COMMERCIAL LAWPDF电子书下载

Ⅰ.INTRODUCTION 1

Law in General: Its Classification and Sources 1

The Sources of Law 4

Enacted or Written Law 5

Common or Unwritten Law 6

Commercial Law and Its Study 7

What May Be Acquired by a Study of Business Law 8

PART Ⅰ LAW OF CONTRACT 13

Ⅱ.CONTRACT DEFINED 13

Definition 14

Kinds of Contracts 16

Validity of Contracts 18

Ⅲ.THE FORMATION OF CONTRACTS: （1） PARTIES 20

Party Defined 20

1. Infants or Minors 20

2. Insane Persons 25

3. Drunkards 26

4. Married Women 27

Ⅳ.THE FORMATION OF CONTRACTS: （2） OFFER AND ACCEPTANCE 29

Introductory 29

A Serious Intention to Enter into an Agree-ment Is Necessary 30

The Offer and Acceptance Must Be Definitely Made 33

Ignorance of Contract Terms Forms No Excuse 35

Communication of Intention Is Necessary to Make an Offer 36

Offer May Be Withdrawn Before Accept-ance 38

Absence of Time Limit for Acceptance ImpliesReasonable Diligence 39

Rejection or Counter Proposition Closes an Offer 40

Acceptance of an Offer Bind’s Both Parties 41

Ⅴ.THE FORMATION OF CONTRACTS: （3） REALITY OF CONSENT 43

1. Mistake 44

2. Fraud 45

What Constitutes a Fraud 45

Statement of Opinion Differing from the Statement of Fact 45

Is Silence a Fraud? 47

3. Duress or Force 49

4. Undue Influence 49

Ⅵ.THE FORMATION OF CONTRACTS: （4） CONSIDERATION AND （5） LEGALITY 52

Definition and Necessity of Consideration 52

The Inadequacy of Consideration Usually Has No Effect upon the Binding Force of Contract 54

Insufficient Consideration Discussed 55

1. Moral Consideration 55

2. Past Consideration 56

3. Impossible Consideration 56

The Doing of a Legal Duty Is No Considera-tion 57

Contracts Under Seal 57

Legality of the Contract 58

Particular Classes of Illegal Agreements 58

Wager Contracts 58

Contracts in Restraint of Trade 59

Restraint of Marriage 60

Injuring Public Service 60

Usurious Agreement 60

Sunday Agreement 60

Ⅶ.THE FORM AND EXPRESSION OF A CONTRACT 62

Introductory 62

Oral Contracts 62

Implied Contracts 63

Written Contracts 64

The Famous Statute of Frauds and Perjuries 64

The Form of a Contract 66

Contracts Under Seal 67

The Parol Evidence Rule 67

Ⅷ.THE TRANSFER AND DISCHARGE OF CONTRACTS 69

The Transfer of Contracts 69

1. Transfer by Subsequent Agreement 70

2. Transfer by Operation of Law 72

The Discharge of Contracts 73

1. Discharge by Performance 73

2. Discharge by Agreement 74

3. Discharge by Breach 74

4. Discharge by Impossible Performance 75

a. Destruction of Subject Matter 76

b. Changed Laws 76

c. Death or Disability 77

d. Act of Law 77

e. Act of Parties 77

5. Discharge Through the Operation of Law 78

PART Ⅱ LAW OF AGENCY 83

Ⅸ.THE FORMATION OF AGENCY 83

Introduction 83

Definition 83

Classes of Agents 83

1. Agency Created by Express Grant 84

Power of Attorney 85

2. Agency Implied from Conduct or Re-lationship 86

A. From Conduct 86

B. From Relationship 86

3. Agency Presumed Through Estoppel 87

4. Agency Created by Ratification 87

Ⅹ.RIGHTS AND OBLIGATIONS OF PRIN-CIPALS 89

Agnts and Their Parties 89

1. The Agent’s Obligations Towards His Principal 89

2. The Agent’s Obligations Towards Third Parties 92

3. The Principal’s Obligations Towards His Agent 93

4. The Principal’s Obligations Towards Third Parties 95

5. The Obligations of the Third Parties Towards the Principal 96

6. The Obligations of Third Parties To-wards the Agent 97

ⅩⅠ.THE TERMINATION OF AGENCY 99

1. Termination of Agency by Agree-ment 99

2. Termination of Agency by Perform-ance 99

3. Termination of Agency by Breach 100

4. Termination of Agency by Impos-sibility 101

5. Termination of Agency by Bankruptcy 101

ⅩⅡ.MASTER AND SERVANT； OR EM-PLOYER AND EMPLOYEE 102

Duties of the Master 102

The Master’s Liability 104

How a Servant May Be Discharged 106

1. Willful Disobedience of Reasonable and Lawful Order 106

2. Gross Moral Misconduct 106

3. Incompetency or Permanent Disability 106

4. Habitual Neglect in Performance of Duties 107

PART ⅢLAW OF SALES 111

ⅩⅢ.DEFINITIONS AND EXPLANATIONS 111

“Sales of Goods” as a Subdivision of Law 111

Definition 111

Sales Distinguished from Other Transactions 113

Sales and Bailments Distinguished 113

Sales and Gifts Distinguished 114

ⅩⅣ.WARRANTIES IN SALES 116

Warranty Defined 116

Express Warranties 116

Caveat Emptor 117

Implied Warranty 118

a. Warranty of Title 118

b. Warranty of Quality 119

c. Sale by Description 120

d. Sale by Sample 120

Remedies for Breach of Warranty 121

ⅩⅤ.THE TRANSFER OF OWNERSHIP 123

1 . When the Title Passes to the Buyer 123

Risk of Loss 125

2. What Title Passes to the Buyer 126

a. Negotiable Instruments 127

b. Where the Owner Deceives the Third Person as to the Title 127

c. Two Purchasers of the Same Goods 127

ⅩⅥ.THE RIGHTS OF THE SELLER OF PERSONAL PROPERTY 130

1. The Seller’s Right to Set Aside the Contract if the Buyer Has Been Guilty of Fraud 130

2. The Seller’s Lien to Secure Payment of the Purchase Money 132

3. The Seller’s Right of Stoppage in Transit 133

ⅩⅦ.THE RIGHTS OF THE BUYER OF PERSONAL PROPERTY 135

1. The Buyer’s Right to the Exact Performance According to the Agreement by the Seller 135

2. The Seller’s Right to a Clear Title to the Property Purchased 138

PART Ⅳ LAW OF NEGOTIABLE INSTRUMENTS 141

ⅩⅧ.NATURE AND FORMS OF NEGOTI-ABLE INSTRUMENTS 141

Nature and Origin of Negotiable Instru-ments 141

Forms of Negotiable Instruments 143

1. Promissory Notes 143

Promissory Note Defined and Illustrated 143

Parties to Promissory Notes 144

Special Forms of Promissory Notes 145

2. Bills of Exchange 146

Bills of Exchange Defined and Il-lustrated 146

Bills of Exchange in Sets 147

Parties to Bills of Exchange 147

Special Forms of Bills of Exchange 147

Another Form of Bill of Exchange or Draft or a Trade Acceptance 148

3. Checks 148

Definition of Check 148

Parties to Checks 149

Rights of the Holder Against the Bank 149

ⅩⅨ.REQUISITES OF NEGOTIABLE IN-STRUMENTS 151

Purpose of Formal Requisities 151

The Formal Requisites Stated 151

1. What Is Meant by “ in Writing” 151

2. What Is Meant by “ Unconditional or Absolute Promise” 153

Reference to Transaction or Con-sideration 154

Reference to a Particular Fund or Account 155

3. What Is Meant by “A Certain Sum of Money ” 155

4. What Is Meant by “ Payable on Demand ” 157

5. What Is Meant by “ Determinable Future Time” 157

6. What Is Meant by “ Payable to Bearer or to Order ” 158

7. What Is Not Required 160

ⅩⅩ.NEGOTIATION OF NEGOTIABLE PA-PERS 162

Negotiation Defined 162

Negotiation May Be Accomplished in Two Ways 162

Kinds of Indorsements 163

Indorsement in Blank 163

Special Indorsement 164

Qualified Indorsement 166

Conditional Indorsement 166

Restrictive Indorsement 166

Indorser’s Warranties 167

1. That the Instrument Is Genuine and in All Respects What It Purports to Be 167

2. That He Has a Good Title to It 167

3. That All Prior Parties Had Capacity to Contract 167

4. That the Instrument Is at the Time of Indorsement Valid 168

ⅩⅩⅠ.RIGHTS OF TRANSFEREE 169

Holder in Due Course Must Take Paper by Proper Indorsement if It Is Necessary 170

Holder in Due Course Must Give Value for the Instrument 170

Holder in Due Course Must Acquire Paper in Good Faith 171

Holder in Due Course Must Acquire Paper Before Due 172

The Party Who Purchased the Paper from a Holder in Due Course Is a Holder in Due Course 172

Right of a Holder in Due Course Against the Party Primarily Liable 173

Classification of Defenses 174

1. Personal Defenses 174

Fraud in the Inducement 174

Lack of Consideration 175

Failure of Consideration and Breach of Contract 175

Payment Before Maturity 176

Set-off 176

Theft or Lack of Delivery 177

2. Real Defenses 177

Want of Capacity to Make a Binding Contract 178

Forgery Is a Good Defense that Can Be Made Against a Holder in Due Course 178

Fraud in the Inception or Execution 178

Material Alteration 179

ⅩⅩⅡ.LIABILITY OF PARTIES 181

Parties Primarily Liable 181

Maker of a Note 181

Acceptor of a Bill 181

Parties Secondarily Liable 181

Transferors 182

Drawer of a Bill 183

Drawer of a Check 183

Contract of Accommodation Parties 183

Liability of Accommodation Party 184

Acceptance for Honor 184

ⅩⅩⅢ.PROCEDURE TO CHARGE PARTIES SECONDARILY LIABLE 186

General Statement 186

Presentment for Payment 187

Presentment Required 187

Day for Presentment 188

Place of Presentment 188

Presentment — by Whom 189

Presentment—to Whom 189

Presentment for Payment Excused 189

Presentment for Payment Waived 189

Notice of Dishonor 19oThe Requirement Stated 19oTo Whom to Be Given 191

By Whom to Be Given 191

How Given 191

Due Notice by Mail 192

Where to Be Sent 192

Notice Dispensed with 193

Protest of Bills of Exchange 193

Inland Bill—Foreign Bill 193

Certificate of Protest 194

By Whom Protest Is to Be Made 194

Time of Protest 195

Place of Protest 195

Protest for Better Security 195

Waiver of Protest 195

Protest Dispensed with 195

Delay in Making Protest Excused 196

ⅩⅩⅣ.DISCHARGE OF NEGOTIABLE IN-STRUMENTS 197

Meaning of Discharge 197

Discharge of the Paper Itself 197

Discharge by Payment 197

Payment of Party Accommodated 197

By Intentional Cancellation by the Holder 198

By Acquisition of the Paper at or After Maturity by the Principal Debtor 198

Discharge of Parties Secondarily Liable 198

In General 198

Failure to Present for Payment 199

Intentional Cancellation of Signature by Holder 199

By Valid Tender of Payment by Prior Party 199

By Release of Principal Debtor 199

By Extension of Time of Payment 199

PART Ⅴ LAW OF PARTNERSHIP 203

ⅩⅩⅤ.THE NATURE AND FORMATION OF PARTNERSHIPS 203

Introductory Comments 203

Business Associations 203

Partnership Defined 203

Sharing in Profits Not Enough to Con-stitute a Partnership 204

Partners Must Be Mutual Owners 205

Partners Are All Liable as Principals 206

Partnerships Are on the Personal Basis 207

Who May Be a Partner 207

Partnerships Classified 207

An Ordinary Partnership 207

A Limited Partnership 208

A Joint Stock Company 208

The Various Kinds of Partners 208

1. Ostensible Partners 208

2. Nominal Partners 208

3. Secret Partners 208

4. Silent Partners 208

5. Dormant or Sleeping Partners 209

How Formed 209

Articles of Copartnership 210

The Contract 211

The Firm Name 212

Partnership Property: Capital 213

ⅩⅩⅥ.THE RIGHTS AND OBLIGATIONS OF PARTNERS 215

The Relation of a Partner Towards His Fellows as a Principal of the Firm 215

Good Faith Between Partners 215

Partners Are Co-owners of the Firm’s Property 216

The Rule of the Majority 217

Partners Cannot Compete 217

A Partner’s Right to Deal with the Firm 218

The Authority of a Partner as an Agent of the Firm 218

General Discussion 218

Power of a Partner to Buy and Sell 219

Right of Partners to Buy and Sell upon Credit 220

Each Partner Is Liable for the Tort Committed by Other Partners 220

Limitations of Partners’ Authority 220

Partnership Accounts 221

Incoming Partners 221

Outgoing Partners 222

Secret Partners 222

A Partner’s Obligations to Firm Credi-tors 222

Right to Fellow Assets of Any Partner 222

Contests Between the Creditors of the Firm and the Creditors of the Indi-vidual Partner 223

ⅩⅩⅦ.THE TERMINATION OF PARTNER-SHIPS 225

Causes of Dissolution 225

1. Dissolution by Act of Parties 225

a. Dissolution by Lapse of Time 225

b. Dissolution by Mutual Agree-ment 226

c. Dissolution by the Transfer of a Partner’s Interests 226

2. Dissolution by Operation of Law 226

a. Dissolution by Death of a Partner 226

b. Dissolution by Bankruptcy 226

3. Dissolution by Court Decree 227

Disposition of Assets upon Dissolution 227

PART Ⅵ LAW OF CORPORATION 231

ⅩⅩⅧ.CORPORATIONS DISCUSSED IN GENERAL 231

The Corporation as a Legal Person 231

Powers of a Corporation in General 232

A Charter Essential 232

Corporations de Facto and de Jure 233

The Purposes of Incorporation 233

Kinds of Corporations 234

How Corporations Are Formed 235

Capital Stock 236

ⅩⅩⅨ.THE POWERS OF A CORPORATION 238

The Powers Inherent in Corporate Ex-istence 238

In General 238

Power to Sue and Be Sued, to Contract,and to Own Property 238

Power to Commit Crimes 238

Power to Commit Tort 238

Express Charter Powers 239

In General 239

Statement of Powers 239

Implied Powers 239

Implied Power to Do All that Is Necessary to Accomplish the Main Purpose for Which the Corporation Is Created 240

Implied Power to Own Real Estate 240

Implied Powers to Borrow and Lend Money 240

Effect of Ultra Vires 241

Right of Stockholders to Prevent Ultra Vires 241

Right of Either Party to an Executory Contract Ultra Vires to Repudiate It 241

Where Benefits Have Been Received by a Corporation 241

ⅩⅩⅩ.THE CORPORATE STRUCTRE 243

The Charter 243

The By-laws 243

The Stockholders 243

The Directors 245

The Executive Officers 246

The President 246

The Secretary 246

The Treasurer 247

Other Officers 247

The Employed Staff 247

ⅩⅩⅩⅠ.THE RIGHTS AND OBLIGATIONS OF STOCKHOLDERS 249

Their Rights 249

A Stockholder’s Right to Dividends 249

A Stockholder’s Right to Subscribe for New Stock 249

A Stockholder’s Right toVote at Corporate Meetings 250

A Stockholder’s Right to Inspect the Company’s Book and Interfera in the Management of Its Affairs 250

Their Obligation 251

Their Liability on Stock Subscription 251

ⅩⅩⅩⅡ.THE TERMINATION OF CORPORA-TIONS 254

1.Termination of Corporation by Agerrment 254

2.Termination of Corporation by Performance 255

3.Termination of Corporation by Breach 255

4.Termination of Corporation by Imppossibility 255

5.Termination of Corporation by Bankruptcy or Insolvency 256

Comparative Difference Between Part-nership and Corporation 257

PART Ⅶ LAW OF INSURANCE 263

ⅩⅩⅩⅢ.INSURANCE DISCUSSED IN GENERAL 263

Insuiance Terms in Common Use 264

Kinds of Companies 265

Kinds of Insuiance 265

1.Property Insuiance 265

a.Fire Insuiance 266

b.Marine Insuiance 266

c.Casualty Insuiance 266

2.Personal Insuiance 266

a.Life Insuiance 266

b.Accident Insuiance 266

c.Credit Insuiance 266

d.Employer's Liability Insuiance 266

e.Automobile Liability Insuiance 266

ⅩⅩⅩⅣ.FIRE INSURANCE 268

Insuiable Interest Necessary 268

Utmost Good Faith Required 269

Assignment of Interest in the PolicyV 271

Notice and Proof of Loss 271

ⅩⅩⅩⅤ.LIFE INSURANCE 273

Kind of Policies 273

1.Straight Life 273

2.Term Insurance 273

3.Limited Payment 274

4.Annuity Insurance 274

Insurable Interest 274

Warranty,Representation,and Concealment 275

Suicide and Execution for Crime 276

Notice and Proof of Death 277

ⅩⅩⅩⅥ.SUNDRY INSURANCE CONTRACTS 278

Marine Insurance 278

Accident Insurance 279

Burglary Insuiance 280

Plate Glass Insuiance 280

Automobile Insuiance 280