合同英语

　　Part I Objectives

Main characteristics of a contract
合同的特性

Contract review: Checking for key elements of a contract
合同的重要组成部分

Commonly used legal terms
常用法律用语

Some tips on easy understanding of contract lingo
掌握合同专用语的一些相关技巧

　　Part II The How-Tos

　　What You Should Know About a Contract

　　Why Do I Need A Contract? 为什么需要合同?
　　You don’t have to be a lawyer to reap the benefits of writing your own contracts. A little common sense goes a long way and a good contract does more that just cover your rear should you end up in court. Written correctly, a contract can demonstrate business professionalism, weed out insincere clients, organize your duties, speed up your pay, help you get insurance, avoid disputes, make mutual obligations clear and keep you out of court.

　　What is a Contract? 什么是合同?
　　A contract is a legally binding agreement. Contracts are either formal (written) or simple (verbal). It may be a bilateral contract, performed by both parties, or unilateral, a promise in exchange for an act or performance of a task or deed. Contracts may be voided, that is, the parties may agree to nullify the contract or it may be voided by a court of law.

These are some of the characteristics of a contract.

　　 Elements of a Good Contract 合同的要素
　　Every good contract has four essential component parts. They are: offer and acceptance, mutuality and consideration, competent parties, and a legal object.
　　An offer is communicated verbally or in writing and has definite terms. Mutuality indicates duties or actions are performed by each party. Consideration means that something of value is exchanged. Competent parties speak to the mental and legal capacity of the parties involved in making the contract. A legal object connotes a legal objective and no criminal intent.
　　Contracts don’t have to be formal: a letter of agreement is a contract too. In fact, a contract can be anything — it can be oral, can be written on a napkin(though not advised), can be a purchase order or a combination of documents exchanged between parties. It has no particular form. Written is better, though, then the terms are less often questioned.
　　To construct your own contract, specify the issues and conditions that matter. Independent consultants, for example struggle with Internal Revenue Service rules that threaten to reclassify them as employees. In an independent contractors contract state “the contractor is an independent contractor and not an employee.” That will protect the business identity and relieve your client of the fear that they will end up having to pay your health insurance premiums and Social Security taxes.
　　Include specific services your are to perform and deadlines. Detail a payment schedule that is suitable to both parties. If intellectual property (i.e., software, reports, manuals) is involved, include details about who owns the rights and the extent of those rights. If your work is project-based, include a description of when the job will end. That can be the delivery of the final report, etc.
　　So, how do you write your own contract? It is easier than it may appear. Several software packages exist to help you with the chore. Look also for printed forms. However, they are not as easily customized to your needs as software packages.
　　Get a good set of forms, fill them in and spend less on lawyers. Your understanding of the principles of contracts, their uses and limitations are sure ways to cut legal bills or avoid them altogether. It will also prevent murky situations in which inexperienced professionals find themselves and to avoid litigation.

　　 Contract Review - A checklist for you
　　Start evaluating your contract by doing a quick check of the critical basic elements. In most states, for a written contract to be enforceable, it must at a minimum:
　　Identify the Parties. Many form contracts used by small businesses include spaces for the names of the contracting parties, but in a harried workplace, these blocks don’t always get filled in. Avoiding a loss in a contract dispute because the parties to the contract have not been identified should be a "no brainer." Simply make sure that you and your employees ALWAYS (legibly, if done by hand) insert the names of the parties in the appropriate spaces on the contract.
　　Describe the Subject Matter. A contract must adequately describe the subject matter of the agreement. In a contract for services, for in stance, the contract should state that the contract is for the performance of services and those services should be clearly described. How ever, if the contract is for the sale of goods, it should clearly indicate that the parties have agreed to a sale of goods. Making it clear that the parties understood and agreed in advance that the contract was for the sale of goods, not services, or vice versa, will make sure that the correct body of law is applied in the event of a dispute. For example, the Uniform Commercial Code (adopted in some form by all states and known as the UCC) applies only to the sale of goods. All other types of contracts are generally governed by the more imprecise and varied statutory and common law of each state. In some cases, it is not always clear whether the contract is for the sale of goods or services. If there is any doubt, you should consult an attorney to determine how to characterize the description of the subject matter of your contract.
　　·State the Material Terms. Every contract must state the material terms and conditions of the contract. Under the Uniform Commercial Code the only material term necessary for an enforceable contract is a term stating the quantity of goods to be sold. In the event of a dispute, the Uniform Commercial Code permits a court to fill in the unstated or missing terms with what the court deems to be a reasonable price, quality, color, delivery date, interest rate, etc.
　　·Include a Signature. Every written contract must be signed by the party to be charged in the event of a breach. What this means is that if the seller eventually requires enforcement of a contract against a buyer, the contract must have been signed by the buyer. Conversely, if the buyer wants to force a seller to comply with the terms of a contract, the contract must bear the seller’s signature. A signature by the buyer of goods or services is critical evidence that he or she agreed to the terms of the contract and intended to be bound by them. Most pre-printed form contracts provide the necessary spaces for signatures.

　　Fine Tuning
　　After checking your contract for the basic elements, consider some of the following more advanced touches to tweak your contract into better form:
　　·Integration or Merger Clause. Does the contract contain some language to the effect that the terms contained in the written contract are the only terms agreed to between the parties? Including such language can preclude a party, in the event of a dispute, from arguing that additional terms were agreed to orally, or by some other means, at the time the contract was formed. The language could be as simple as stating “This Agreement constitutes the sole agreement of the parties.”
　　·Choice of Law Clause. Specifying in advance, within the body of the agreement itself, which state’s law will be used in the event of a dispute is a prudent move, for businesses with customers in more than one state. Litigating the same contract in different states under each state’s unique body of contract law can produce widely differing results. By insuring that only a single state’s law is applied, the drafting party can know in advance with some degree of confidence how certain disputes may be resolved. A typical choice of law clause might say: “This Agreement shall be construed and interpreted in accordance with the laws of the State of Oklahoma.”
　　·Arbitration Clause. It is possible to keep contract disputes from going to court at all by including language in the contract requiring the parties to submit any disputes to arbitration. Arbitration is usually much less expensive and faster than traditional litigation. An arbitration clause in a contract might say: “Any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in Oklahoma City, Oklahoma, by and in accordance with the Rules of the American Arbitration Association.”
　　Form contracts are critical tools for any business which buys or sells goods or services. They should be reviewed periodically to make sure they comply with the law and provide the drafter with the terms it needs to do business. Consult with an attorney before adding or changing any language in your existing contracts.

Part III Let’s Talk Business

　　Suites Without Lawyers
　　Any person has the right to sue another party for money judgment without a lawyer, or technically speaking "pro se". Pro se (pro-say) means by or for yourself. Each state sets own limits for so called small claims. Such claims usually arise from improper car or appliance repair, defaults in rent or loan payments, return of rent deposit, and so forth. For example, in Illinois the small claims limit is $5,000 dollars. State laws and judges facilitate more expeditions and less formal adjudication of such claims for damages than in other cases and court proceedings.
　　A person pursuing a claim in court is called "plaintiff" and a person being sued is called "defendant". Plaintiff files a "complaint" stating plaintiff's and defendant's names, home or business addresses, dates, events and gist of the claim. Copies of receipts, contracts, estimates and pictures must be identified in and attached to the complaint. Every paragraph must be numbered and brief. The complaint has to specify the relief sought by the plaintiff from the court.
　　Legal entities, such as corporations, partnerships, trusts or associations, may be prohibited by statutes from litigation without attorneys. Minors can be represented by their parents. Anyone who reached the age of majority can be a pro se plaintiff.
　　A defendant must be served with a summons and a complaint. If the wrong defendant is served, or the service of process is otherwise done improperly, no court judgment will be valid. A defendant may be served by certified mail or through sheriff. Service on a defendant-corporation must be either on any officer of the corporation or its registered agent.
　　If the properly served defendant does not appear at trial, then a default judgment will be enterd against that defendant. If the plaintiff does not appear at trial, then the case will be dismissed for want of prosecution.
　　A complaint must identify the parties by names, principal place of business of a company or home address of a defendant, the place of the occurrence, acts of the parties, allegation of the wrong and remedy sought. State statutes proved that the winning party is entitled to costs incurred, such as filing fees, sheriff's charges and cost of subpoenas served on witnesses.
　　Attorney's fees are rarely awarded by judges, unless the statute relied the party specifically gives such a right.
　　A defendant must file an appearance and pay the appearance fees within thirty days of service upon that defendant. A written answer has to be filed only in cases involving the amounts in excess of $5,000.00 or other minimum limits set by the state law. A defendant also can file a counterclaim against the plaintiff for poor workmanship and resulting damages, or money owed to the defendant-counterplaintiff.
　　One party may request the other party produce documents and things, answer interrogatories (questions to be answered under oath) and take part in depositions (oral discovery or questioning of a witness or a party in the presence of a court reporter) if the judge or law allows this.
　　Witnesses can be subpoenaed (the subpoenas are issued by the court) for trial. A witness is entitled to a statutory fee plus mileage reimbursement. Witnesses can testify about the events (what they saw or heard) or give opinions on matters within their expertise. For example, a mechanic can opine on the quality of engine repair, a doctor can give opinions about the health problems, a dog trainer about the dog behavior, and so on.

Estimates can be introduced into evidence, or in other words heard by or shown to the judge or the jury, only through the testimony of the estimate prepare or through the plaintiff if the bills were paid. The court will not accept papers prepared by a person who is not present in court, unless an expert incorporates such documents in his or her own opinion.
　　If the plaintiff does not show up at the court proceedings, the case will be dismissed for want of prosecution. If the defendant does not show up at trial, then the default judgment will be entered against that defendant. If a party cannot come to the court, any representative of that party can ask the judge to continue the trial or the scheduled proceeding. A trial or hearing is usually continued by the judge to a selected date at the same room and time. Telephone requests for continuance of trial are not proper.
　　At trial, a party presents own claim or defense by telling the judge their own version of events, presenting witnesses, exhibits (documents, photographs, receipts, contracts) and questioning the opponent and adverse witnesses.
　　No arguments with witnesses or the judge are allowed in court. Each request must be funneled only through the judge. In cases where no evidence is presented to the judge except the conflicting stories of parties, the judge may decide the case on the basis of personal appearance, presentation and veracity of statements of parties.
　　After the judge renders a decision, the winning party prepares an order reflecting the judge's findings. The judge signs that order. A court clerk then stamps a copy of the order and gives it to each litigant. Exhibits are given back to the parties. The judge may award the court costs to the winning party. Such costs include filing or appearance fees, subpoenas and sheriff's charges for serving summonses.
　　The parties can settle their claims before, during and after the trial. Judges encourage litigants to settle and assist in reaching such settlements. A party having no funds to pay the judgment award can pay it in installments. The defendant should get from the plaintiff a paper called "Satisfaction of Judgment" after the judgment is paid in full or the judgment is settled. This document must be registered in court and kept for future reference in case the defendant's credit record has not been cleared.
　　A losing party can file an appeal within thirty days of the judgment entered by the court. The appeal takes long time and can be won if the judge abused her discretion in rendering the decision.
　　If the defendant refuses to pay the judgment, the plaintiff can record only a "memorandum of judgment" which will impose a lien or objection to the defendant's property title. Thereby the property will no be transferred to anyone without satisfaction of judgment. This may not be helpful in case the defendant does not own any real estate.
　　Collection of judgment is another legal avenue which must be pursued by the judgment-creditor against the judgment-debtor. Such collection can be accomplished through collection agencies charging a certain percentage for their efforts. The judgment-creditor can also initiate a garnishment action in court. The court may issue a wage deduction order requiring the employer to deduct a portion of wages for payment of judgment. A citation to discover assets issued by the court in the garnishment action forces the judgment-debtor to disclose all assets (real estate, stocks, bonds, bank accounts, cars). In case of failure to disclose such assets, the court can issue an "attachment" for the responsible party's arrest.
　　If the defendant leaves the country, has no assets or declares bankruptcy, further collection efforts may become fruitless.　

Part IIII Exercises and Discussion

　　Give real life examples of:
　　- a written contract
　　- a verbal contract
　　- a bilateral contract
　　- a unilateral contract
　　- a promise in exchange for an act or performance
　　Identify the parties, legal objects (subject matter) and considerations in each of the above contracts.

　　Give legal advices to the following scenarios based upon your understanding on legal practices of “small claims” in US. Try to use as many “legal terms” as you can. Such terms had been underlined in Part two and three.
　　- Mel Chen, the owner of 123 Main St, Anytown, Illinois, is suing one of her tenants, John Dow for a rent overdue of $5,500. Mel was planning not to have a lawyer because of the high cost. Does she have the right to do so?
　　- Following the above scenario, if the amount of the rent overdue was $4,000, could Mel have a lawsuit without a lawyer? If she could, what capacity will she be acting in? How about John?
　　- Following the above scenario, if Mel decided not to show up at the court due to some personal reasons, what are some of the consequences she is going to take? What if John doesn't appear at trial?
　　- ABC Shoe Manufacturing Inc. is suing an independent contractor, Jay Fox, the plumber, for improper plumbing installation that had caused a damage of the showroom floor for an amount of $800. Does ABC have the right to make a claim in court without a lawyer? Why?
　　- A rottweiler owned by Joe Marino attacked Jane Dow and she is suing Joe Marino for damage of $4,500. Benny Lee, the dog trainer was subpoenaed to testify on the behavior of the dog. Will Benny get paid for doing so? If Benny failed to appear in court, would a paper prepared by him stating his expertise be a valid piece of testimony to be used at the trial?