Chapter Three Part TWO更新中

of the Law
Questions
Under
the common law system: What is the law itself? - Primary, or secondary authority? what about Chinese law? Are ALI’s Restatements of the Law case law or statutory law?

Ways to avoid an unjust result
a. If the facts of the present case do not include a fact that appears to have been necessary (“material”) to the earlier decision, the court may “distinguish” the precedent, render a different decision.
The characteristic of such a system
Which
may sometimes be a virtue, sometimes a defect, of being static and conservative, generally oriented toward preservation of the status quo.
Overruling –relatively drastic action
Q:
what is the legal consequence of overruling? It is usually reserved for instances in which the court feels that the rule established by the earlier precedent is simply wrong, i.e. unjust in its general application because either it was ill conceived at the outset or it has been outmoded by the later developments.

Some Legal Terms
source / authority 法律渊源 leading case, leading authority apply the rules of law to decide disputes , cases prior / past judicial / court decisions, cases ordinances 条例，主要用于美国英语中，特指 由各市的立法机关通过的法规。在英国英语中， 与其对应的是bylaws，而在美国英语中， bylaws 则是指除公司章程之外的内部规则。
Consideration 对价 Offer 要约
Some Legal Terms
the case subjudice / under adjudication feel obliged to obligation regime of law be justified on two grounds justification predictability ascertainable rules of law

Judicial system of decision-making
Stare
decisis adherence to past decisions (precedents) A precedent: - a prior decision with facts sufficiently similar to the case “subjudice” - under adjudication - that the court feels obliged to follow it and to render a similar decision.
Some Legal Terms
enact Statute of Frauds evidenced by a signed writing enforceable revision Uniform Commercial Code

Contract law

historically, as common law (=case law) - rather than by statute the most notable exception : - “statute of frauds”
Blind adherence
blind
adherence to precedent would produce an unjust result in the case presented for decision. what are the ways to avoid such an unjust result? i.e. in such circumstances, the precedents may not be followed.
Some Legal Terms
binding on / upon the case presented for decision an appellate court of higher rank (level) in the same jurisdiction material facts, circumstances overrule the earlier decision, overruling retroactively 有溯及力的 the parties to the earlier case the case under decision / adjudication general application
Q:
Nature of precedents

binding - A precedent is considered to be “binding” on a court only if it was decided by that same court or by an appellate court of higher rank in the same jurisdiction.
Ways to avoid an unjust result
b. If the earlier precedent is indeed binding, but is difficult or impossible to distinguish, there is one other way to avoid its effect. If the court of decision is the one that created the precedent (or is a higher court), it can simply “overrule” the earlier decision.

Questions
Under
the common law system: what is the law to be found? Or what are the sources of the law？ Please give a brief interpretation respectively.
Chapter Three Contract Law Part Two
Preparation questions

1. what are the main contents? please briefly explain them. 2. under common law system, does "stare decisis" mean that the precedents should always be followed? please take some examples.
- requires certain contracts to be evidenced by a signed writing in order to be enforceable in court
Statute of frauds
Law
in every state which requires that certain documents be in writing, such as real property titles and transfers (conveyances), leases for more than a year, wills and some types of contracts. The original statute was enacted in England in 1677 to prevent fraudulent title claims.
Q: What does “with one important exception” mean?
Technical jargon 专业术语
Assumpsit 口头约定 Quantum meruit 按合理价格给付
Full of strange words
Familiar words with unfamiliar or specialized meaning
Two types of sources / authority
Primary source= case law +statutory law 首要法源 Secondary source 次要法源 “the law” itself: Prior judicial decisions; statutes; ordinances … persuasive authority: a. Legal commentary; b. ALI’s Restatements