Ⅰ. Identify, explain and or paraphrase the following terms.10个阿拉伯数字与10个英文字母之间存在唯一对应的关系，请将英文字母代码填写在题后的括号内。错填、多填或未填均不得分。（本大题共10小题，每题2分，共20分）
1．separate property（ ）
6．adultery（ ）
2．bigamy（ ）
7．beneficiary（ ）
3．custody（ ）
8．separation（ ）
4．heir（ ）
9．necessaries（ ）
5．nonsupport（ ）
10．guardian（ ）
A. A situation in which parties are not living together but otherwise have legal duties of husband and wife.
B. The care and possession of minor children of a marriage during a divorce proceeding and after divorce is final.
C. Property owned By either spouse before marriage or acquired during marriage by gift or inheritance.
D. A person appointed by the court to supervise and take care of another.
E. Failure to contribute money, in accordance with one's ability, to the maintenance of a parent as required by law.
F. Goods and services ordinarily required by and appropriate to an incompetent person's station in life, yet not available or provided by parent or guardian.
G. The crime of being married to two or more persons at the same time.
H. Sexual intercourse by a married person with someone other than the offender's spouse.
I. Anyone who has a legal right to inherit the property of another.
J. Anyone who benefits under the terms of a will.
Ⅱ. Choose the suitable word（s）from the box and fill in the blanks.（本题共10小题，每题1分，共10分。不填、错填均不得分）。
invisible statutory law mental alibi justifications actus reus defendant deny responsible mens rea
Both _____ (1) and the common law provide many defenses to crime. Other than having an _____(2)(which is not technically a defense but a denial), there are three main types of defenses：(A)_____(3), (B) excuses, and(C) procedural defenses. These terms are not easily defined, and the distinction is less than perfect. Justifications refer to situations in which the _____(4) does not deny they did it but that they did it for all the right reasons, an appeal to higher loyalty or ideals(as in self-defense) or more important reasons(as in necessity), for instance. Excuses refer to situations in which the defendant also does not _____(5) they did it but that they are not _____(6) for it(as in insanity or diminished capacity defenses), typically on grounds of lacking volition over their free will. Sometimes, it is said that Justifications involve denying _____(7)(犯罪意图)and Excuses involve denying _____(8)(犯罪行为),but the mindbody connection is complicated in this regard, and this saying can confuse you. Take sleepwalking, for instance, which might be treated as the inability to form mental intent although it is the body(which is asleep). The law also tends to think of _____(9) disorder as brain disorder, to avoid metaphysical debates over whether or not it is possible for something _____(10)like a “mind” to get sick.
In this case the appellee oil company presented to the appellantdefendant leasee, a filling station operator, a printed form contract as a lease to be signed by the defendant, which contained, in addition to the normal leasing provisions, a “hold harmless” clause which provided in substance that the leasee operator would hold harmless and also indemnify the oil company for any negligence of the oil company occurring on the leased premises. The litigation arises as a result of the oil company's own employee spraying gasoline over Weaver and his assistant and causing them to be burned and injured on the leased premises. This action was initiated by American Oil and Hoffer（Appellees）for a declaratory judgment to determine the liability of appellant Weaver, under the clause in the lease. The trial court entered judgment holding Weaver liable under the lease.
Clause three [3] of the lease reads as follows:
“Lessor（出租人）, its agents and employees shall not be liable for any loss, damage, injuries, or other casualty of whatsoever kind or by whomsoever caused to the person or property of anyone（including Lessee（承租人））on or off the premises, arising out of or resulting from Lessee's use, possession or operation thereof, or from defects in the premises whether apparent or hidden, or from the installation existence, use, maintenance condition, repair, alteration, removal or replacement of any equipment thereon, whether due in whole or in part to negligent acts or omissions of Lessor, its agents or employees; and Lessee for himself, his heirs, executors, administrators, successors and assigns, hereby agrees to indemnify and hold Lessor, its agents and employees, harmless from and against all claims, demands, liabilities, suits or actions（including all reasonable expenses and attorneys fees incurred by or imposed on the Lessor in connection therewith）for such loss, damage, injury or other casualty. Lessee also agrees to pay all reasonable expenses and attorneys fees incurred by Lessor in the event that Lessee shall default under the provisions of this paragraph.”
It will be noted that this lease clause not only exculpated the lessor oil company from its liability for its negligence, but also compelled Weaver to indemnify them for any damages or loss incurred as a result of its negligence. The Appellate Court held the exculpatory clause（免责条款） invalid, but the indemnifying clause valid. In our opinion, both these provisions must be read together since one may be used to effectuate the result obtained through the other. We find no ground for any distinction and we therefore grant the petition to transfer the appeal to this court. This is a contract which was submitted（already in printed form）to a party with lesser bargaining power. As in this case, it may contain unconscionable or unknown provisions which are in fine print. Such is the case now before the court.
The facts reveal that Weaver had left high school after one and a half years and spent his time, prior to leasing the service station, working at various skilled and unskilled labor oriented jobs. He was not one who should be expected to know the law or understand the meaning of technical terms. The ceremonious activity of signing the lease consisted of nothing more than the agent of American Oil placing the lease in front of Mr.Weaver and saying “sign”, which Mr.Weaver did. There is nothing in the record to indicate that Weaver read the lease; that the agent asked Weaver to read it; or that the agent, in any manner, attempted to call Weaver's attention to the “hold harmless” clause in the lease. Each year following, the procedure was the same. A salesman, from American Oil, would bring the lease to Weaver, at the station, and Weaver would sign it. The evidence showed that Weaver had never read the lease prior to signing and that the clauses in the lease were never explained to him in a manner from which he could grasp their legal significance. The leases were prepared by the attorneys of American Oil Company, for the American Oil Company, and the agents of the American Oil Company never attempted to explain the conditions of the lease nor did they advise Weaver that he should consult legal counsel, before signing the lease. The superior bargaining power of American Oil is patently obvious and the significance of Weaver's signature upon the legal document amounted to nothing more than a mere formality to Weaver for the substantial protection of American Oil. Had this case involved the sale of goods it would have been termed an “unconscionable contract” under sec. 2302 of the Uniform Commercial Code as found in Burns Ind. Stat. sec.19-2-302. The statute reads as follows:
“19-2-302. Unconscionable contract or clause. —（1）If the court as a matter of law find the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
（2）When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.（Acts 1963, ch.317, sec.2-302, p.539）”
According to the Comment to Official Text, the basic test of unconscionability is whether, in light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-side as to be unconscionable under the circumstances existing at the time of the making of the contract. Subsection two makes it clear that it is proper for the court to hear evidence upon these questions.
“An ‘unconscionable contract’ has been defined to be such as no sensible man not under delusion, duress or in distress would make, and such as no honest and fair man would accept. There exists here an ‘inequality so strong, gross and manifest, that it is impossible to state it to a man of common sense without producing an exclamation of the inequality of it.’ ‘Where the inadequacy of the price is so great that the mind revolts at it, the court will lay hold on the slightest circumstances of oppression or advantage to rescind the contract.”
“It is not the policy of the law to restrict business dealings or to relieve a party of his own mistakes of judgment but where one party has taken advantage of another's necessities and distress to obtain an unfair advantage over him, and the latter, owing to his condition, has encumbered himself with heavy liability or an onerous obligation for the sake of a small or inadequate present gain there will be relief granted.” Stiefler v.McCullough（1933）, 97 Ind. App.123, 174 N.E. 823.
The facts of this case reveal that in exchange for a contract which, if the clause in question is enforceable, may cost Mr.Weaver potentially thousands of dollars in damages for negligence of which he was not the cause, Weaver must operate the service station seven days a week for long hours, at a total yearly income of ＄5,000-＄ 6,000. The evidence also reveals that the clause was in fine print and contained no title heading which would have identified it as an indemnity clause. It seems a deplorable abuse of justice to hold a man of poor education, to a contract prepared by the attorneys of American Oil, for the benefit of American Oil which was presented to Weaver on a “take it or leave it basis”.
Justice Frankfurter of the United States Supreme Court spoke on the question of inequality of bargaining power in his dissenting opinion in United States v.Bethlehem Steel Corp.（1942）, 315 U.S. 289, 326, 62 S.Ct. 581, 599, 86 L.Ed. 855, 876.
“（I）t is said that familiar principles would be outraged if Bethlehem were denied recovery on these contracts. But is there any principle which is more familiar or more firmly embedded in the history of Anglo-American law than the basic doctrine that the courts will not permit themselves to be used as instruments of inequity and injustice? Does any principle in our law have more universal application than the doctrine that courts will not enforce transactions in which the relative positions of the parties are such that one has unconscionably taken advantage of the necessities of the other?”
“These principles are not foreign to the law of contracts. Fraud and physical duress are not the only grounds upon which courts refuse to enforce contracts. The law is not so primitive that it sanctions every injustice except brute force and downright fraud. More specifically, the courts generally refuse to lend themselves to the enforcement of a ‘bargain’ in which one party has unjustly taken advantage of the economic necessities of the other ...’”
The traditional contract is the result of free bargaining of parties who are brought together by the play of the market, and who meet each other on a footing of approximate economic equality. In such a society there is no danger that freedom of contract will be a threat to the social order as a whole. But in presentday commercial life the standardized mass contract has appeared. It is used primarily by enterprises with strong bargaining power and position. The weaker party, in need of the good or services, is frequently not in a position to shop around for better terms, either because the author of the standard contract（标准合同）has a monopoly（natural or artificial）or because all competitors use the same clauses.
Judge Frankfurter's dissent was written nearly twenty years ago. It represents a direction and philosophy which the law, at that time was taking and is now compelled to accept in our modern society over the old principle known as the parol evidence rule. The parole evidence rule states that an agreement or contract, signed by the parties, is conclusively presumed to represent an integration or meeting of the minds of the parties. This is an archaic rule from the old common law. The objectivity of the rule has as its only merit its simplicity of application which is far outweighed by its failure in many cases to represent the actual agreement, particularly where a printed form prepared by one party contains hidden clauses unknown to the other party is submitted and signed. The law should seek the truth or the subjective understanding of the parties in this more enlightened age. The burden should be on the party submitting such “a package” in printed form to show that the other party had knowledge of any unusual or unconscionable terms contained therein. The principle should be the same as that applicable to implied warranties, namely, that a package of goods sold to a purchaser is fit for the purposes intended and contains no harmful materials other than that represented. Caveat lessee is no more the current law than caveat emptor（买主自慎）. Only in this way can justice be served and the true meaning of freedom of contract preserved. The analogy is rational. We have previously pointed out a similar situation in the Uniform Commercial Code, which prohibits unconscionable contract clauses in sales agreements. When a party can show that the contract, which is sought to be enforced, was in fact an unconscionable one, due to a prodigious amount of bargaining power on behalf of the stronger party, which is used to the stronger party's advantage and is unknown to the lesser party, causing a great hardship and risk on the lesser party, the contract provision, or the contract as a whole, if the provision is not separable, should not be enforceable on the grounds that the provision is contrary to public policy. The party seeking to enforce such a contract has the burden of showing that the provisions were explained to the other party and came to his knowledge and there was in fact a real and voluntary meeting of the minds and not merely an objective meeting.
Unjust contract provisions have been found unenforceable, in the past, on the grounds of being contrary to public policy, where a party has a greater superior bargaining position. In Penn. Railroad Co.v.Kent（1964）, 136 Ind. App. 551, 198 N.E. 2d 615, Judge Hunter, speaking for the court said that although the proposition that “parties may enter into such contractual arrangements as they may desire may be conceded in the general sense; yet when such special agreement may result in affecting the public interest and thereby contravene public policy, the abrogation of the rules governing common carriers must be zealously guarded against.”
We do not mean to say or infer that parties may not make contracts exculpating one of his negligence and providing for indemnification, but it must be done knowingly and willingly as in insurance contracts made for that very purpose.
It is the duty of the courts to administer justice and that role is not performed, in this case, by enforcing a written instrument, not really an agreement of the parties as shown by the evidence here, although signed by the parties. The parol evidence rule must yield to the equities of the case. The appeal is transferred to this court and the judgment of the trial court is reversed with direction to enter judgment for the appellant.
Givan, DeBruler, Hunter, JJ., concur; Prentice, J., dissents, with opinion.
1．The defendant has the right to remain silent. If a statement is made, any statement that is made can be used against him/her.
______________________________
2．The prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify if the defendant chooses to remain silent. By contrast, a defendant may be called as a witness in a civil case.
______________________________
3．Once suspects have been advised of their Miranda rights, they are commonly asked to sign a paper which lists each right. Questioning may then begin, but only if suspect waive their rights not to talk or to have a lawyer present during interrogation.
______________________________
4．The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity.
______________________________
5．The seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware.
Ⅰ. Identify, explain and or paraphrase the following terms.10个阿拉伯数字与10个英文字母之间存在唯一对应的关系，请将英文字母代码填写在题后的括号内。错填、多填或未填均不得分。（本大题共10小题，每题2分，共20分）
1．executive branch（ ）
6．devolution（ ）
2．federal（ ）
7．defamation（ ）
3．legislation（ ）
8．legislative branch（ ）
4．confederation（ ）
9．allegation（ ）
5．judicial branch（ ）
10．constitution（ ）
A. Laws or written rules which are passed by Parliament and implemented by the courts.
B. The government department that is responsible for determining the constitutionality of legislative and executive actions, and adjudicating rights and duties of others involved in disputes. It interprets and applies the Law.
C. A written document defining fundamental legal principle for governance of the people. It may include grants of power and limitations of power.
D. Passing of power to govern or to make decisions from a central authority to a local authority.
E. The government department that is responsible for carrying laws into effect.
F. Group of independent states or organizations working together for common aims.
G. The government department that is responsible for enacting statutory laws.
H. Refers to the U.S government and its activities. The United States is a federation of 50 sovereign states.
I. In pleading, an assertion of fact; the statement of the issue which the contributing party is prepared to prove.
J. False statement, either oral or written, which tends to injure the reputation of the victim. It may be civil as well as criminal.
Ⅱ. True or False.本题为判断正误题，对的用代码T，错的用代码F，请将代码填写在题前的括号内。不填、错填、填反均不得分。（本题共5小题，每题2分，共10分）
（ ）1. If the victim is dead and has no one to speak on his or her behalf, the agencies of justice won't investigate the crime.
（ ）2. In civil law, a principal may be held responsible for the wrongful act of an agent when the agent acts within the scope of the agency.
（ ）3. A business person can physically assault a financial rival to prevent a hostile takeover of her company.
（ ）4. To convict a person of a crime, we need to follow the preponderance of evidence standard.
（ ）5. The defense has the right to crossexamine prosecution witnesses.
Ⅲ．Case Analyses.（本大题共5小题，每小题6分，共30分）
请在每小题后的横线上用中文作答。错答、不答、使用英文做答均无分。
STORER v.FLORIDA SPORTSERVICE, INC. Jan.9, 1961 District Court of Appeal of Florida, Third District
By this interlocutory appeal the plaintiff seeks reversal of a partial final decree. The complaint sought a declaration as to the validity of a concession contract between Florida Sportservice, Inc. and the Miami Baseball Company, a corporation which was dissolved after plaintiff Storer became the sole owner and transferred its assets to his name. By agreement of the parties, approved by the court, trial was deferred on the issues raised by a counterclaim. After trial of the issues raised by the complaint and answer, the chancellor entered the decree now appealed, which adjudged the contract valid and ordered further proceedings on the counterclaim. We affirm.
In our analysis of the pleadings in the case, we pointed out：
‘... Here Storer was operating a business which, according to his allegations, he understood was subject to a concession contract made in 1949, to run until September 30, 1959. He then learns of another concession contract given out by the corporation whose stock he has since bought and the terms of which he finds onerous. He alleges facts concerning the execution of the latter contract on which he relies to establish its invalidity ...’
The essential fact referred to was plaintiff's allegation：
‘... that the 1956 concession agreement was made by an officer of the corporation, Miami Baseball Company, without authority, and there was no basis upon which the chancellor could hold that the 1956 agreement was valid and binding on Storer and Florida Sportservice, Inc.’
The chancellor's conclusion upon this question was as follows：
‘The court determines, declares and decrees that that certain agreement dated February 28, 1956, executed by Miami Baseball Company, a Florida corporation, and the defendant, Florida Sportservice, Inc., a Florida corporation,（mentioned and referred to in the plaintiff's amended petition and introduced in evidence as the plaintiff's exhibit 3）has been since it was entered into, and is now, a valid and enforceable contract; and that the parties by which such agreement was executed and the plaintiff, George B. Storer, are, and each of them is, contractually bound and obligated by each and all of the terms and provisions of such agreement.’
Therefore, this appeal presents the question: Was there substantial evidence to support the conclusion of law reached by the chancellor?
Without attempting a complete statement of the evidence and the conclusions which could have been made therefrom, it may be stated that there is no real conflict about the fact that prior to February, 1956, Florida Sportservice, Inc. claimed concession rights under two different contracts. The first was an agreement between the former owners of Miami Stadium and Florida Sportservice, Inc. The second was an agreement between their assignors and the owners of the Syracuse, N.Y., baseball franchise, which franchise was purchased by the Miami Baseball Company.
In the latter part of February, 1956, Benjamin D.Reisman, an attorney who was general counsel for the interests owning Florida Sportservice, Inc., visited the law offices of John G.Thompson, the Miami Baseball Company's secretary and its attorney. He was accompanied by Mr.Salomon, who was the president of the Miami Baseball Company. They told Mr.Thompson that they had worked out an agreement. This agreement was to supersede the two prior contracts under which Florida Sportservice was claiming and operating at that time. Mr.Reisman left a draft of an agreement to be used by Mr.Thompson in preparing an agreement for execution. Because the Miami Baseball Company had not settled with the City of Miami the terms of its lease on Miami Stadium and for other unexplained reasons the agreement was not completed and signed until approximately the same time that Mr.Storer announced his intention to buy the stock of the ball club. The agreement was dated back to February 28, 1956, although it was executed December 6, 1956. Mr.Thompson testified that notwithstanding the delay in preparing and executing the agreement ‘we all considered we had an agreement,’ and that during the 1956 baseball season his company operated under it.
In decreeing the validity of the 20year concession contract between the corporation and Florida Sportservice, Inc., executed for the corporation by its president and secretaryon December 6, 1956, and dated back to February 28, 1956, the chancellor made no findings on the issues raised by the petition for declaratory decree. Those issues were based on allegations that Storer was not informed of the new concession agreement, and that it was made without the required corporate authority. Inasmuch as there was clearly sufficient evidence before the chancellor to sustain a basic finding upon the issue of corporate authority, we will discuss only that aspect of the case.
The by-laws provided that the power of the president to make contracts was subject to approval of the board of directors. However, a large directorate was provided for. Twentyone directors were elected, many of whom were men of local and national prominence whose presence on the board presumably was of more value to the corporation in its public relations than in the conduct of its business. In apparent contemplation of so unwieldly a directorate, the by-laws had provided for appointment of an executive committee to conduct the business of the corporation. Such a committee was duly formed, consisting of Salomon, Stein and Cooper. While there were no minutes or records of the meetings or action of the executive committee regarding this contract, the evidence disclosed that the members of the executive committee conferred with regard to the contract, and that it was made with the committee's knowledge and authorization. Therefore, the chancellor was correct in concluding that the concession contract in question was authorized by the executive committee and that the executive committee was duly empowered to so act. The fact that the authorization of the executive committee was oral and not reduced to writing did not destroy its effectiveness.
1. The defendant has the right to remain silent. If a statement is made, any statement that is made can be used against him/her.
______________________________
2. If the Grand Jury indicts the individual, the individual has the right to a speedy trial by jury where the state would have to prove their case beyond a reasonable doubt.
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3. All disputes arising from the performance of this Contract shall, through amicable negotiations, be settled by the Parties hereto. Should, through negotiation, no settlement be reached, the case in question shall then be submitted for arbitration to the Arbitration Commission.
______________________________
4. Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach.
______________________________
5. On 3 September 2009, the Chairman of the panel informed the DSB that due to the complexity of the dispute, and the administrative and procedural matters involved, the panel is not able to complete its work in six months.
Ⅰ. Identify, explain and or paraphrase the following terms. 10个阿拉伯数字与10个英文字母之间存在唯一对应的关系，请将英文字母代码填写在题后的括号内。错填、多填或未填均不得分。（本大题共10小题，每题2分，共20分）
1．defendant（ ）
6．adjudicate（ ）
2．llegation（ ）
7．review（ ）
3．ase law（ ）
8．plaintiff（ ）
4．aw（ ）
9．Common Law（ ）
5．tatutory law（ ）
10．Jurist（ ）
A. Judicial reexamination of the proceedings of a court or other body; a reconsideration by the same court or body of its former decision.
B. Rules of conduct applicable to all people and enforceable in court.
C. To decide a matter by legal means; for example, court, mediation, arbitration.
D. The party being sued or tried in either civil or criminal action.
E. The major source of law in the U.S.A. or the UK; based on old English Law.
F. Law established by Congress, state legislatures or any other law making bodies.
G. A person who has a substantial knowledge of law and who has written extensively on legal matters; for example, judges, professors, and so on.
H. The party who initiates an action at law(law suit).
I. Law based on court decisions.
J. A statement or charge made in a pleading which one intends to prove by legal evidence.
Ⅱ. True or False.本题为判断正误题，对的用代码T，错的用代码F，请将代码填写在题前的括号内。不填、错填、填反均不得分。（本题共5小题，每题2分，共10分）
（ ）1. Judicial review is the power and duty vested in the U.S. Congress to declare null and void any statute or act of the federal government or of any state.
（ ）2. Crimes are prosecuted by privately retained counsel, and not by public attorneys representing the community at large.
（ ）3. If the victim is dead and has no one to speak on his or her behalf, the agencies of justice won't investigate the crime.
（ ）4. The prosecutor can call the defendant as a witness; similarly, a judge or defense attorney also can force the defendant to testify if the defendant chooses to remain silent.
（ ）5. Congress may pass a bill; the president may sign or veto it. Congress may override the veto and enact the bill as law.
Ⅲ．Case Analyses.（本大题共5小题，每小题6分，共30分）
请在每小题后的横线上用中文作答。错答、不答、使用英文做答均无分。
Donoghue v.Stevenson[1932] UKHL 100
Facts
On the evening of Sunday 26 August 1928 May Donoghue, née M'Alister, boarded a tram in Glasgow for the thirty-minute journey to Paisley. At around ten minutes to nine, she and a friend took their seats in the Wellmeadow Café in the town's Wellmeadow Place. They were approached by the café owner, Francis Minchella, and Donoghue's friend ordered and paid for a bottle of ginger beer. The owner brought the order and poured part of an opaque bottle of ginger beer into a tumbler containing ice cream. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. It was claimed that the remains of a snail in a state of decomposition dropped out of the bottle into the tumbler. Donoghue later complained of stomach pain and her doctor diagnosed her as having gastroenteritis and being in a state of severe shock.
On 9 April 1929, Donoghue brought an action against David Stevenson, an aerated water manufacturer in Paisley, in which she claimed ￡500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by him. Following the House of Lords judgement, which dealt with a preliminary matter, the case was settled out of court and so the full facts were not heard in court. The identity of Donoghue's friend is unknown, but that person is referred to as “she” in the case reports(including the first paragraph of the judgement of Lord MacMillan in the House of Lords). Other factual uncertainties include whether the animal(if it existed) was a snail or a slug, whether the bottle contained ginger beer or some other beverage(as ‘ginger’ in Glaswegian and West of Scotland parlance refers to any fizzy drink) and whether the drink was part of an icecream soda.
Legal background
In common law, a person can claim damages from another person where that other person owed the first person a duty of care and harmed that person through their conduct in breach of that duty. This concept existed prior to Donoghue, but it was generally held that a duty of care was only owed in very specific circumstances, such as where a contract existed between two parties or where a manufacturer was making inherently dangerous products or was acting fraudulently.
There was no contractual relationship between Donoghue and the drinks manufacturer or even the café owner, as Donoghue had not ordered or paid for the drink herself. Although there was a contractual relationship between the café owner and Donoghue's friend, the friend had not been harmed by the ginger beer. As ginger beer was not a dangerous product, and the manufacturer had not fraudulently misrepresented it, the case also fell outside the scope of the established cases on product liability. On the face of it, the law therefore did not provide a remedy for Donoghue.
Progress of the case
The writ lodged in the Court of Session on April 1929 alleged that May Donoghue had become ill with nervous shock and gastroenteritis after drinking part of the contents of an opaque bottle of ginger beer, and David Stevenson, the manufacturer, “owed her a duty to take reasonable care that ginger beer he manufactured, bottled, labelled and sealed, and invited her to buy, did not contain substances likely to cause her injury.” Donoghue claimed damages of ￡500.
Counsel for the manufacturer denied that any such duty was owed but, in June 1930, the judge Lord Moncrieff ruled there was a case to answer. Stevenson appealed the ruling on a number of legal grounds, and the judges of the Inner House granted the appeal in November 1930, dismissing Donoghue's claim as having no legal basis following the authority of their earlier decision in Mullen v AG Barr. One of the judges said that “the only difference between Donoghue's case and the mouse cases was the difference between a rodent and a gastropod and in Scots law that meant no difference at all.”
Donoghue was allowed to appeal her case to the House of Lords but, whilst her legal team had agreed to provide their services free, she was unable to put up the security needed to ensure the other side's costs were met should she lose in the Lords. However, as such security would not be required if she could gain the status of a pauper, she petitioned the House of Lords, saying, “I am very poor and am not worth in all the world the sum of five pounds, my wearing apparel and the subject matter of the said appeal ...”. A certificate of poverty signed by a minister and two elders of her church was attached to the petition, and the House of Lords agreed to grant her pauper status.
Nine months after her petition was granted, Lords Buckmaster, Atkin, Tomlin, Thankerton and MacMillan heard counsels arguments. Donoghue's counselGeorge Morton KC and W.R.Milligan(later a Lord Advocate)argued that a manufacturer who puts a product intended for human consumption onto the market in a form that precludes examination before its use is liable for any damage caused if he fails to exercise reasonable care to ensure it is fit for human consumption. Stevenson's counselW.G.Normand KC(then Solicitor General for Scotland and later a Law Lord), J.L.Clyde(later Lord Advocate and then Lord President of the Court of Session), and T. Elder Jonesargued that there was no authority for such a principle of law.
Judgment
The leading judgment was delivered on 26 May 1932 by Lord Atkin. The most famous section was his explanation of the “neighbour” principle, which was derived from the Christian principle of “loving your neighbour”(found, for example, in James 2:8 and the Parable of the Good Samaritan):
There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances....The rule that you are to love your neighbour becomes in law: you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question ... a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.
“A man has a Duty of Care to conduct himself in such a way as to avoid harm to others, where a reasonable man would have seen that such harm could occur”.
Lords Thankerton and MacMillan supported Lord Atkin's opinion, with Lords Buckmaster and Tomlin dissenting. Buckmaster said it was impossible to accept such a wide proposition and(anticipating later “floodgates” arguments) that it was difficult to see how trade could be carried on if Lord Atkin's principle was law. Buckmaster also opined, as did Lord Tomlin, that if such a duty of care existed it must cover the construction of every article, not just food: “If one step, why not fifty?” Tomlin referred to the Versailles train crash in 1842 caused by a defective axle, noting that, if Lord Atkin's principle were to be law, every injured party would be permitted to sue the axle manufacturer in such a case.
The case was returned to Scotland for the Court of Session to apply the ruling to the facts of the case. In the event, David Stevenson died within a year of the decision and his executors settled out of court, for less than the original claim of ￡500.
Significance
Donoghue v.Stevenson was a decision of the House of Lords that established the modern concept of negligence in British law, by setting out general principles whereby one person would owe another person a duty of care. It is the origin of the modern tort of negligence in English and Welsh law and of the delict in Scots law.
As Justice Allen Linden has pointed out, Donoghue is an extension of a principle articulated by Benjamin Cardozo in an earlier case in the United States, MacPherson v.Buick Motor Co., which the judges referred to in Donoghue. MacPherson pioneered the tortious principle of a general duty of care, the starting point for any action in negligence, though the principles were expressed within the context of product liability only.
Donoghue is perhaps best known for the speech of Lord Atkin and his “neighbour” or “neighbourhood” principle, where he applied Luke 10 to law so that, where an established duty of care does not already exist, a person will owe a duty of care not to injure those whom it can be reasonably foreseen would be affected by their acts or omissions. The effect of this case was not only to provide individuals in the United Kingdom with a remedy against suppliers of consumer products even where the complainant had no privity of contract with those individual or company tortfeasors, but to allow such individuals to bring negligence claims in any circumstance where the conditions for establishing a duty of care were met.
In 1990, the House of Lords revised Lord Atkin's “neighbour” principle to encompass public policy concerns articulated in Caparo Industries Plc. v Dickman([1990] 1 All ER 568). The threestage Caparo test for establishing a duty of care requires(i) foreseeability of damage,(ii) a relationship characterised by the law as one of proximity or neighbourhood and(iii) that the situation should be one in which the court considers it would be fair, just and reasonable that the law should impose a duty of given scope on one party for the benefit of the other. In other jurisdictions, such as New Zealand, there is now a two-part test for novel fact situations, where the establishment of a duty must be balanced against applicable policy matters.
Because of the significance of the case, in 1996 former Supreme Court of British Columbia Justice Martin Taylor, Vancouver lawyer David Hay and filmmaker Michael Doherty produced an educational documentary of the case. Besides recreating the events leading up to the case and “interviews” with actors playing the significant participants in the case, the production includes a 1995 interview with Lord Denning—then aged 96.This was one of the last interviews with Lord Denning, who died three years later. The film has been exhibited worldwide.
1. a person is not guilty of an offense unless his liability is based on conduct that includes(1) a voluntary act or(2) the omission to perform an act of which he is physically capable.
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2. Damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract.
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3. On 7 February 2008, the Philippines requested consultations with Thailand concerning a number of Thai fiscal and customs measures affecting cigarettes from the Philippines.
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4. The share capital of a corporation can be divided into different classes and each class may have differing rights as to voting, dividends and the return of capital on a winding up.
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5. The laws of tort and crime, despite their common origin in revenge and deterrence, long ago parted company and assumed distinctly separate functions.
材料一:Liebeck v.McDonald's Restaurants, also known as the “McDonald's coffee case,” is a 1994 product liability lawsuit that became a flashpoint in the debate in the U.S. over tort reform after a jury awarded ＄2.86 million to a woman who burned herself with hot coffee. The trial judge reduced the total award to ＄640,000, and the parties settled for a confidential amount before an appeal was decided. The case entered popular understanding as an example of frivolous litigation; ABC News calls the case “the poster child of excessive lawsuits.”
Liebeck's attorneys argued that McDonald's coffee was “defective”, claiming that it was too hot and more likely to cause serious injury than coffee served at any other place. Moreover, McDonald's had refused several prior opportunities to settle for less than the ＄640,000 ultimately awarded. Reformers defend the popular understanding of the case as materially accurate; note that the vast majority of judges to consider similar cases dismiss them before they get to a jury; and argue that McDonald's refusal to offer more than a nuisance settlement reflects the meritless nature of the suit rather than any wrongdoing.
2. This is not a translation test. A literal translation of the above Chinese into English may result in loss of score.
3. The length of the essay shall be NO LESS THAN 120 WORDS.
考试日期： 年 月 日
考试时间：120分钟
考试形式：闭卷笔试
《法律英语》试卷四
学院：_____班级：_____学号：_____姓名：_____任课教师：_____
Ⅰ. Identify, explain and or paraphrase the following terms.10个阿拉伯数字与10个英文字母之间存在唯一对应的关系，请将英文字母代码填写在题后的括号内。错填、多填或未填均不得分。（本大题共10小题，每题2分，共20分）
1．interrogation（ ）
6．breach（ ）
2．Attorney General（ ）
7．gratuitous promise（ ）
3．avoid（ ）
8．unilateral contract（ ）
4．bench（ ）
9．duress（ ）
5．beyond a reasonable doubt（ ）
10．negotiable instrument（ ）
A. A group of judges hearing a case and judging on a case.
B. Interviewing as commonly employed by officers of the police and military.
C. The main legal advisor to the government, and in some jurisdictions he or she may in addition have executive responsibility for law enforcement or responsibility for public prosecutions.
D. To nullify, upon some legal ground, an obligation or transaction to which one is a party; especially, in a situation where one party to a contract lacked the capacity to contract.
E. Highest level of proof, used mainly in criminal trials.
F. A violation of legal duty.
G. A specialized type of “contract” for the payment of money that is unconditional and capable of transfer by negotiation. Common examples include cheques, promissory notes and bills of exchange or draft.
H. A promise made without consideration, generally not enforceable.
I. Any unlawful threat or coercion used ... to induce another to act[or not act] in a manner[they] otherwise would not[or would].
J. It is onesided contract where only one party(known as offeror) makes a promise to pay in exchange for an act or work done by another party(known as the offeree.)
Ⅱ. True or False.本题为判断正误题，对的用代码T，错的用代码F，请将代码填写在题前的括号内。不填、错填、填反均不得分。（本题共5小题，每题2分，共10分）
（ ）1．A void contract is a nullity from its inception.
（ ）2. A contract entered into by a person who lacks contractual capacity will not be voidable by the person who lacks the capacity.
（ ）3. In tort cases, the burden of proof ordinarily rests on the defendant.
（ ）4. To convict a person of a crime, we need to follow the preponderance of evidence standard.
（ ）5. The defense has the right to crossexamine witnesses.
Ⅲ. Case Analyses.（本大题共5小题，每小题6分，共30分）
请在每小题后的横线上用中文作答。错答、不答、使用英文做答均无分。
LUCY et al v.ZEHMER et al 196 Va.493, 84 S.E.2d 516 Va.1954
It was W.O.Lucy and J.C.Lucy, complainants, institute this suit against A.H.Zehmer and Ida S.Zehmer, his wife, defendants, to have specific performance of a contract by which it was alleged the Zehmers had sold to W.O.Lucy a tract of land owned by A.H.Zehmer in Dinwiddie county containing 471.6 acres, more or less, known as the Ferguson farm, for ＄50,000. 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 complete for ＄50,000.00, title satisfactory to buyer,” and signed by the defendants, A.H.Zehmer and Ida S.Zehmer.
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 that Lucy picked it up, read it, put it in his pocket, attempted to offer Zehmer ＄5 to bind the bargain, which Zehmer refused to accept, and realizing for the first time that Lucy was serious, Zehmer assured him that he had no intention of selling the farm and that the whole matter was a joke. Lucy left the premises insisting that he had purchased the farm.
December 20 was on Saturday. Next day Lucy telephoned to J.C.Lucy and arranged with the latter to take a half interest in the purchase and pay half of the consideration. On Monday he engaged an attorney to examine the title. The attorney reported favorably on December 31 and on January 2 Lucy wrote Zehmer stating that the title was satisfactory, 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, mailed on January 13, asserting that he had never agreed or intended to sell.
Thereupon complainants brought this suit. The issue is whether the agreement was entered into with contractual intent or was merely a joke.
BUCHANAN, J., delivered the opinion of the court.
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. It is contradicted by other evidence as to the condition of both parties, and rendered of no weight by the testimony of his wife that when Lucy left the restaurant she suggested that Zehmer drive him home. The record is convincing that Zehmer was not intoxicated to the extent of being unable to comprehend the nature and consequences 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.” Lucy told him he had better change it to “We” because Mrs. Zehmer would have to sign it too. Zehmer then tore up what he had written, wrote the agreement quoted above and asked Mrs. Zehmer, who was at the other end of the counter ten or twelve feet away, to sign it. Mrs. Zehmer said she would for ＄50,000 and signed it. Zehmer brought it back and gave it to Lucy, who offered him ＄5 which Zehmer refused, saying, “You don't need to give me any money, you got the agreement there signed by both of us.”
He 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 the examination of the title, the completeness of the instrument that was executed, 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 to his secret and unexpressed intention. The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.”
The mental assent of the parties is not requisite for the 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 except when 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. If his words and acts, judged by a reasonable standard, manifest an intention to agree, it is immaterial what may be the real but unexpressed state of his mind. 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.
1．A contract has been defined as “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty”.
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2. The prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify if the defendant chooses to remain silent.
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3. The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power.
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4. Instead of amending the Articles of Confederation, however, the convention created the Constitution and a completely new type of federal government, which the delegates believed was much better to resolve the problems of the nation.
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5. It is clear that many delegates to the Constitutional Convention wanted the Supreme Court to review the constitutionality of state legislation.
