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Exercises on the text. Task 1. Read the text and translate it into Russian.
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Task 1. Read the text and translate it into Russian.
Task 2. Study the following legal terms and their definitions, supply corresponding Russian terms, use them in situations of your own.
1. vitiate, vb. 1. To impair; to cause to have no force or effect. 2. To make void or voidable; to invalidate either completely or in part < fraud vitiates a contract>. 3. To corrupt morally. – vitiation, n. – vitiator, n.
2. factor, n. 1. An agent or cause that contributes to a particular result. 2. An agent who is employed to sell properly for the principal and who possesses or controls the property; a person who receives and sells goods for a commission. · A factor differs from a broker because the factor possesses or controls property. – Also termed commission merchant; del credere bailiff. 3. One who buys accounts receivable at a discount. 4. A garnishee.
3. defect, n. An imperfection or shortcoming, esp. in apart that is essential to the operation or safety of a product. – defective, adj.
4. mistake, n. 1. An error, misconception, or misunderstanding; an erroneous belief. 2. Contracts. The situation in which the parties to a contract did not mean the same thing – or when one or both, while meaning the same thing, formed untrue conclusions about the subject matter of the contract – as a result of which the contract may be rendered void.
5. mistake of fact. A mistake about a fact that is material to a transaction. – Also termed error in fact; error of fact.
6. mistake of law. A mistake about the legal effect of a known fact or situation. – Also termed error in law; error of law.
7. mutual mistake. 1. A mistake in which each party misunderstands the other’s intent. – Also termed bilateral mistake. 2. A mistake that is shared an relied on by both parties to a contract. · A court will often revise or nullify a contract based on a mutual mistake about a material term. – Also termed (in sense 2) common mistake.
8. essential mistake. Contracts. A mistake serious enough that no real consent could have existed, so that there was no real agreement.
9. nature, n. 1. A fundamental quality that distinguishes one ting from another; the essence of something. 2. A wild condition, untouched by civilization. 3. A disposition or personality of someone or something. 4. Something pure or true as distinguished from something artificial or contrived. 5. The basic instincts or impulses of someone or something. 6. The elements of the universe, such as mountains, plants, planets, and stars.
10. capacity, n. 1. The role in which one performs an act < in her corporate capacity>. 2. A legal qualification, such as legal age, that determines one’s ability to sue or be sued, to enter into a binding contract, and the like. · Unless necessary to show the court’s jurisdiction, a plaintiff’s pleadings need not assert the legal capacity of any party. A party wishing to raise the issue of capacity must do so by specific negative pleading. – Also termed capacity to use. 3. The mental ability to understand the nature and effect of one’s acts. – Also termed mental capacity.
11. misleading, adj. (Of an instruction, direction, etc.) delusive; calculated to be misunderstood.
12. render, vb. 1. To transmit or deliver < render payment>. 2. (Of a judge) to deliver formally < render a judgement>. 3. (Of a jury) to agree on and report formally < render a verdict>. 4. To pay as due < render an account>.
13. subject matter. The issue presented for consideration; the thing in which a right or duty has been asserted; the thing in dispute.
14. identity, n. 1. The identical nature of two or more things; esp., in patent law, the sameness in two devices of the function performed, the way it is performed, and the result achieved. · Under the doctrine of equivalents, infringement may be found even if the accused device is not identical to the claimed invention. 2. Evidence. The authenticity of a person or ting.
15. separation agreement. A n agreement between spouses in the process of a divorce or legal separation concerning alimony, property division, child custody and support, and the like. – Also termed separation order (if approved or sanctioned judicially).
16. severance, n. 1. The act of cutting off; the state of being cut off. 2. The separation of claims by the court, of multiple parties either to permit separate actions on each claim or to allow certain interlocutory orders to become final. – Also termed severance of actions; severance of claims. 3. The termination of a joint tenancy in common. 4. The removal of anything (such as crops or minerals) attached or affixed to real property rather than a part of the land. – sever, vb. – severable, adj.
17. misconduct. 1. A dereliction of duty; unlawful or improper behaviour. 2. An attorney’s dishonesty or attempt to persuade a court or jury by using deceptive or reprehensible methods.
18. nullity. 1. Something that is legally void. 2. The fact of being legally void.
19. non est factum. [Latin “it is not his deed”] Hist. A denial of the execution of an instrument sued on.
20. indorsement, n. 1. The placing of a cignature, sometimes with an additional notation, on the back of a negotiable instrument to transfer or guarantee the instrument or to acknowledge payment. 2. The signature or notation itself. – Also spelled endorsement. – indorse, vb.
21. proceeds, n. 1. The value of land, goods, or investments when converted into money; the amount of money received from a sale. 2. Something received upon selling, exchanging, collecting, or otherwise disposing of collateral.
22. pawnbroker, n. One who lends money, usu. At a high interest rate, in exchange for personal property that is deposited as security by the borrower. – pawnbroking, n.
23. specific performance. A court-ordered remedy that requires precise fulfilment of a legal or contractual obligation when monetary damages are inappropriate or inadequate, as when the sale of real estate or a rare article is involved. - Also termed specific relief.
24. rectification, n. 1. A court’s equitable correction of a contractual term that is misstated; the judicial alteration of a written contract to make it conform to the true intention of the parties when in its original form, it did not reflect this intention. 2. A court’s slight modification of words of a statute as a means of carrying out what the court is convinced must have been the legislative intent.
Task 3. Answer the following questions.
1. What is mistake? Does it affect the validity of a contract?
2. What is the difference between mistake of law and mistake of fact?
3. Name the mistakes of fact that render a contract void.
4. What is the difference between a mutual mistake as to the identity of the subject-matter and a fundamental common mistake? Give examples.
5. What three elements must be present to render a contract void in case of mistaken signing of written documents? Give examples.
6. Give examples to illustrate mistake of identity. Comment on them.
7. what other consequences of mistake can you name?
Task 4. Fill in the required legal term.
| factor (4) • vitiate (2) • nullity (2) •capacity (2) • proceeds |
1. The new statute … any common-law argument that the plaintiffs might have. 2. Mr. Lawrence complains that his children were … by their governess. 3. Punishment was a … in the court’s decision. 4. A … was employed to sell goods for the company. 5. The company sold its receivables to a … at only 5% of their stated value. 6. The … held$400 of the debtor’s property when the writ of the garnishment was served. 7. She had full … to bind the corporation with her signature. 8. His acute pain reduced his … to understand the hospital’s admission form. 9. The forged commercial transfer is a …. 10. She filed a petition for … of marriage. 11. The … are subject to attachment.
Task 5. Translate into Russian.
1. A factor by the rules of common law and of mercantile usage is an agent to whom goods are consigned for the purpose of sale, and he has possession of the goods, power to sell them in his own name, and a general discretion as to their sale. He may sell them on the usual terms of credit, may receive the price, and give a good discharge to the buyer. 2. The word mistake is generally used in the law of contracts to refer to an erroneous belief – ‘a belief that is not in accord with the facts.’ To avoid confusion, it should not be used, as it sometimes is in common speech, to refer to an improvident act, such as the making of a contract, that results from such an erroneous belief. Nor should it be used, as it sometimes is by courts and writers, to refer to what is more properly called a misunderstanding, a situation in which two parties attach different meanings to their language. 3. The general issue in covenant is ‘non est factum’ which is a formal denial that the deed is the deed of the defendant. 4. Proceeds differ from other types of collateral because they constitute any collateral that has changed in form. For example, if a farmer borrows money and gives the creditor a security interest in the harvest, the harvested wheat is collateral. If the farmer then exchanges the harvest for a tractor, the tractor becomes the proceeds of the wheat. 5. Specific performance is an equitable remedy that lies within the court’s discretion to award whenever the common-law remedy is insufficient, either because damages would be inadequate or because the damages could not possibly be established. 7. As an equitable remedy, the court alters the terms as written so as to express the true intention of the parties. The court might do this when the rent is wrongly recorded in a lease or when the area of land is incorrectly cited in a deed. 8. Courts engage in rectification when they read and as or or shall as may, as they frequently must do because of unfastidious drafting
Task 6. Fill in the appropriate article.
1. In this Restatement … word ‘mistake’ is used to refer to … erroneous belief. … party’s erroneous belief is therefore said to be … mistake of that party. … belief need not be … articulated one, and … party may have … belief as to … fact when he merely makes … assumption with respect to it. Without being aware of alternatives. … word ‘mistake’ is not used here, as it is sometimes used in common speech, to refer to … improvident act, including … making of … contract, that is … result of such … erroneous belief. This usage is avoided here for … sake of clarity and consistency. Furthermore, … erroneous belief must relate to … facts as they exist at … time of … making of … contract. … party’s prediction or judgement as to events to occur in … future, even if erroneous, is not … ‘mistake’ as that word is defined here. … erroneous belief as to … contents or effect of … writing that expresses … agreement is, however, … mistake. … mistake alone, in … sense in which … word is used here, has no legal consequences. … legal consequences of mistake in connection with … creation of contractual liability are determined by substantive rules. 2. … term ‘common mistake’ is more usually, but less grammatically, referred to as ‘mutual mistake’. Cheshire and Fifoot on Contract have made … heroic effort to introduce and establish … more correct term, and it does seem to be gaining ground. However, … beginner is warned that … term ‘mutual mistake’ is nearly always used by … Courts to mean what we here call ‘common mistake’. 3. … clever indorser can subscribe his or her name under … variety of … magic phrases. … qualified indorsements (‘without recourse’) limit … liability of … indorser if … instrument is dishonoured. … restrictive indorsements such as ‘for deposit only’, ‘pay any bank’, and … like set … terms for further negotiation of … instrument. Their main purpose is to prevent thieves and embezzlers from cashing checks.
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