What is a "contract"?
1999 Article 2 of China's Contract Law defines a contract as: A contract as mentioned in this Law refers to an agreement between equal subjects, that is, natural persons, legal persons or other organizations to establish, change or terminate the relationship of civil rights and obligations. According to this definition, a contract is an agreement between equal subjects to determine civil rights and obligations.
The Law Dictionary, edited by Steven H Graves, defines a contract as "a contract is a promise or a group of promises, and if these promises are violated, the law will give relief, or the law will regard the fulfillment of these promises as an obligation in some way." According to this definition, a contract is a kind, and a breach of contract can get legal relief. In a sense, the law regards performance as a compensation.
Length B. Kousong defined a contract in his dictionary "The Law Dictionary": "A contract is a legally binding agreement". According to this definition, a contract is a legally binding agreement.
Taken together, there is one thing in common, that is, "a contract is an agreement", that is, a contract can be said to be "an agreement that binds the parties" or "an agreement that can be enforced according to law". You can also say: a contract is a promise enforced by law.
What is an agreement?
Length b "oral or written agreement on anything that has been done or will be done, or evidence of such agreement."
According to this definition, an agreement is an agreement reached orally or in writing after consultation and negotiation, and a consensus is reached on related matters that have been completed or will be completed soon.
Blake's Law Dictionary has two definitions. One is: "the consensus of understanding and intention reached by two or more parties on the influence of certain past or future facts or performance on their relative rights and obligations". According to this definition, an agreement is the unanimous understanding and desire of two or more parties to fulfill the relevant rights and obligations of certain past or future facts.
The other is: "Two or more people agree to check the transfer of some property, rights or interests at the same time in order to contact a contradiction, a mutual contradiction". According to this definition, agreement is the unanimous agreement of two or more parties on the transfer of property rights and interests in order to stipulate unilateral or mutual responsibilities.
Are contracts and agreements interchangeable?
The establishment of a contract must have several main factors. They consist of four parts: agreement (offer and articles of association), consideration, desire to establish legal relations and ability to conclude contracts.
The Legal Terms edited by L.B. Kousong mentioned that "contracts generally involve".
1. Offer and absolute and unconditional acceptance (offer and absolute acceptance)
2. Consensus (meaning agreement, also known as consensus)
3. Intention to establish legal relationship (willingness to establish contractual relationship)
4. Authenticity of consent
5. The contractual capacity of both parties.
6. The legitimacy of the object (the legitimacy of the subject)
7. Possibility of performance (possibility of performance)
8. certainty of terms (certainty of terms)
9. Valuable remuneration (equivalent compensation)
Blake's Law Dictionary explains that although it is synonymous with contract, agreement is a broader word. For example, agreement is a basic element that is very lacking in a contract.
That is to say, "agreement" and "contract" are often used as synonyms, but the word "agreement" has a broader meaning. For example, the agreement may lack the basic terms/provisions of the contract.
In practical use, the agreement is not limited by the necessary terms, and the style called contract is definitely essential. Some contracts list it as a general clause.
1999 article 12 of China contract law stipulates eight general clauses, namely:
1. Names and domain names of both parties (name and address of one party)
2. Contract object (target)
3. Quantity (quantity)
4. Quality (quality)
5. Price or reward (price or reward)
6. Time limit, place and method of performance (time limit, place and method)
7. Liability for breach of contract (liability for breach of contract)
8. Methods of dispute settlement
The above explanation shows that although the concept of contract and agreement is similar, the scope of use is different and cannot be used interchangeably. The contract is an important part of the agreement. All contracts must be agreements, but agreements are not all contracts. It can be said that an agreement with enforcement effect that meets the conditions for the establishment of a contract is a contract.
design feature
Contract legal documents are used to stipulate the rights and obligations of the parties and are the basis for preventing and resolving disputes. Contract English is meticulous and accurate, with a long history and profound legal and cultural connotations. ,
Generally, the name, title, domicile or business place of the parties are listed at the beginning of a Chinese contract, followed by the text of the contract, and the end is the seal of the parties, the signature of the authorized representative, the position and the date of signature. English contracts generally begin with the following sentences:
This agreement/contract is signed by Party A (hereinafter referred to as "Party A") and Party B (hereinafter referred to as "Party B") on.
Then began to state:
In which ... it is hereby agreed as follows:
Or by:
The witness testified that in view of ...
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereby enter into covenants and reach the following agreements:
Next is the text, and finally is the proof part:
In witness whereof, both parties have signed here on the date first written above.
Then it includes the signatures of the parties and witnesses. The date of signing is generally difficult to find in English contracts.
The contract formats for Singapore, the United States, Hong Kong and Japan are as follows.
A. Singapore
protocol
This Agreement is made by Le Kai International Limited (a company incorporated in Singapore, whose registered office is located at Bulanga Road 19569, telek, Singapore (hereinafter referred to as "the Company") and JACK Wong (NRIC,No.: _ _ _ _ _ _/A, address: Ocha Road, Singapore) on August 9, 2000/2000.
Whereas:
1. This company is engaged in IT business and needs a person with necessary qualifications and experience to manage its business.
2.
…。
Now the following agreement is reached:
1. The company will hire a manager, who will serve the company as the manager of the company's information technology business for two years, starting from September 6.
2.
…。
In witness whereof, both parties have signed this Agreement on the date first written above.
The above timetable refers to
Manager's duties
1. Manage, maintain and promote the company's business.
2.
3.
Signed by Roger Tan
On behalf of Lucky International Limited
Have sb. present
Signature: Wang Lijun
Have sb. present
Singapore's general contracting is divided into five parts:
The first part: The called party mainly introduces the names, registered countries and addresses, postal codes and their respective abbreviations in the contract. An open framework is usually:
This Agreement was signed by Party A (hereinafter referred to as the "Company") and Party B (hereinafter referred to as the "Manager") on.
At the beginning of the sentence in this agreement
The names and titles of both parties to the contract should be capitalized. If the party is a natural person, use "of" to connect the following addresses; If it is a legal person or an unincorporated entity, it should contact its registered office.
Part II: Call it recitation. Where to start, enter the narrative part, and formally explain the reasons for the parties to conclude the contract with sentences.
The third part: the name is Habendum, the text. Specify the rights and obligations of the parties. The final paragraph of the body part is:
In witness whereof, both parties have signed this Agreement on the date first written above. ,
This function is equivalent to the Chinese contract "both parties sign and seal, which is hereby certified".
The fourth part: called schedule or appendix, appendix. This is a necessary supplement to some clauses in the aforementioned contract. Not all contracts have this clause.
The fifth part: it is called attitude and proof. If the party concerned is a natural person, the translation shall be written in "Signature _ _" English; After the connection, fill in the description part of the witness's name "there are _ _ _ _ people present"; When the party concerned is a legal person or an unincorporated entity, add "signature on behalf of _ _ _ _" after the authorized representative, and then in front of _ _ _ _. The significant difference with the China contract is that in addition to the parties, there is an additional place where _ _ _ _ _ is present for the witness to sign. Another difference is that the conclusion date of the contract does not appear at the end of the contract, but at the beginning of the introduction of both parties.
Part V There is another saying in Singapore, "We sign here to prove it.
Signed, sealed and delivered by the above-mentioned signatory.
Have sb. present
sign
address
occupation
The format of the above contracts is very representative, and other English formats are similar. Some contracts have no appendices.
B. the United States,
Appointed as a contract full-time senior customs administrative officer
On September, 2000, a service agreement was signed between _ _ _ _ _ _ of (address) (hereinafter referred to as "the company") and Mr. _ _ _ _ _ of (address) (hereinafter referred to as "the contractor").
rely on
Both parties agree and declare as follows:
1. The company shall …
This agreement will come into effect on.
3.
4.
In witness whereof, both parties have signed on the above date.
signer
Name:
Name:
Representative: (signature)
Contractor:
Name:
Representative: (signature)
This contract is divided into four parts (the attached table is missing). It is basically the same as the previous contract, except that the first paragraph has no predicate and is not a complete sentence. Individual words are different from the previous contract. Finally, there is another "position" at the signing office, which is design (some contracts are still used for positioning).
C. Hong Kong
contract
contact number
Date/place of signing
Buyer: Name
legal address
get in touch with
Seller: Name
legal address
get in touch with
This contract is signed by the buyer and the seller.
Accordingly, the buyer agrees to purchase and the seller agrees to sell the following goods according to the terms and conditions.
1. Commodity name and contract scope
2. Price
3. Payment conversion
Step 4 pack
5.
In witness whereof, this contract has come into effect on the date first written above.
Buyer seller
___________ ___________
Author: _ _ _ _ _ _ _ Author: _ _ _ _ _ _ _ author
Date:-_ _ _ _ _ _ Date:-_ _ _ _ _ _ _
end user
___________
Author: _ _ _ _ _ _
Date:-_ _ _ _ _ _ _ _ _ _ _ _ _
Compared with the previous two contracts, the difference of this sales contract is that the contract number and signing date appear at the beginning of the contract, and the names of the parties are simply listed. The proof part is dynamic when it is completed, and the last signature is signature.
By project, but with end users added.
D. Japan
service agreement
This agreement is signed by _ _ _ _ _ Co., Ltd. (hereinafter referred to as "Party A") and _ _ _ _ _ _ Co., Ltd. (hereinafter referred to as "Party B") on March 6, 2006.
Witness:
Whereas, Party B has dispatched its personnel to Party B for the purpose of _ _ _ _ _ _ at the request of Party A; and
Whereas, (Party A is willing to send its personnel to work at Party B's request)
Therefore, in consideration of the mutual commitments and agreements contained in this Agreement, both parties agree as follows:
1.
2.
3.
In witness whereof, the parties hereto have caused their respective duly authorized officers to sign this Agreement on the date first written above.
_ _ _ _ _ Co., Ltd.
(signature) (signature)
executive director
This contract also consists of four parts. Different from the above contract, a witness is added at the top of the narrative part, and the position of the authorized signature representative is actually typed out and placed at the next line of signature instead of signing one by one at the last signature. And the abbreviations of the parties are all capitalized.
In contrast, except for a few places, paragraphs, sentence patterns and words in English contracts are similar. When drafting an English contract, as long as you copy any of the above items, it can be regarded as authentic English expression.
Formal terms of words
The words used in contract English are extremely elegant and specific. The choice of words requires professionalism, formality and accuracy. It is embodied in the following aspects:
The use of 1 May, shall, must, may not (or shall not) are familiar to those who have studied English, but you should be extremely cautious when using these words in the contract. The agreement of rights and obligations constitutes the main body of the contract. If these words are not chosen properly, it may cause disputes.
It may be aimed at stipulating the rights of the parties (what can be done), and it should stipulate the obligations of the parties (when it should be done), which must be used for mandatory obligations (what must be done) and not (or should not be) used for prohibitive obligations (what should not be done). What may be done cannot be said to be done, should not be done, should be done or should be done. May not do can be used in some legal documents in the United States, but it must not be used as something that cannot be done or must not be done. For example, when agreeing on the way to settle disputes, we can say
Both parties to the contract shall first settle any dispute arising from or related to this contract through friendly negotiation.
If negotiation fails, if there is no arbitration clause in the disputed contract or no agreement is reached after the dispute occurs, the dispute may be submitted to the people's court with jurisdiction for settlement.
Shall and may in this sentence are accurately expressed. After a dispute occurs, it should be settled through consultation first, so the compulsory "agreement" method is adopted. If the negotiation fails, it is also appropriate to use the optional agreement as the right of the parties. What will happen if may and shall switch places? After the first half of the sentence is changed to May, the meaning becomes that the parties can solve it through consultation, which makes sense. However, after the second half of the sentence was changed to May, it became to be solved through litigation. It seems that there has been an accident and it is unfriendly to see the official first.
Both parties shall first settle disputes arising from or related to this contract through friendly negotiation. If negotiation fails, there is no arbitration clause in the contract or no arbitration agreement is reached after the dispute occurs, it may apply to the people's court with jurisdiction for settlement.
2. Formal terminology
Contract English has a serious style and is quite different from other English works.
For example:
The phrase "because" uses "by virtue" more than "because" and generally does not use "because";
Generally, "at the end of the fiscal year" is used instead of "at the end of the fiscal year";
Before is generally used instead of before;
About is often used as about, concerned about or related, rather than about;
In fact, use "in effect" instead of "in fact";
Replace "start" with "start" or replace "start" with "start";
"Stop doing" replaces "stop doing" with "stop doing";
The expression "when the meeting will be held, presided over by someone" is: the meeting will be attended and presided over by someone.
In which "hold or call" is not used, but "call" is used; "Has been used;" Replace "presiding" or "responsible" with "presiding";
"Other matters" replaces "other matters/events" with "miscellaneous matters";
Replace "understanding the contract" with "explaining the contract" or "understanding the contract";
Replace "think" with "think", use "consider" less, and don't use "think" or "believe";
Willing to do "uses" intend to do "or" desire to do "instead of" want to do "and" hope to do ".
Third, technical terms.
The wording of the contract does not depend on whether the public understands and accepts it, but it is the guarantee of accurate expression of the contract language. Such as "defects", "relief", "force majeure", "jurisdiction", "damage" and "loss" in the contract, non-professionals may feel puzzled, and the above English expressions are defects, remedies, force majeure/force majeure, judgment, damage and/or loss). In addition, almost every contract has such function words, such as "where, where, for, here, here" and so on. This is also a major feature of contract English.
Other examples are:
Replace "compensation" with "compensation"
Replace "transfer of real estate" with "conviction" in "transfer of real estate"
"Lease" is used for "house rental" and "property rental" is used for "property rental".
Use "suspend business" or "stop" instead of "end/stop a business".
Only "royalties" are used in patent licensing.
Grace period for repayment or patent application.
"Reconciliation" is used for "reconciliation of bankrupt parties"
Real investment is "real investment"
Generally speaking, "according to the relevant provisions of this contract" means "according to the provisions contained in this contract" or "according to the provisions of this contract", not "according to the relevant provisions of this contract".
The English expression of "no party may assign this contract" is "hereto May Assign this contract", in which "hereto" means "belonging to this contract" and "Here to the contract" is rarely used.
3. Sequences of synonyms, synonyms and related words
For the value received, the signatory hereby sells, transfers, assigns and assigns to _ _ _ _ _ all his rights and interests in a contract signed by the signatory and _ _ _ _ _ on 19 _ _ _ _ _, and a copy of the contract is attached here.
The juxtaposition of synonyms and synonyms (such as sell, transfer, assign and set over, right and tile and interest) is very common in English contracts. This is for the sake of rigor and eliminating loopholes, and some of them also belong to the fixed mode of contract terms. For example:
The two groups of "conclusion and entry" and "from and between" in this agreement are synonyms and related words respectively.
In consideration of the mutual contract and agreement contained in this agreement, both parties agree as follows: In the sentence, three groups of synonyms are juxtaposed: "Considering" and "Convention and Agreement".
Both parties agree to change management according to the terms and conditions contained in this agreement. Here, "according to the terms" and "subject to conditions" both mean "according to the provisions of this agreement". The fixed mode of contract terms is "terms and conditions"
Another example is:
"Party A wishes to dissolve this Agreement from the effective date", and the meanings of "dissolution" and "dissolution" in the sentence are almost the same.
There are also coordinate words:
Ships and ships
Support and maintenance
Licences and permits
Charges, fees, costs and expenses
Any and all
Any duty, obligation or responsibility
Partners, their heirs, successors and assigns
Control and management of partnership enterprises
Applicable laws, regulations, decrees, directives and rules
5. Latin words
Latin words are still common in foreign contracts:
Proportional tax rate: the proportional tax rate is greater than the proportional tax rate.
Public welfare lawyers, lawyers engaged in charitable services, rarely use lawyers engaged in charitable legal aid.
Entrusted agent: multifunctional litigation agent.