一个重要事实就是，当原告提出支付5美金作为对价时，被告意识到原告认真了，所以拒绝了，并说他是开玩笑的。他之所以没有进一步行动以阻止合同生效，就可以归结为当时的被告的精神状况（喝了很多酒），所以我认为，被告隐藏于心的意思与表达在外的意思是不同的。 （但法官并没有强调这个事实，如果我是法官我可能就要作出有利被告的判决了，呵呵） 既然被告已明确告诉了原告他是开玩笑的，为什么原告还可以合理以为合同成立？ 大家怎么认为呢？

其实着案子除了外在表现出的客观真实意思外---客观标准 我认为还涉及了缔约能力

醉酒的人是否有缔约能力---认识标准（cognitive standard)，他是否有能力合理的理解交易的性质和后果 见笑了！

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从英美法上说醉酒的人属于缺乏定约能力的人,依美国的法例,酗酒者订立的合同原则上有强制执行力,但如果酗酒者在定约时由于醉酒而失去了姓为能力,则可要求撤销合同. 所以还是要具体分析的. 案例讨论2 二 ．“格式之战”

Butler Machine

Tool Co. v. Ex—Cell---O Corp.

[1979] 1 W. L. R. 401, [1979] 1 ALL E. R. 956 (C. A.)

On 23rd May 1969, in response to an inquiry by the buyers, the sellers quoted a price for a machine tool of ￡75,535, with delivery to be given in 10 months. On the back of their offer were a number of terms and conditions, which stipulated that they were to “prevail over any terms and conditions in the buyer?s order”. One of the conditions purported to allow the seller to charge the buyers the price for the machine prevailing at the time of delivery. The buyers replied by placing an order for the purchase of the machine. Their document．nbspstipulated that the order was subject to a number of terms and conditions which differed from those put forward by the sellers and which, in particular, made no provision for any increase in price.

At the foot of the buyer?s order form, there was a tear-off slip upon which the sellers were invited to accept the order “on the terms and conditions stated thereon”. On 5th June 1969, the sellers completed and returned this slip to the buyers with a letter stating that the buyers? order was being entered in accordance with the sellers? quotation of 23rd May 1969. When the sellers ultimately came to deliver the machine, they claimed to be entitled to an additional ￡2,892, under the price formula of their original offer. The buyers took the position that their order prevailed and that there was accordingly a fixed price contract. The sellers? action for damages succeeded at trial on the ground that the price variation clause in the sellers? offer was a term which was intended to prevail.

Lord Denning M. R. … No doubt a contract was… concluded. But on what terms? The sellers rely on their general conditions and on their last letter which said ?in accordance with our revised quotation of 23rd May? (which had on the back the price variation clause). The buyers rely on the acknowledgment signed by the sellers which accepted the buyers? order ?on the terms and conditions stated thereon? (which did not include a price variation clause).

If those document． are analyzed in our traditional method, the result would seem to me to be this: the quotation of 23rd May 1969 was an offer by the sellers to the buyers containing the terms and conditions on the back. The order of 27th May 1969 purported to be an acceptance of that offer in that it was for the same machine at the same price, but it contained such additions as to cost of installation, date of delivery and so forth, that it was in law a rejection of the offer and constituted a counter-offer. That is clear from Hyde v. Wrench [supra, at 33]. As Megaw J said in Trollope & Colls v. Atomic Power Constructions [[1962] 3 All E.R. 1035 at 1038] “… the counter-offer kills the original offer”. The letter of the sellers of 5th June 1969 was an acceptance of that counter-offer, as is shown by the acknowledgment which the sellers signed and returned to the buyers. The reference to the quotation of 23rd May 1969 referred only to the price and identity of the machine.

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The better way is to look at all the document． passing between the parties and glean from them, or from the conduct of the parties, whether they have reached agreement on all material points, even though there may be differences between the forms and conditions printed on the back of them. As Lord Cairns LC said in Brogden v. Metropolitan Railway Co. [(1877), 2 App. Cas. 666 at 672]:

… there may be a consensus between the parties far short of a complete mode of expressing it, and that consensus may be discovered from letters or from other document． of an imperfect and incomplete description.

Applying this guide, it will be found that in most cases when there is a ?battle of forms? there is a contract as soon as the last of the forms is sent and received without objection being taken to it. That is well observed in Benjamin on Sale [9th ed. (1974), 84-85]. The difficulty is to decide which form, or which part of which form, is a term or condition of the contract. In some cases the battle is won by the man who fires the last shot. He is the man who puts forward the latest term and conditions; and, if they are not objected to by the other party, he may be taken to have agreed to them. Such was British Road Services Ltd. V. Arthur V. Crutchley * Co., [[1968] 1 All E. R. 8ll at 816-817 (C.A.)] per Lord Pearson; and the illustration given by Professor Guest in Anson?s Law of Contract [24th ed. (1975), 37-38] where he says that “the terms of the contract consist of the terms of the offer subject to the modifications contained in the acceptance”. That may however go too far. In some cases, however, the battle is won by the man who gets the blow in first. If he offers to sell at a named price on the terms and conditions stated on the back and the buyer orders the goods purporting to accept the offer on an order form with his own different terms and conditions on the back, then, if the difference is so material that it would affect the price, the buyer ought not to be allowed to take advantage of the difference unless he draws it specifically to the attention of the seller. There are yet other cases where the battle depends on the shots fired on both sides. There is a concluded contract but the forms vary. The terms and conditions of both parties are to be construed together. If they can be reconciled so as to give a harmonious result, all well and good. If differences are irreconcilable, so that they are mutually contradictory, then the conflicting terms may have to be scrapped and replaced by a reasonable implication.

In the present case the judge thought that the sellers in their original quotation got their blow in first, especially by the provision that ?These terms and conditions shall prevail over any terms and conditions in the Buyer?s order?. It was so emphatic that the price variation clause continued through all the subsequent dealings and that the buyer must be taken to have agreed to it. I can understand that point of view. But I think that the document． have to be considered as a whole. And, as a matter of construction, I think the acknowledgment of 5th June 1969 is the decisive document． It makes it clear that the contract was on the buyer?s terms and not on the sellers? terms; and the buyers? terms did not include a price variation clause.

I would therefore allow the appeal and enter judgment for the buyers. [Lawton and Bridge L.JJ. delivered concurring judgments.] 思考题：

1 。 为什么法官说 “No doubt a contract was … concluded?”

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