ACCA F 知识点总结

Chapter1

1. 民法(civil law)和刑法（criminal law ）的划分

Civil law: an form of private law ， used by individuals to assert rights against other individuals

Criminal law: an aspect of public law to regulate crimes and to punish offenders

1. legislation(made by the Parliament)/secondary

legislation( in exercise of law-making powers delegated

by Parliament). [注：Necessity for delegated

legislation/secondary legislation :more convenient ;can hand over the task of specifying the law in detail to experts] 2. 在case law 中:common law 普通法[created by judges

through the application of the principle of judicial

precedent. common law drew on customs/equity law 衡平法:to resolve disputes where damages are not a

suitable remedy and to introduce fairness into the legal system.]

2. 不同法院管辖事件的类型

Chapter2 Chapter2 1. Doctrine of Precedence(遵循先例制度的一般规则): some

decisions made by a court are binding and similar subsequent legal cases should be decided on the basis of the law established in earlier cases.

2. 可以创立判例法规则: Supreme Court/Court of

Appeal/High Court;不可以创立:Crown, Magistrates, County Courts cannot create precedent.

3. Elements of judicial decision(影响法庭判决的因素):ration

decidendi 判决理由[the reason for the decision]/Obiter dicta 附带说明[statement made by the way, not binding, but merely of persuasive authority]

4. 法官又可以因为那些理由拒绝先例(disregarding judicial

precedent): Overrule 取代[the procedure whereby a court higher in the legal hierarchy sets aside a legal ruling established in a previous case]/Reverse 推翻[a procedure whereby a court higher in the hierarchy reverses the decision of a lower court in the same case]/Distinguishing 法官的自由裁决[a precedent is avoided by a judge demonstrating that the material facts of two cases are not the same]

5. Rules of Statutory Interpretation(法的解释):①the literal

approach :the literal rule[means that words in the Act should be given their literal and grammatical meaning rather than what the judge thinks they mean./the golden rule :this rule is applied in circumstances where the application of the literal rule is likely to result in an obviously absurd result. ②the purposive approach :the judge should ,where necessary ,look beyond the words of statute to find out the reason/purpose for its enactment,

and that meaning should be interpreted in the light of the purpose[Mischief rule :purposive approach的具体表现形式/where a statute is designed to remedy a weakness in the law, the correct interpretation is the one which achieves it.]

6.语言处理规则（法律没有追溯力 a statute does not have

retrospective effect）

Chapter3 合同法（IMP）

1.合同的概念a legally binding agreement enforceable in law

2.从要约到承诺是否达成agreement [invitations to treat要约

邀请--offer要约--acceptance承诺----agreement]

3.Termination of an offer:express rejection/counter off反要约

/lapse of time/revocation of an off/death/if the off is suject to

a condition,it will lapse on failure of that condition

4.Privity of Contract合同相对性原则: the common law doctrine

that only those are party to the contract---have rights or liabilities under the contract/ have the right to enforce the contract,contracts cannot give rights or obligations to others

Chapter4

1.分类标准

Express and lmplied terms:某个条款是否经过双方当事人协商同意（agreed by the parties）

Condition，warranties and innominate terms 核心，从属和无名条款：根据条款重要性

2.免责条款（三观概念）

Any clause that attempts to exempt , or limit, the liability of one party for breach of contract or negligence

3 test: correctly incorporated into the contract形式正确

/worded clearly to exclude the breach措辞清晰/reasonable per statute内容合理

Chapter5 1.type of breach

⏹Repudiatory breach根本性违约：refusal to perform

拒绝履行/failure to perform an entire obligation不

履行某项/incapacitation无力履行/breach of

condition 违反核心条款/breach of an innominate

term违反无名条款

⏹Anticipatory breach预期违约：未到合同履行时间，当

事人提前说明无法履行；收到预期违约通知可立即追究

违约责任，也可等到履行合同时间追究责任

Lawful excuses for non-performance开脱责任：performance is impossible因不可预见的事情发生不可履行/尝试履行被拒绝/ the other party make it impossible for him to performance/contract is discharged through frustration情势变更/the party have been agreement permitted non-performance

2.Remedies : when a breach occurs, the court has to decide

what the appropriate remedy should be.

3.Liquidated damage违约金：a genuine pre-estimate of

the loss在订立合同前已经商定了，有利于解纠纷，如果违约金过高（远大于loss）判为惩罚性，则不可执行

4.specific performance ：the court directs a party to

complete their contractual obligations

以下几种情况法官不会让合同继续履行：courts cannot supervise法官无力监督履行/personal service/minors involved

Chapter6 Tort侵权法