第6章 英美合同法篇

第一节

The Workmen's Compensation Law of New York State assures to the workers entitled the compensation thereby provided.But，it is said，strikes at the fundamentals of constitutional freedom of contract.We recognize that the legislation under review does measurably limit the freedom of employer and employee to agree respecting the terms of employment.

However，in our opinion，the limit of the contract freedom of employer and employee is a reasonable exercise of the police power of the state.And for this reason：The subject matter in respect of which freedom of contract is restricted is the matter of compensation for human life or limb lost or disability incurred in the course of hazardous employment.

And the public has a direct interest in this as affecting the common welfare.It cannot be doubted that the state may prohibit and punish self-maiming and attempts at suicide. It may prohibit a man from bartering away his life or his personal security.Indeed，the right to these is often declared，in bills of rights，to be “natural and inalienable.” And the authority to prohibit contracts made in derogation of a lawfully-established policy of the state respecting compensation for accidental death or disabling personal injury is equally clear.

The system of compulsory compensation has been found to be within the power of the state.The state has the power to require the employer to furnish satisfactory proof of his financial ability to pay the compensation，and to deposit a reasonable amount of securities for that purpose.No question is made but that the terms imposed upon this railroad company were reasonable in view of the magnitude of its operations，the number of its employees，and the amount of its pay roll.

【来源：New York Central Railroad Company v.Sarah White.37 S.Ct.247（Supreme Court of the United States）】

1.What does “legislation” mean in Paragraph 1？( )

A.the process of making or enacting a statute

B.the statute enacted by a formal procedure by the legislative branch

C.the whole body of enacted laws

D.the field of study concentrating on statutes

2.What does “It” stand for in Paragraph 3？( )

A.suicide

B.self-maiming

C.the public

D.the state

3.Which of the following statements is TRUE？( )

A.The right of life or personal security is often excluded by bills of rights.

B.The public has no direct interests in personal security.

C.The compensation for accidental death or personal injury is a lawfully established policy of a state.

D.The contract that violates the statute of worker's compensation is enforceable.

4.Which is the main idea of this text？( )

A.The Workmen's Compensation Law did not violate the constitutional freedom of contract.

B.The public has a direct interest in the matters affecting the common welfare.

C.The state may prohibit self-maiming and attempts at suicide.

D.The state does not have power to enact a statute of compulsory workers' compensation.

第二节

The test that has been developed by the common law for determining the enforceability of promises is the doctrine of consideration.This is a crude and not altogether successful attempt to generalize the conditions under which promises will be legally enforced.

Consideration requires that a contractual promise be the product of a bargain.However，in this usage，“bargain” does not mean an exchange of things of equivalent.It means a negotiation resulting in the voluntary assumption of an obligation by one party upon condition of an act or forbearance by the other.Consideration thus insures that the promise enforced as a contract is not accidental，casual，or gratuitous，but has been uttered intentionally as the result of some deliberation，manifested by reciprocal bargaining or negotiation.In this view，the requirement of consideration is no mere technicality，historical anachronism，or arbitrary formality.

It is an attempt to be as reasonable as we can in deciding which promises constitute contracts.Although the doctrine has been criticized，no satisfactory substitute has been suggested.It is noteworthy that the civil law has a corresponding doctrine of “causa” which，to the eye of a common-law lawyer，is not much different than consideration.Consideration，as essential evidence of the parties' intent to create a legal obligation，must be something adopted and regarded by the parties as such.

Thus，the same thing may be consideration or not，as it is dealt with by the parties.In substance，a contractual promise must be of the logical form：“If...(consideration is given)...then I promise that...” Of course，the substance may be expressed in any form of words，but essentially this is the logical structure of those promises enforced by the law as contracts.

【来源：E.J.Baehr and Another v.Penn-O-Tex Oil Corp.258 Minn.533，104 N.W.2d 661(1960)，Supreme Court of Minnesota】

1.What does “consideration” mean in Paragraph 1？( )

A.the process of giving careful thought to something

B.a discussion of a topic in a meeting

C.information that should be kept in mind when making a decision

D.an element that is necessary for an agreement to be enforceable

2.According to Paragraph 2，Which of the following statement is NOT TRUE？( )

A.A contractual promise is the product of bargain under the principle of consideration.

B.A bargain is the process of exchanging things of the same value.

C.Consideration insures the contract is the product of reciprocal negotiation.

D.The requirement of consideration is no mere arbitrary formality.

3.What can you infer from Paragraph 3？( )

A.The doctrine of consideration is a reasonable way to decide whether promises constitute contracts.

B.The doctrine of consideration has been substituted by other doctrines.

C.The civil law doctrine of “causa” is different from the doctrine of consideration.

D.The parties to a contract need not to adopt something as the consideration.

4.Which of the following statements is a contractual promise if the other party agrees with the statement？( )

A.I promise that I will buy you a car.

B.You should buy me a car.

C.If you clean my house，I will pay you ＄50.

D.I am going to your house tomorrow.

第三节

In United States，an ambiguity exists when a contract is reasonably susceptible to different constructions，and whether an ambiguity exists is a question of law.Further，if terms are ambiguous，the interpretation is to be construed against the one who created the ambiguity.

Had the renewal provision of the contract only contained the language，“we may change the premium rates for this policy” and “the premium for this policy is expected to increase,” we would agree with defendant that such language unambiguously states only that premium and benefit changes would occur from time to time.Because such language portends to say nothing of the frequency or number of changes，defendant's interpretation could be the only reasonable interpretation and no ambiguity would exist.

However，the renewal premium provision does not stop there.The last sentence of the previously quoted language states that “the premium for this policy is expected to increase each year.” (Emphasis added.) It has long been held “that no word in a contract is to be considered as mere surplusage and thus meaningless.” Indeed，“in construing a contract，meaning and effect must be given to every part，and no part should be rejected as surplusage since it is presumed that each provision was inserted deliberately and for a purpose.”

Presuming that the words “each year” were inserted deliberately and for a purpose，we judge that plaintiff's interpretation was reasonable，that the contract is ambiguous，and that the trial court erred in granting summary judgment to defendant.

【来源：Fern Horwitz v.Bankers Life and Casualty Company，319 Ill.App.3d 390，Appellate Court of Illinois，2001】

1.As to the ambiguity of contract，what can you infer from Paragraph 1？( )

A.The jury will decide whether an ambiguity exists.

B.Whether there is ambiguity or not is a question of fact.

C.The judge will decide whether the contract is ambiguous or not.

D.The interpretation of an ambiguous contract will be construed against the plaintiff.

2.What does “policy” mean in Paragraph 2？( )

A.the general principles by which a government is guided in its management of public affairs

B.a document containing a contract of insurance

C.a type of lottery

D.the aim of a special statute

3.As to the interpretation of an ambiguous contract，what can you infer from Paragraph 3？( )

A.Some words in a contract may be neglected during the interpretation.

B.A part of a contract may be meaningless.

C.Some terms of a contract may be rejected.

D.Each term of contact is designed for some kind of special purpose.

4.Based on the text，what is the decision of the judge？( )

A.The judge agreed with the interpretation of the plaintiff.

B.The decision of the trial court was accepted by the judge.

C.The interpretation of the defendant was accepted by the judge.

D.The words “each year” were neglected by the judge.

第四节

The world of Contracts，in a capitalist society，is the world we all live in：This is the domain of voluntary agreement and cooperation—and particularly of bargain and exchange.Unlike the world of torts—which impinges on our lives only in the occasional disaster or odd catastrophe—this form of economic activity is a major preoccupation for most of us，and comes to absorb the greater part of our active lives.

The function of the law of Contracts is to make possible，or at least to facilitate，this activity—it is to help private parties in planning for the future by protecting the expectations that arise from the making of bargains.Consider，for example，a simple agreement in which a seller promises to deliver corn to a buyer in six months，and in which the buyer promises to pay ＄10,000 for the corn on delivery.If when the time comes the seller should fail to deliver the corn，the buyer will have to buy substitute corn in replacement；if the price of corn has risen，the buyer needs a legal remedy—since his expectation was precisely that the agreement would provide protection against just such a rise in the market.The seller，of course，has a comparable interest in being protected against a falling market.Once such a simple deal is recognized，the parties might wish to engage in more sophisticated forms of planning for the future：They might，for example，extend the delivery period to five years；they might make the agreement cover many different installment deliveries under a long-term relationship；they might leave the quantity of corn flexible—for example，making it vary in terms of what the buyer might “require” in feeding his livestock；they might also leave open the price—making it vary according to some formula based on published market quotations.In all of this the parties need a legal framework that will give them a predictable，reliable，stable basis for their private ordering of their affairs.

Private，consensual，agreement has always been with us，of course.But in England and in the United States，it was only in the middle of the 19th century that the courts first began to elaborate，in a systematic way，the doctrines of Contract law that are familiar to us now；and it was only in the middle of the 19th century that commentators first began to produce “treatises” setting out these doctrines for practicing lawyers and law students.The great English cases of this period in which the rules of Contract law were first fixed—cases such as Hadley v.Baxendale，decided in 1854，and dealing with the measurement of damages for breach of contract，Raffles v.Wichelhaus，decided in 1864，and dealing with misunderstandings and the “meeting of the minds，”Dickinson v.Dodds，decided in 1876，and dealing with revocation of offers，and Foakes v.Beer，decided in 1884，and dealing with promises to perform “pre-existing legal duties”—all these are still familiar by name，and are still read by virtually all American law students to this day.

【来源：Alan Scott Rau,Robert F.Windfohr & Anne Burnett Windfohr，Contract Law in the United States：An Overview.

1.What does “offer” mean according to Paragraph 3?（ ）

A.to present in order to satisfy a requirement

B.a demonstration of the willingness of a party to enter into a bargain

C.to supply or provide something

D.to make available

2.The function of the law of Contracts is to，according to the author's point of view.（ ）

A.protect the interests of both parties directly

B.get the remedies if any party fails to perform the contract

C.help people plan for the future by protecting the expectations from the making of bargains

D.serve as the guidelines for lawyers and judges

3.Which of the following statements about this text is TRUE?（ ）

A.People are only involved with the law of contracts in the occasional disaster or odd catastrophe.

B.The making of a contract is a social activity other than an economic activity.

C.The doctrines of contract law are evident and inherent in the human society.

D.Some cases in the middle of 19th century elaborate the basic ideas of contract law.

4.What is the author's purpose of giving an example about the seller and buyer according to this text?（ ）

A.to demonstrate how to make a contract

B.to show the contents of a contract

C.to illustrate the development of the doctrine of the Contract Law

D.to demonstrate how the law of contracts facilitate to protect the expectations resulting from making bargains

第五节

After talking about the offer and acceptance，and the doctrine of consideration，this session will be concerned with the “rules” of Contract law—“rules” for the formation of contracts，for the interpretation of agreements，and for defenses to or discharge of contractual liability.But the main purpose of Contract law，after all，is to promote and protect private exchanges and the private ordering and structuring of transactions：And since this is true，it follows that all or almost all of the so-called “rules” of Contract law can be altered or varied by the parties themselves.Very little about Contract law is mandatory or imposed by law：Most of these rules are just “presumptions” to “fill the gaps” left by the parties in what they have explicitly agreed to，and which will apply in the absence of some stipulation by the parties to the contrary.(So these are often called “default” rules—that is，background rules that apply for lack of or in default of any other agreement).

A set of “default” rules is aimed at duplicating what the parties probably intended—and what they would have expressly incorporated into the contract had they taken the time and trouble to negotiate on the subject；it thereby saves them the time and trouble of doing so.If the parties to a contract had the time and the foresight to negotiate and express every element that could conceivably matter to their relationship—and had imagined any possible contingency，and any possible question that might arise—there would be little need for any “rules” of Contract at all.The Uniform Commercial Code (UCC) is rich with these implied terms：They tell us，for example，that a merchant seller is deemed to guarantee the title to，or the quality of，the goods he sells，and they also tell us how and when the goods are to be delivered，and how and when the price is to be paid，and who bears the risk of loss or damage to the goods.

And at the same time，the Code makes it clear that in accordance with “the principle of freedom of contract,” its provisions may with rare exceptions be “varied by agreement”：The parties may choose to “opt out” of these rules.It is true that some obligations—such as the continuing obligation on the parties to act in “good faith”—cannot in theory be disclaimed，but even there “the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.”

【来源：Alan Scott Rau,Robert F.Windfohr & Anne Burnett Windfohr，Contract Law in the United States：An Overview.

1.What does “consideration” mean in Paragraph 1 according to the text?（ ）

A.continuous and careful thought

B.a matter weighed or taken into account when formulating an opinion or plan

C.something bargained for and received by a promisor from a promise

D.an opinion obtained by reflection

2.The purpose of the default rules is to.（ ）

A.save the time for making a contract

B.fill the gaps left by the parties

C.discharge the contractual liability

D.help the parties to understand the functions of the contract

3.Which of the following statements about the default rules is TRUE according to the text?（ ）

A.Most of the rules for contract formation cannot be altered or varied by the parties.

B.The default rules override the principles agreed by both parties to the contract.

C.The default rules aim to promote and protect private exchanges during contract formation.

D.The default rules can save parties the time and trouble to list all the rules needed for contract formation.

4.Which of the following statements can be inferred from the text?（ ）

A.The standards by which the performance of acting in good faith by parties can be disclaimed under reasonable circumstances.

B.The UCC has listed all the possible rules without any exception during contract formation just to avoid any question that might arise.

C.Most of the rules are mandatory，so the parties should write them in the contract.

D.All the contract laws in the world should stipulate detailed rules for contract formation as done by American UCC.

第六节

An open-term contract is a preliminary contract with binding force that “expresses mutual commitment to a contract on agreed major terms，while recognizing the existence of open terms that remain to be negotiated.” While open-term contracts identify the terms that still require negotiation (e.g.，“rental price to be negotiated”)，missing-term contracts simply omit provisions regarding those terms.Under traditional contract doctrine，contracts with any indefiniteness were not legally binding，and courts enforced contracts with open or missing terms only where there was partial performance at the time of the breach.

The Uniform Commercial Code，on the other hand，adopted a different approach for contracts for the sale of goods.UCC stipulates：“Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.”The courts have interpreted this provision to allow enforceable contracts to include some terms that are undetermined.The Code also provides that trade usage and the parties' “course of dealing” may aid in the interpretation of contractual terms.With respect to quantity，UCC provides for “good faith” in output or requirements contracts and “best efforts” for exclusive-dealings contracts.Finally，the UCC supplies “gap fillers” regarding，inter alia，price，place of delivery，and time of delivery.Generally，the drafters of the UCC were much more inclined to find a valid contract than would have been possible under the common law，and the aim of the Code has been interpreted to be “to preserve a contract and fill in any gaps,” provided the parties intended to form a contract.

Courts often apply the UCC to bind parties to sale-of-goods contracts that include missing or open terms，although it is important to recognize that the Code does not save all contracts with open or missing terms.In H.C.Schmieding Produce Co.v.Cagle，Alvin Cagle，a potato farmer，claimed that a produce company (Schmieding) entered into an agreement to purchase his potato crop.Schmieding contested the formation of the contract and also argued that the contract，if entered into，was unenforceable for indefiniteness，due to its missing terms regarding time and place of delivery as well as warranties.The court，however，noted that the contract was governed by the UCC and held that even if the contract included missing terms，these terms could be supplied by the Code's gap fillers.The court specified that some UCC sections dealt with manner，place，and time of delivery，and that a few sections included warranty provisions.As a result，the contract was not invalid for indefiniteness.

【来源：Nellie Eunsoo Choi，“Contracts with Open or Missing Terms under the Uniform Commercial Code and the Common Law：A Proposal for Unification，”Columbia Law Review，Vol.103，No.1 (Jan.，2003)，pp.50-73】

1.Which of the following statements can best serve as the title for this passage?（ ）

A.How To Make an Open-Term and Missing-Term Contracts By UCC

B.The Difference Between an Open-Term Contract and a Missing-Term Contract

C.UCC：Provider of Gap Filler for Certain Sale-of-Goods Contracts

D.The Contract of Missing-Term Must Be Valid By UCC

2.From the author's perspective，the aim of UCC is to.（ ）

A.aid to interpret the contractual terms for the courts

B.provide the specific terms and solutions for the courts

C.to determine the validity of a sale-of-goods contract

D.to keep the contract intact and fill in any terms necessary for the contract validity

3.What is the major dispute in H.C.Schmieding Produce Co.v.Cagle?（ ）

A.Whether the contract is valid due to the missing terms regarding time and place of delivery as well as warranties.

B.Whether Schmieding should buy Cagle's potatoes.

C.Whether the UCC is applicable in their contract.

D.Whether the contract should omit the terms regarding warranty provisions.

4.Which of the following UCC provisions is irrelevant to this text's topic?（ ）

A.When a price left to be fixed otherwise than by agreement of the parties fails to be fixed through fault of one party the other may at his option treat the contract as cancelled or himself fix a reasonable price.

B.An action is taken reasonably if it is taken at or within the time agreed or，if no time is agreed，at or within a reasonable time.

C.Unless otherwise agreed，the place for delivery of goods is the seller's place of business or if he has none his residence.

D.The time for shipment or delivery or any other action under a contract if not provided in this Article or agreed upon shall be a reasonable time.

第七节

If I were to consider this matter without regard to recent developments in the law，there is no doubt that had the plaintiffs claimed it，they would have been entitled to recover ground rent at the rate of ￡2,500 a year from the beginning of the term，since the lease under which it was payable was a lease under seal which，according to the old common law，could not be varied by an agreement by parol，but only by deed.Equity，however stepped in，and said that if there has been a variation of a deed by a simple contract，the courts may give effect to it as is shown in Berry v.Berry[1929]2 K.B.316.That equitable doctrine，however，could hardly apply in the present case because the variation here might be said to have been made without consideration.

With regard to estoppel，the representation made in relation to reducing the rent，was not a representation of an existing fact.It was a representation，in effect，as to the future，namely，that payment of the rent would not be enforced at the full rate but only at the reduced rate.Such a representation would not give rise to an estoppel，because，as was said in Jorden v.Money (1854) 5 H.L.C.185，a representation as to the future must be embodied as a contract or be nothing.

The law has not been standing still since Jorden v.Money.There has been a series of decisions over the last fifty years which，although they are said to be cases of estoppel are not really such.They are cases in which a promise was made which was intended to create legal relations and which，to the knowledge of the person making the promise，was going to be acted on by the person to whom it was made and which was in fact so acted on.In such cases the courts have said that the promise must be honoured.They are really promises-promises intended to be binding，intended to be acted on，and in fact acted on.

In each case the court held the promise to be binding on the party making it，even though under the old common law it might be difficult to find any consideration for it.The courts have not gone so far as to give a cause of action in damages for the breach of such a promise，but they have refused to allow the party making it to act inconsistently with it.It is in that sense，and that sense only，that such a promise gives rise to an estoppel.In my opinion，the time has now come for the validity of such a promise to be recognized.The logical consequence，no doubt is that a promise to accept a smaller sum in discharge of a larger sum，if acted upon，is binding notwithstanding the absence of consideration：and if the fusion of law and equity leads to this result，so much the better.

【来源：Central London Property Trust Limited v. High Trees House Limited，King's Bench Division，（1947）K.B.130】

1.According to Paragraph 1，which of the following statements is TRUE？( )

A.An oral agreement to change a lease under seal is valid under the old common law.

B.Berry v Berry provides that a simple contract to modify a deed is validly binding.

C.The equitable doctrine for the variation of a deed by a simple contract is applicable to the present case even there's no consideration.

D.The rules on the variation of a deed under the old common law are the same as those under equity.

2.What does “estoppel” mean in Paragraph 2？( )

A.a representation of existing facts

B.a variation of a deed by a simple contract

C.a promise concerning a future act

D.a preclusion to prevents a man from denying a fact he previously claimed

3.According to the last two paragraphs，which of the following statements is NOT TRUE？( )

A.The promises mentioned in Paragraph 3 are real promises instead of those under estoppel.

B.In accordance with the last paragraph，the estoppel actually results from the judicial practice that the courts reject the party's inconsistency with the promise it made.

C.The judge in the current case is against the doctrine that promises without consideration can be valid.

D.The principle held in Jorden v Money has been changed over time.

4.What does the underlined “it” in Paragraph 4 refer to？( )

A.the promise

B.the party

C.each case

D.the old common law

第八节

Warranties are express or implied assertions that the goods being sold are of a certain description or meet a certain standard.Where a warranty is made and the object turns out not to meet the standard or description，then the buyer can sue for breach.

In the well-known，and strange，1603 case of Chandelor v.Lopus，the seller，a London goldsmith，had “affirmed” to the buyer，a foreign merchant，that a jewel being sold was a “bezar stone” (a stone from an animal's digestive system，thought to have magical properties)，and the buyer purchased the object for the then-steep price of one hundred pounds.When the buyer found out that the object was in fact not a bezar stone，he sued.The buyer prevailed initially (at King's Bench)，but on appeal (at Exchequer Chamber)，the court held that the plaintiff could not prevail，because he had not claimed either that the seller knew the object not to be a bezar stone or that the seller had “warranted” that it was.

Chandelor somehow became a foundational case for “caveat emptor”—“let the buyer beware”—the view that the common law courts will not intervene to undo a one-sided agreement entered by a gullible，vulnerable，or ignorant buyer.The courts would have buyers seeking certainty regarding the value or quality of the object being purchased demand a guaranty or warranty by the seller—and，under Chandelor，if not under more recent cases，that the warrantor had to in fact expressly use that magic word，mere affirmation was insufficient.

No magic words are necessary under current American law (or under the law of most other jurisdictions).For the sale of goods，warranties can arise from an affirmation，a promise，a description，or a sample or model.The concern，then is that it may take too little to ascribe a warranty to a seller in a context in which the seller was merely “puffing”—the sort of general and superficial talk associated with media advertisements and salespeople，the sort of praise that cautious consumers have learned to (and are expected to) discount or ignore.For that reason，the relevant UCC provision warns that “an affirmative merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.”

【来源：Brian H.Bix，Contract Law，Rules，Theory and Context，Cambridge University Press，2012，pp.66-67】

1.What does “breach” in the Paragraph 1 mean？( )

A.violation of a law

B.compensation

C.breaking a promise

D.violation of a contract

2.According to the passage，which of the following statements about Chandelor case and its principle established is TRUE？( )

A.The court upheld the buyer on appeal.

B.The court held that the seller had to literally “warrant” the object to be a bezar stone.

C.The courts will assist the parties to modify a contract if they find one party is gullible，vulnerable or ignorant.

D.It is the seller's obligation to provide the guaranty or warranty regarding the value or quality of the object being sold.

3.According to Paragraph 3，the “magic word” refers to.( )

A.affirm

B.warrant

C.confirm

D.sure

4.Under current American law，based on the text，which of the following CANNOT incur a warranty？( )

A.a promise

B.a specification

C.an advertisement

D.a sample

第九节

Serious problems with the promise theory begin the moment we seek a rationale for enforcing promises.The problem for which the promise theory is supposed to be the solution is to figure out exactly why it is that contracts are legally enforceable(and，therefore，which commitments should be enforced).That is，we are concerned，not with why persons ought to keep their word，but with why and therefore when coercion may be used by third parties，including the State，to compel promisors either to perform or pay damages when they fail to keep their word.The best-known answers to the question of legal enforceability provided by the promise theory are often either highly moralistic or tort-like in nature.

But a moral theory of promising，standing alone，would have courts enforcing purely moral commitments，which is tantamount to legislating virtue.Such an open-ended rationale leads to serious problems for the value of freedom of contract.First，it commits courts to enforcing promissory commitments that the parties themselves may never have contemplated as “contractual” or legally enforceable，thereby undermining the value of freedom from contract.Second，once the moral behavior of the promisor is deemed relevant to the issue of enforceability，the promise theory also appears to make relevant to the issue of enforcement other moral aspects of the promisor's behavior that may argue against enforcement，thereby undermining the value of freedom to contract.In this manner，the common-law rights of contract can come to resemble the judicial discretion of a court of equity.

Another popular justification of the promise theory looks at the promise from the direction of the promisee.That is，persons may be compelled to perform or pay damages because others have relied or are likely to rely upon a promise to their detriment.This was the rationale for contract law apparently favored by Fuller and Perdue in their famous article The Reliance Interest in Contract Damages-although，as evidenced by his later article，Consideration and Form，Lon Fuller himself never took an injurious reliance theory as far as the many subsequent law professors who so admire his earlier path-breaking work.When the enforceability of promises is justified in this way the promise theory is but a short step away from a detrimental reliance theory.That is，once the injury suffered by the promisee is made the principal rationale for enforcing promises，we end up with the following very tort-like theory of contract：Just as tort actions compensate persons injured by physical conduct，contract actions compensate persons injured by verbal promissory conduct.In such an approach，either dimension of freedom of contract plays little，if any，role.In sum，this way of justifying the promise theory ultimately transforms it into the detrimental reliance theory，which undermines rather than supports contract as a distinct type of consensual obligation within the liberal conception of justice.

【来源：Robert H.Bork，The Death of Contract and the Rise of Tort，77 Cornell L.Rev，1991-1992，pp.1024-1026】

1.According to the Paragraph 1，the promise theory aims to solve the problem .( )

A.why persons ought to keep their word

B.why the State uses force to make promisors perform or pay compensation

C.when the promisors fail to keep their word

D.when the promisors should perform their promises

2.According to Paragraph 2，which of the following is NOT the rationale for the concerns of freedom of contract？( )

A.the issue of enforceability might be applicable to other moral aspects of the promisor's behaviour.

B.the courts are likely to enforce commitments that the parties themselves do not even deem enforceable.

C.the courts will impose an enforcement measure to have the promisor perform its obligations under an enforceable agreement.

D.the value of freedom of contract might be undermined by the connection between promisor's moral behaviour and issue of enforceability.

3.What does “discretion” mean in Paragraph 2？( )

A.a liberty of a judge to make decisions

B.an enforceable power of a judge

C.the court's right to investigate

D.a jurisdictional power of a court to hear a case

4.What can we infer from the last paragraph？( )

A.The promise theory can be called the detrimental reliance theory as well.

B.The author completely agrees with the rationale provided in the article The Reliance Interest in Contract Damages by Fuller and Perdue.

C.The author justifies the concept that contract actions compensate persons injured by verbal promissory conduct.

D.The author thinks the justification of promise theory，from the promisee's perspective，will weaken the basic conceptions of contract.