对外经济贸易大学：《比较合同法》课程教学资源（授课教案）第四章 合同的内容与履行

第四章合同的内容与履行 —、 口头证据规则与合同内容的确定 二、合同的解释 ●】 三、合同的补缺 ● 四、合同的变更 五、履行义务因障碍或因情况变化而免除 對卧爱价贸易大鉴 1951

第四章 合同的内容与履行 z 一、口头证据规则与合同内容的确定 z 二、合同的解释 z 三、合同的补缺 z 四、合同的变更 z 五、履行义务因障碍或因情况变化而免除

第一节口头证据规则与合同内容的确定 口头证据规则的含义 二、不可分割的书面协议与可分割的书 面协议 三、平行协议规则 四、证明不存在有强制力的书面协议的 证据 五、口头证据规则与合同的修改 制卧爱份贸易本芳 1951

第一节 口头证据规则与合同内容的确定 z 一、口头证据规则的含义 z 二、不可分割的书面协议与可分割的书 面协议 z 三、平行协议规则 z 四、证明不存在有强制力的书面协议的 证据 z 五、口头证据规则与合同的修改

第一节口头证据规则与合同内容的确定 、 口头证据规则的含义 (一) 定义 (二) 《第二次合同法重述》规定 制卧香价贸易大芳 1951

第一节 口头证据规则与合同内容的确定 z 一、口头证据规则的含义 z （一）定义 z （二）《第二次合同法重述》规定

一 、口头证据规则的含义 (一)定义 口头证据规则(Parol Evidence Rule),是 指合同当事人订立了一个书面合同，把他们之 间的最终协议用书面形式表达出来后，有关他 们事先理解和协商合同内容的证据，无论是口 头还是其他形式的，都不能出于更改或对抗这 一书面文件的目的而被援用。 對卧爱价闐易大兰 1951

一、口头证据规则的含义 z （一）定义 z 口头证据规则（Parol Evidence Rule)，是 指合同当事人订立了一个书面合同，把他们之 间的最终协议用书面形式表达出来后，有关他 们事先理解和协商合同内容的证据，无论是口 头还是其他形式的，都不能出于更改或对抗这 一书面文件的目的而被援用

一、 口头证据规则的含义 (二)《第二次合同法重述》规定 S 213.Effect Of Integrated Agreement On Prior Agreements(Parol Evidence Rule) (1)A binding integrated agreement discharges prior agreements to the extent that it is inconsistent with them. (2)A binding completely integrated agreement discharges prior agreements to the extent that they are within its scope. ● (3)An integrated agreement that is not binding or that is voidable and avoided does not discharge a prior agreement.But an integrated agreement,even though not binding,may be effective to render inoperative a term which would have been part of the agreement if it had not been integrated. 對卧爱价贸易大鉴 1951

一、口头证据规则的含义 z （二）《第二次合同法重述》规定 z § 213. Effect Of Integrated Agreement On Prior Agreements (Parol Evidence Rule) z (1) A binding integrated agreement discharges prior agreements to the extent that it is inconsistent with them. z (2) A binding completely integrated agreement discharges prior agreements to the extent that they are within its scope. z (3) An integrated agreement that is not binding or that is voidable and avoided does not discharge a prior agreement. But an integrated agreement, even though not binding, may be effective to render inoperative a term which would have been part of the agreement if it had not been integrated

Illustrations: 1.D Corporation regularly borrows money from C Bank.S,the principal stockholder in D,offers to guarantee payment if C will increase the amounts lent.There is a bank custom to make such loans only on adequate collateral supplied by the borrower, and C promises S to follow the custom.S then executes a written agreement with C guaranteeing payment of future loans to D"with or without security."If the written agreement is a binding integrated agreement,C's prior promise is discharged. 制卧价贸易本岩 1951

Illustrations: z 1. D Corporation regularly borrows money from C Bank. S, the principal stockholder in D, offers to guarantee payment if C will increase the amounts lent. There is a bank custom to make such loans only on adequate collateral supplied by the borrower, and C promises S to follow the custom. S then executes a written agreement with C guaranteeing payment of future loans to D "with or without security." If the written agreement is a binding integrated agreement, C's prior promise is discharged

lllustrations: ● 2.In May A and B exchange properties and agree orally that A will make certain repairs on the property to be conveyed by A to B,the repairs to be finished by October 1.A and B then draw up and sign a memorandum of the repair agreement,specifying all the terms except that the memorandum is silent as to time of performance.If the memorandum is a binding completely integrated agreement,the agreement to finish by October 1 is discharged,and the repairs are to be finished within a reasonable time.The oral agreement as to October 1 may be relevant evidence as to what is a reasonable time. 制卧衔贸易本学 1951

Illustrations: z 2. In May A and B exchange properties and agree orally that A will make certain repairs on the property to be conveyed by A to B, the repairs to be finis hed by October 1. A and B then draw up and sign a memorandum of the repair agreement, specifying all the terms except that the memorandum is silent as to time of performance. If the memorandum is a binding completely integrated agreement, the agreement to finis h by October 1 is discharged, and the repairs are to be finished within a reasonable time. The oral agreement as to October 1 may be relevant evidence as to what is a reasonable time

Illustrations: ● 3.A and B enter into a contract that B will build a house on A's land for a price.Later they enter into an oral contract by which B promises to add a porch and A promises to pay an extra $2,000.Still later they enter into an integrated agreement in which B promises to build according to the original plans and A promises to pay the extra $2,000.The integrated agreement is not binding for lack of consideration, and the oral intermediate agreement is not discharged. 對卧爱价贸易大鉴 1951

Illustrations: z 3. A and B enter into a contract that B will build a house on A's land for a price. Later they enter into an oral contract by which B promises to add a porch and A promises to pay an extra $2,000. Still later they enter into an integrated agreement in which B promises to build according to the original plans and A promises to pay the extra $2,000. The integrated agreement is not binding for lack of consideration, and the oral intermediate agreement is not discharged

第一节口头证据规则与合同内容的确定 二、不可分割的书面协议与可分割的书面 协议 ● 当事人双方订立的书面协议是一个不可 分割的协议，还是一个可分割的协议， 决定口头证据规则是否适用于某一个特 定的案件。 制卧价贸易本学 1951

第一节 口头证据规则与合同内容的确定 二、不可分割的书面协议与可分割的书面 协议 z 当事人双方订立的书面协议是一个不可 分割的协议，还是一个可分割的协议， 决定口头证据规则是否适用于某一个特 定的案件

二、不可分割的书面协议与可分割的 书面协议 《第二次合同法重述》的规定 S 209.Integrated Agreements (1)An integrated agreement is a writing or writings constituting a final expression of one or more terms of an agreement. ● (2)Whether there is an integrated agreement is to be determined by the court as a question preliminary to determination of a question of interpretation or to application of the parol evidence rule. (3)Where the parties reduce an agreement to a writing which in view of its completeness and specificity reasonably appears to be a complete agreement,it is taken to be an integrated agreement unless it is established by other evidence that the writing did not constitute a final expression. 對卧爱价闐易大兰 1951

二、不可分割的书面协议与可分割的 书面协议 z 《第二次合同法重述》的规定 z § 209. Integrated Agreements z (1) An integrated agreement is a writing or writings constituting a final expression of one or more terms of an agreement. z (2) Whether there is an integrated agreement is to be determined by the court as a question preliminary to determination of a question of interpretation or to application of the parol evidence rule. z (3) Where the parties reduce an agreement to a writing which in view of its completeness and specificity reasonably appears to be a complete agreement, it is taken to be an integrated agreement unless it is established by other evidence that the writing did not constitute a final expression