日期：2018-01-11 / 人气： / 来源：http://www.rzfanyi.com/ 作者：译声翻译公司翻译公司分享新加坡合同法翻译模板（上部分 中英文）
TABLE OF CONTENTS
SECTION 1 INTRODUCTION 导论
SECTION 2 OFFER AND ACCEPTANCE要约和承诺
SECTION 3 CONSIDERATION 对价
SECTION 4 INTENTION TO CREATE LEGAL RELATIONS设立法律关系的意旨
SECTION 5 TERMS OF THE CONTRACT合同条款
SECTION 6 CAPACITY TO CONTRACT缔约能力
SECTION 7 PRIVITY OF CONTRACT合同的相对性
SECTION 8 DISCHARGE OF CONTRACT合同之解除
SECTION 9 MISTAKE误解
SECTION 10 MISREPRESENTATION虚假陈述
SECTION 11 DURESS, UNDUE INFLUENCE & UNCONSCIONABILITY
SECTION 12 ILLEGALITY AND PUBLIC POLICY非法性与公共政策
SECTION 13 JUDICIAL REMEDIES FOR BREACH OF CONTRACT违约的司法救济
SECTION 1 INTRODUCTION 导论
1.1 Contract law in Singapore is largely based on the common law of contract in England. Unlike its neighbours Malaysia and Brunei, following Independence in 1965, Singapore´s Parliament made no attempt to codify Singapore´s law of contract. Accordingly, much of the law of contract in Singapore remains in the form of judge-made rules. In some circumstances, these judge-made rules have been modified by specific statutes.
1.2 Many of these statutes are English in origin. To begin with, 13 English commercial statutes have been incorporated as part of the Statutes of the Republic of Singapore by virtue of s 4 of the Application of English Law Act (Cap 7A, 1993 Rev Ed). These are listed in Part II of the First Schedule of this Act. Other statutes, eg the Contracts (Rights of Third Parties) Act (Cap 53B, 2002 Rev Ed), are modelled upon(仿效) English statutes. There are also other areas where statutory development based on non-English models has taken place, eg the Consumer Protection (Fair Trading) Act (Cap 52A, 2004 Rev Ed) (which was largely drawn from fair trading legislation enacted in Alberta and Sasketchewan).
许多此类立法起源于英国。首先来说，有13个英国商事法律根据《英国法律适用法》(Application of English Law Act) 第四节(Cap 7A, 1993年修订)的规定直接成为新加坡共和国的立法。这些立法罗列在该法的第二部分的第一附表里。其他立法，如《合同第三方权利法》(Contracts( Rights of Third Parties) Act)(Cap 53B, 2002 修订)，系模仿英国立法制定的。在某些领域也有立法采用非英国模式的情形，比如《消费者保护(公平交易)法》(Consumer Protection (Fair Trading) Act)(Cap 52A, 2004年修订)。该法大致上参照[加拿大]阿尔伯塔与萨卡其万两省的公平交易法制定。
1.3 The rules developed in the Singapore courts do, nevertheless, bear a very close resemblance to those developed under English common law. Indeed, where there is no Singapore authority specifically on point, it will usually be assumed that the position will, in the first instance, be no different from that in England.
SECTION 2 OFFER AND ACCEPTANCE要约和承诺
2.1 A contract is essentially an agreement between two or more parties, the terms of which affect their respective rights and obligations which are enforceable at law. Whether the parties have reached agreement, or a meeting of the minds, is objectively ascertained from the facts. The concepts of offer and acceptance provide in many, albeit not all, cases the starting point for analysing whether agreement has been reached.
合同在本质上是双方或者多方之间的协议，该协议条款涉及到当事人各自的权利义务并且具有法律约束力。至于当事人之间是否达成协议，或合意(consensus ad idem), 应通过对事实的客观分析而确定。在大多数–但并非所有的情况下，要约与承诺的概念是分析当事人是否达成协议的起点。
SECTION 3 CONSIDERATION 对价
3.1 A promise contained in an agreement is not enforceable unless it is supported by consideration or it is made in a written document made under seal. Consideration is something of value (as defined by the law), requested for by the party making the promise (the `promisor´) and provided by the party who receives it (the `promisee´), in exchange for the promise that the promisee is seeking to enforce. Thus, it could consist of either some benefit received by the promisor, or some detriment to the promisee. This benefit/detriment may consist of a counter promise or a completed act.
3.2 The idea of reciprocity that underlies the requirement for consideration means that there has to be some causal relation between the consideration and the promise itself. Thus, consideration cannot consist of something that was already done before the promise was made. However, the courts do not always adopt a strict chronological approach to the analysis.
体现于对价要求之中的是互惠关系这一原则，它要求对价和允诺之间有某种原因关系。因此，对价不能是允诺作出之前已经完成的事情。但是，法院并不总是严格地忠实于这种以时间先后为准的推论方式–参见Pao On v Lau Yiu Long  AC 614, 该判例所确立的原则已经被新加坡上诉法院在Sim Tony v Lim Ah Ghee t/a Phil Real Estate & Building Services ( 2 SLR 466) 一案中明确采用.
3.3 Whether the consideration provided is sufficient is a question of law, and the court is not, as a general rule, concerned with whether the value of the consideration is commensurate with the value of the promise. The performance of, or the promise to perform, an existing public duty imposed on the promisee does not, without more, constitute sufficient consideration in law to support the promisor´s promise. The performance of an existing obligation that is owed contractually to the promisor is capable of being sufficient consideration, if such performance confers a real and practical benefit on the promisor. If the promisee performs or promises to perform an existing contractual obligation that is owed to a third party, the promisee will have furnished sufficient consideration at law to support a promise given in exchange.
3.4 Where the doctrine of promissory estoppel applies, a promise may be binding notwithstanding that it is not supported by consideration. This doctrine applies where a party to a contract makes an unequivocal promise, whether by words or conduct, that he or she will not insist on his or her strict legal rights under the contract, and the other party acts, and thereby alters his or her position, in reliance on the promise. The party making the promise cannot seek to enforce those rights if it would be inequitable to do so, although such rights may be reasserted upon the promisor giving reasonable notice. The doctrine prevents the enforcement of existing rights, but does not create new causes of action.
SECTION 4 INTENTION TO CREATE LEGAL RELATIONS设立法律关系的意旨
4.1 In the absence of contractual intention, an agreement, even if supported by consideration, cannot be enforced. Whether the parties to an agreement intended to create legally binding relations between them is a question determined by an objective assessment of the relevant facts.
4.2 In the case of agreements in a commercial context, the courts will generally presume that the parties intended to be legally bound. However, the presumption can be displaced where the parties expressly declare the contrary intention. This is often done through the use of honour clauses, letters of intent, memoranda of understanding and other similar devices, although the ultimate conclusion would depend, not on the label attached to the document, but on an objective assessment of the language used and on all the attendant facts.
4.3 The parties in domestic or social arrangements are generally presumed not to intend legal consequences.
SECTION 5 TERMS OF THE CONTRACT合同条款
5.1 The rights and obligations of contracting parties are determined by first, ascertaining the terms of the contract, and secondly, interpreting those terms. In ascertaining the terms of a contract, it is sometimes necessary, especially where the contract has not been reduced to writing, to decide whether a particular statement is a contractual term or a mere representation. Whether a statement is contractual or not depends on the intention of the parties, objectively ascertained, and is a question of fact. In ascertaining the parties´ intention, the courts take into account a number of factors including the stage of the transaction at which the statement was made, the importance which the representee attached to the statement and the relative knowledge or skill of the parties vis-à-vis the subject matter of the statement.
5.2 Once the terms of a contract have been determined, the court applies an objective test in construing or interpreting the meaning of these terms. What is significant in this determination therefore is not the sense attributed by either party to the words used, but how a reasonable person would understand those terms. In this regard, Singapore courts have consistently emphasised the importance of the factual matrix within which the contract was made, as this would assist in determining how a reasonable man would have understood the language of the document.
5.3 Where the parties have reduced their agreement into writing, whether a particular statement (oral or written) forms part of the actual contract depends on the application of the parol evidence rule. In Singapore, this common law rule and its main exceptions are codified in s 93 and s 94 of the Evidence Act (Cap 97, 1997 Rev Ed). Section 93 provides that where `the terms of a contract...have been reduced ...to the form of a document..., no evidence shall be given in proof of the terms of such contract ...except the document itself´. Thus, no evidence of any oral agreement or statement may be admitted in evidence to contradict, vary, add to, or subtract from the terms of the written contract. However, secondary evidence is admissible if it falls within one of the exceptions to this general rule found in the proviso to s 94. Some controversy remains as to whether s 94 is an exhaustive statement of all exceptions to the rule, or whether other common law exceptions not explicitly covered in s 94 continue to be applicable.
如当事人已将合同表诸书面，无论是口头还是书面作出的某个特定表述是否是合同的组成部分有赖于依口头证据规则做出的判断。这一普通法规则及其例外由《证据法》(Cap 97, 1997 年修正)第93节和94节来规范。第93节规定，“如合同条款…已经被书写为…文件形式…, 则除文件本身外，其他证据不能用来证明合同条款。”因此，任何口头协议或表述都不能被作为证据去推翻、改变、增加或者减少书面合同的条款。然而，次要证据如果根据《证据法》第94节属于口头证据规则的例外，就可以被接受。但是现在对于第94节是否囊括了所有的例外以及在此之外普通法上的未被第94节明确提到的例外是否可继续适用还是很有争议的。
5.4 It should, however, be noted that the scope of s 93 and s 94 has been circumscribed by Parliament in certain circumstances.
应该提到的事，第93条和94条的适用范围在某些情况下被国会有所限制。见第 章与《消费者保护(公平交易)法》(Cap 52A, 2004 修正)第17条有关的消费者保护规则。
5.5 In addition to those expressly agreed terms, the court may sometimes imply terms into the contract.
5.6 Generally, any term to be implied must not contradict any express term of the contract.
5.7 Where a term is implied to fill a gap in the contract so as to give effect to the presumed intention of the parties, the term is implied in fact and depends on a consideration of the language of the contract as well as the surrounding circumstances. A term will be implied only if it is so necessary that both parties must have intended its inclusion in the contract. The fact that it would be reasonable to include the term is not sufficient for the implication, as the courts will not re-write the contract for the parties.
5.8 Terms may also be implied because this is required statutorily, or on public policy considerations. The terms implied by the Sale of Goods Act (Cap 393, 1994 Rev Ed) (eg s 12(1) - that the seller of goods has a right to sell the goods) provide examples of the former type of implied terms. As for the latter, whilst there has been no specific authority on the point, it is not inconceivable that Singapore courts, like their English counterparts, may imply `default´ terms into specific classes of contracts to give effect to policies that define the contractual relationships that arise out of those contracts.
默示条款的成立也可以是因为成文法的要求，或者是出于公共政策的考虑。《货物买卖法》(Cap 393, 1994修正版)提供了前一类范例(例如第12节(1)规定的买方有权出售货物)。至于后一类，虽然现在尚无具体的权威依据，但如果新加坡法院像他们的英国同业那样将一些“缺省”条款默示进合同以保持公共政策对合同关系的限制，这也并非不可想象的。
Classification of Terms合同条款的分类
5.9 The terms of a contract may be classified into conditions, warranties or intermediate (or innominate) terms. Proper classification is important as it determines whether the contract may be discharged or terminated for breach [as to which see Paragraphs 11 to 12 below].
合同条款可以分为条件 (conditions)，担保 (warranties)，和中间(或无名)条款(intermediate/innominate terms)。条款的恰当分类很重要，因为这将决定合同是否已被履行或者因为违约而解除(见下文11 和 12)。
5.10 The parties may expressly stipulate in the contract how a particular term is to be classed. This is not, however, conclusive unless the parties are found to have intended the technical meaning of the classifying words used. In the absence of express stipulation, the courts will look objectively at the language of the contract to determine how, in light of the surrounding circumstances, the parties intended a particular term to be classed. There are also instances where statutes may stipulate whether certain kinds of terms are to be treated as conditions or warranties, in the absence of any specific designation by the contracting parties.
5.11 Exception clauses that seek to exclude or limit a contracting party´s liability are commonly, but not exclusively, found in standard form agreements. The law in Singapore relating to such clauses is essentially based on English law. The English Unfair Contract Terms Act 1977, which either invalidates an exception clause or limits the efficacy of such terms by imposing a requirement of reasonableness, has been re-enacted in Singapore as the Unfair Contract Terms Act (as Cap 396, 1994 Rev Ed).
试图排除或限制当时一方责任的免责条款在格式合同中使用很普遍，但其使用范围不限于此。新加坡有关免责条款的法律本质上是基于英国法的。1977年的英国《不公平合同条款法》通过一个“合理性要求”来使免责条款无效或者限制其功效。这个法律被全盘照搬为新加坡的《不公平条款法》(Cap 396, 1994年修正)。
5.12 Whether an exception clause will have its intended effect depends on a number of factors. The threshold requirement is that the clause must have been incorporated into the contract. There are generally three ways in which such incorporation may occur. Where a party has signed a contract which contains an exception clause, the signatory is bound by the clause, even if he or she had not read or was unaware of the clause. An exception clause may also be incorporated, in the absence of a signed contract, if the party seeking to rely on the clause took reasonably sufficient steps to draw the other party´s attention to the existence of the clause. The determination of this issue is heavily dependent on the facts of the particular case. Finally, exception clauses may be incorporated because there has been a consistent and regular course of dealing between the parties on terms that incorporate the exception clause. Even if no steps were taken to incorporate the clause in a particular contract between such parties, it may have been validly incorporated by the parties´ prior course of dealing.
5.13 The next consideration is one of construction (or interpretation). This is necessary to determine if the liability, which the relevant party is seeking to exclude or restrict, falls within the proper scope of the clause. Here, the courts adopt the contra proferentum rule of construction, and will construe exception clauses strictly against parties seeking to rely on them. Nevertheless, the Singapore courts appear to construe clauses which seek to limit liability more liberally than those which seek to completely exclude liability.
Unfair Contract Terms Act不公平合同条款
5.14 Finally, the limits placed by the Unfair Contracts Terms Act (Cap 396, 1994 Rev Ed) (the `UCTA´) on the operation and efficacy of exceptions clauses must be considered. It should be noted that the UCTA generally applies only to terms that affect liability for breach of obligations that arise in the course of a business or from the occupation of business premises. It also gives protection to persons who are dealing as consumers. Under the UCTA, exception clauses are either rendered wholly ineffective, or are ineffective unless shown to satisfy the requirement of reasonableness. Terms that attempt to exclude or restrict a party´s liability for death or personal injury resulting from that party´s negligence are rendered wholly ineffective by the UCTA, while terms that seek to exclude or restrict liability for negligence resulting in loss or damage other than death or personal injury, and those that attempt to exclude or restrict contractual liability, are subject to the requirement of reasonableness. The reasonableness of the exception clause is evaluated as at the time at which the contract was made. The actual consequences of the breach are therefore, in theory at least, immaterial.
最后，《不公平合同条款法》(UCTA)对免责条款的功效的限制也应予以考虑。应注意到UCTA总的来说只是适用于那些涉及到因商业活动或在商业场所所产生的合同责任违约的条款。它也对消费者提供保护。根据UCTA，免责条款或者完全无效，或者因不满足合理性标准(requirement of reasonableness)而失效。试图排除或限制因为疏忽而导致的死亡或人身伤害的责任的条款完全无效，而那些排除或限制因为疏误所导致的非人身性的财产灭失或损坏的责任的条款，以及那些试图排除或限制合同义务的条款，应受合理性标准约束。免责条款是否合理要依合同订立时的时间来判断。因此，至少在理论上，违约的实际后果可能并非很重要。
SECTION 6 CAPACITY TO CONTRACT缔约能力
6.1 Under Singapore common law, a minor is a person under the age of 21. The validity of contracts entered into by minors is governed by the common law, as modified by the Minors´ Contracts Act (Cap 389, 1994 Rev Ed).
依新加坡的普通法，21岁以下为未成年人。根据修订后的《未成年人合同法》(Cap 389, 1994年修订)未成年人订立的合同由普通法管辖。
Contracts with Minors与未成年人订约
6.2 As a general rule, contracts are not enforceable against minors. However, where a minor has been supplied with necessaries (ie goods or services suitable for the maintenance of the station in life of the minor concerned: see also s 3(3), Sale of Goods Act (Cap 393, 1999 Rev Ed)), the minor must pay for them. Contracts of service which are, on the whole, for the minor´s benefit are also valid. The minor is also bound by certain types of contracts (ie contracts concerning land or shares in companies, partnership contracts and marriage settlements), unless the minor repudiates the contract before attaining majority at age 21 or within a reasonable time thereafter.
总的原则是未成年人订立的合同对他没有执行力。然而，如果未成年人购买的是生活必需品(例如适于维持他的生活条件的货物或服务;另参见《货物买卖法》第三条(3))，他就必须付款。服务合同(contract of services)如整体上是为了未成年人的利益，亦属有效。未成年人也受到某些其它类型合同的约束，例如涉及到土地或者公司股份、合伙或者离婚调解的合同，除非未成年人在21岁以前或再次之后一段合理期间内否认合同。
Minors´ Contracts Act 《未成年人合同法》
6.3 Under s 2 of the Minors´ Contracts Act, a guarantee given in respect of a minor´s contract, which may not be enforceable against the minor, is nevertheless enforceable against the guarantor. Section 3(1) of the Minors´ Contracts Act empowers the court to order restitution against the minor if it is just and equitable to do so.
Mental Incapacity and Drunkards心智不健全者和醉酒者
6.4 A contract entered into by a person of unsound mind is valid, unless it can be shown that that person was incapable of understanding what he or she was doing and the other party knew or ought reasonably to have known of the disability. In this case, the contract may be avoided at the option of the mentally unsound person (assisted by a court-sanctioned representative where necessary). The same principle applies in the case of inebriated persons. Under s 3(2) of the Sale of Goods Act, persons incapacitated mentally or by drunkenness are required to pay a reasonable price for necessaries supplied.
6.5 Subject to any written law and to any limits contained in its constitution, a company has full capacity to undertake any business, do any act or enter into any transaction (s 23 - Companies Act, Cap 50, 1994 Rev Ed). Where there are restrictions placed on the capacity of a company and the company acts beyond its capacity, s 25 of the Companies Act validates such ultra vires transactions if they would otherwise be valid and binding. Contracts purportedly entered into by a company prior to its incorporation may be ratified and adopted by the company after its formation (s 41 - Companies Act).
只要不逾越任何成文法或其本身章程的规定，一家公司具有从事任何业务的全部能力，可以为任何行为和进行任何交易(见《公司法》(Cap 50, 1994修订)第23条)。即算对公司行为有限制而公司超出能力范围行事，如果所施行为在此之外均有效和有拘束力，《公司法》第25条也任何这种行为。公司在成立之前订立的合同可在成立之后被公司批准和采纳。
6.6 A limited liability partnership is also a body corporate under Singapore law - see Limited Liability Partnerships Act 2005 (Act No 5 of 2005). It may, in its own name: sue and be sued in its own name; acquire, own, hold and develop property; hold a common seal; and may do and suffer such other acts and things as any body corporate may lawfully do and suffer - see s 5(1). Section 5(2) also extends s 41 of the Companies Act to apply to a limited liability partnership.
按照新加坡法律有限责任合伙(limited liability partnership)也是一种公司实体(参见《有限责任合伙法2005》)。它可以以自己的名义提起诉讼或成为被告;取得、拥有、占有和发展财产;设公司印章;以及任何可以进行和负担任何其他公司实体可以合法进行和负担的行为(见第5(1)条)。第5(2) 条亦将《公司法》第41条适用于有限责任合伙。
SECTION 7 PRIVITY OF CONTRACT合同的相对性
Third party Enforcement of Contractual Rights Generally not Permitted
7.1 As a general proposition, only persons who are party (ie `privy´) to a contract may enforce rights or obligations arising from that contract. This is sometimes referred to as the `privity rule.´
7.2 A third party who is not privy to a contract is generally not allowed to bring any legal action in his or her own name for breach of contract against a contracting party who fails to perform his or her contractual obligations, even if such failure of performance has caused the third party to suffer a loss.
When is Someone Party or Privy to a Contract? 何时成为合同当事人或相对方
7.3 There is no clear definition as to when a person is/is not privy to a contract. Generally, a party who is an offeror or offeree will be privy to the contract. However, it seems that merely being mentioned in the contract is not enough.
7.4 It is, nevertheless, possible to have a multilateral contract where there are multiple offerees (one or more of whom accept the offer on behalf of the others) or where there are multiple offerors (one or more of whom make the offer on behalf of the others). In either case, each offeree or offeror is a joint party to the contract and the privity rule will not apply to them.
Non-statutory Exceptions to the Privity Rule相对性原则的非立法例外
7.5 The privity rule is not absolute. It is subject to many exceptions. Apart from the possibility of a multilateral or multi-party contract (mentioned above), some other exceptions can be found in the law relating to: (a) agency; (b) trusts; or (c) land (in relation to covenants which `run´ with the land or lease). For an in depth discussion of these other legal techniques to circumvent the privity rule, please see Chapters 15 and 1
Statutory Exceptions to the Privity Rule相对性原则的立法例外
7.6 There are also statutory exceptions. Most of these are only applicable to specific and narrowly defined cases. Two examples of such statutes include: (a) the Bills of Exchange Act (Cap 23, 1985 Rev Ed) [see Chapter 22 on Banking Law]; and (b) the Bills of Lading Act (Cap 384, 1994 Rev Ed) [see Chapter 25 on Shipping Law]. Of more general application, the Singapore Parliament enacted the Contracts (Rights of Third Parties) Act (Cap 53B, 2002 Rev Ed) in 2001.
还有一些立法规定的例外，但其大多数适用于非常具体的和狭窄界定的情况。举两个例子：(a)《汇票法》(Cap 23，1985修订)[见第x章关于银行法];和(b)《提单法》(Cap 384, 1994修订) [见第x章关于海运法]。关于更一般性的适用，见新加坡议会在2001年制定的《合同项下第三方权利法》(Cap 53B, 2002 修订)。
Contracts (Rights of Third Parties) Act合同项下第三方权利法
7.7 Section 1 provides that the Contracts (Rights of Third Parties) Act has no retrospective effect - it cannot apply to any contract formed before 1 January 2002. Section 1 also provides that the Act does not apply to any contracts which were formed on or after 1 January 2002, but before 1 July 2002, unless the contracting parties expressly provided in their contract for it to do so. Contracts formed on or after 1 July 2002 are always subject to the Act.
7.8 Where the Act applies, it gives a third party a statutory right to enforce a term of a contract against a party who is in breach of his or her obligations under the contract (the `promisor´), even though even though the third party is a volunteer who has not provided any contractual consideration - see s 2(5).
7.9 This may occur if either: (a) the contract expressly provides that the third party may enforce a term of the contract in his or her own right - s 2(1)(a); or (b) the contract, `purports to confer a benefit on the third party´ - s 2(1)(b). However, s 2(1)(b) is qualified: a third party will not be granted the direct statutory right of suit in the absence of an express provision permitting him or her to do so, `if, on a proper construction of the contract, it appears that the parties did not intend the term to be enforceable by the third party.´ - s 2(2).
这种情况之发生是因为：(a)合同明确规定第三方自身有权执行某个合同条款–见第2(1)(a)条;或者，(b)合同“意图对第三方授予利益”- 见第2(1)(b)。但是第2(1)(b)是受到限制的：如无明确合同规定，且根据对合同的恰当解释显示出当事人无意给与第三方法定的执行权利，第三方即没有直接的法定权利提起诉讼。- 见第2(2)条。
7.10 This statutory right of enforcement is not just limited to cases where the promisor is under an obligation to act to confer a positive benefit on the third party. `Negative´ benefits, such as the benefit of a term excluding or limiting the third party´s legal liabilities to the promisor, may also be enforced -s 2(5).
7.11 The third party´s statutory right of enforcement against the promisor is qualified in a number of ways. First, the third party´s statutory right of recovery may be qualified by a defence or set-off which the promisor would have been able to assert vis-à-vis the other party to the contract (the `promisee´) - s 4. Second, any sum to be recovered by the third party pursuant to the Act may be reduced to take into account sums recovered by the promisee from the promisor in respect of the promisor´s breach - s 6.
第三方针对允诺人执行合同的法定权利受到各种限制。首先，第三方取得利益的法定权利受到允诺人对合同别的当事方(“受允诺人)所可以提起的抗辩权或者抵销权的限制。- 见第4条。第二，考虑及受允诺人因为允诺人违约而追复到的赔偿数额，第三方根据该法所可以获得的金钱数额会相应会减少。- 见第6条。
7.12 Once third party rights are created under the Act, certain restrictions are imposed on the ability of the parties to the contract to vary or rescind their contract if this would extinguish or alter the third party´s rights under the Act - s 3.
7.13 Though wider in its scope than many of the other legal techniques for circumventing privity, the Act is not of universal application. Section 7 of the Act sets out a number of situations where the Act does not apply. Excluded cases include: (a) contracts on a bill of exchange, promissory note or other negotiable instrument; (b) limited liability partnership agreements as defined under the Limited Liability Partnerships Act 2005 (Act 5 of 2005); (c) the statutory contract binding a company and its members under s39 of the Companies Act (Cap 50, 1994 Rev Ed); (d) third party enforcement of any term of an employment contract against an employee; and (e) third party enforcement of any term (apart from any exclusion or limitation of liability for the benefit of the third party) in a contract for carriage of goods by sea, or a contract for the carriage of goods or cargo by rail, road or air, if such contract is subject to certain international transport conventions.
SECTION 8 DISCHARGE OF CONTRACT合同之解除
Discharge by Performance因履约而解除
1 If all the contractual obligations as defined by the terms of the contract are fully performed, the contract is brought to an end or `discharged´ by performance. In theory, such performance must be precise. However, trivial defects in performance may be ignored as being negligible or `de minimis.´ In addition, where full performance is only possible with the cooperation of the other party (as is almost invariably the case with obligations of payment or delivery), tender of performance in circumstances where the other party refuses to accept it is generally deemed to be equivalent to full performance so as to discharge the contract.
Non- or Defective Performance不履行或不适当履行
2 In the event that a contractual obligation is not performed or is performed defectively in a non-trivial fashion, Singapore law provides for a variety of legal responses and remedies, depending on the nature of the failure of performance.
Lawful Excuses for Breach of Contract违法合同的法定免责事由
3 If the failure of performance is not subject to any lawful excuse, the contract is said to be `breached.´ In this context, `lawful excuses´ may take the following forms.
Discharge by Agreement因合同落空而解除
4 First, just as parties are free to agree to bind themselves to a contract, they are free to negotiate with each other to release themselves from the obligations of that contract. Such agreement may well have been built into the original contract, for example, where parties agree that their original agreement be terminable by giving notice of termination, or upon lapse of a specified period of time. Alternatively, contracting parties may release themselves from the obligations of the original contract by entering into a subsequent contract of release. Where each contractual party is still subject to contractual obligations which have yet to be performed, the mutual release of their outstanding obligations is generally effective under Singapore law without the need for any further formalities or any other consideration. However, where the party who is owed the obligation in question does not have any outstanding obligations under the original contract, the party seeking to be released from that obligation will have to provide some form of valuable consideration in exchange for the release. In the alternative, the release must be executed under seal to be effective.
5 Secondly, it may be that the obligation which has not been performed is conditional upon the prior occurrence of certain specified events: these may be external events, or some contractually specified counter-performance by the other party to the contract.
6 Thirdly, the parties may contractually provide for non-performance following from certain events to be excused so as not to amount to a breach, for example, in the form of a `force majeure´ clause. At the very least, such a clause will hold all parties innocent of liability for non-performance following the specified force majeure event. More detailed force majeure clauses may also make provision for issues such as the return and refund of advance payments, reimbursements for expenses incurred in preparation of the performance of the contract, and so forth. Such provisions will generally be given effect by Singapore law.
Discharge by Frustration因合同落空而解除
7 Fourthly, where the reason for the failure of performance lies in events beyond the control of the contracting parties and which neither party could have reasonably foreseen, the contract is said to be `frustrated´. In such cases, there are statutory rules which set out the extent to which advance payments made before the frustrating event intervened may be refunded and work done in preparation of the performance of the contract in advance of the frustrating event may be reimbursed - see Frustrated Contracts Act (Cap 115, 1985 Rev Ed) s 2(2) and s 2(4) respectively. Section 2(3) of the Frustrated Contracts Act also empowers the Singapore courts to make valuations of any non-money benefits which may have been conferred by one contracting party on another, prior to the frustrating event, and to order the recipient of those benefits to pay for such value received.
第四，如果未能履约是出于超出当事方控制的事由，且任何一方当事人对此都不可能合理预见，即可认为存在“合同落空”。见Glahe International Expo AG v ACS Computer Pte Ltd and another appeal  2 SLR 620 at 629。对这种情形，新加坡法律有强制性的成文规则，规定落空事件发生前提交的预付款应予返还，以及此前为准备履约所招致的费用应予补偿。见《落空合同法》(Cap 115, 1985修订)第2(2)和第2(4)条。《落空合同法》第2(3)条也授权法院对在落空事件发生之前一方当事人给与另一方的非金钱利益的价值进行估量，并裁令利益收受者提供相应报酬。
Effects of a Breach of Contract违约后果
8 In the absence of a lawful excuse, a breach of contract has two significant effects.
9 First, if the breach of contract by one contracting party (the `party-in-breach´) causes loss to the other (the `aggrieved party´), the party-in-breach may be ordered by the courts to compensate the aggrieved party in money damages for those losses, in lieu of the primary obligations left unperformed under the contract. However, contractual damages (which are compensatory and not punitive in nature), is not the only judicial remedy available. Other types of remedies may be available in lieu, or sometimes, in addition to damages, depending on the nature of the obligation which has been breached. [See Section 13 below].
Right to Elect to Discharge for Breach解除合同之选择权
10 Second, the breach may give the aggrieved party the right to bring the contract to an end, ie to discharge the contract for breach. In this connection, it is useful to distinguish actual breaches of contract (wherein the breach occurs at the actual time of performance as specified by the contract) from anticipatory breaches of contract (wherein the breach is said to occur in advance of the contractually stipulated time of performance).
Actual Breach Giving Rise to Right of Discharge实际违约给与合同解除权
11 In the case of an actual breach of contract, the aggrieved party may elect to discharge the contract for breach if the contractual term which has been breached is: (a) a `condition´; or (b) an `innominate term,´ the breach of which deprives the aggrieved party of substantially the whole of the benefit of the contract. In such a case, the aggrieved party may choose to discharge the contract for breach.
12 The aggrieved party has no such power of election if the contractual term which has actually been breached is: (a) a `warranty´; or (b) an `innominate term,´ the breach of which does not deprive the aggrieved party of substantially the whole of the benefit of the contract. In such a case, the contract will persist despite the breach (unless the contract is brought to an end by some other event).
13 For details as to how a contract term may be categorised as a `condition,´ a `warranty´ or an `innominate term,´ see Paragraphs 5.9 to 5.10 above.
Discharge by Actual Breach因实际违约而解除
14 If the aggrieved party is entitled to discharge the contract and elects to do so, the contract is brought to an end prospectively. That is, the contract ceases to bind the parties to the contract from the time the election is effectively communicated to the other contracting parties. Such communication may take the form of words, acts, or even (in exceptional cases) silence. Prior to that time, such an election may be withdrawn. Following an effective discharge, the parties are released from all outstanding contractual obligations.
Affirmation of Contract Following an Actual Breach实际违约后对合同的确认
15 The aggrieved party may choose, however, not to discharge the contract. Instead, the aggrieved party may choose to affirm the contract, thereby giving the party-in-breach another opportunity to rectify the non-performance or defective performance. If so, the entire contract is kept alive and the aggrieved party loses the right to have the contract discharged (although the right to sue the party-in-breach and recover money damages for any losses incurred as a result of the delay in procuring full performance may well be retained, unless the aggrieved party also elects to waive his or her right to compensatory money damages).
Anticipatory Repudiatory Breach预期毁约
16 A breach of contract may also occur anticipatorily (in advance of the time of actual performance). If this breach is also repudiatory (where the evidence demonstrates that one party intends not to be bound by the terms of the contract, nor to honour his or her contractual obligations as and when they fall due), the aggrieved party has the right to choose whether to discharge or to affirm the contract. `Repudiatory´ intentions will be more readily proved where there are clear and express communications by the purported party-in-breach to such effect. However, they can also be inferred from actions or steps taken by the purported party-in-breach which render it impossible for his or her obligations to be performed when they become due.
Effect of Discharge by Anticipatory Repudiatory Breach因预期毁约而解除合同的后果
17 Significantly, a party aggrieved by an anticipatory repudiatory breach may exercise his or her right to discharge the contract immediately without waiting until the time of actual performance. If the aggrieved party elects to discharge the contract, the contract is immediately and prospectively brought to an end. The aggrieved party is then entitled to sue the party-in-breach for damages as compensation for any loss suffered by the aggrieved party as a result of the non-performance of the contract.
Effect of Affirmation Following an Anticipatory Repudiatory Breach
18 On the other hand, the aggrieved party may elect to affirm the contract. If so, the contract continues to bind all parties to the contract and the anticipatory breach is ignored. Consequently, once the aggrieved party affirms the contract, there can be no liability for money damages for that anticipatory breach since it is treated as if the breach never occurred.
- COVER 一词在商务合同中的使用01-11