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英文合同终止之比较

Termination refers to an ending, usually before the end of the anticipated term of the contract.

Termination may be by mutual agreement or may be by exercise of one party of one of his remedies due to the default of the other party.

 

Cancellation occurs when either party puts an end to the contract for breach by the other and its effect is the same as that of "termination "except that the canceling party also remains any remedy for breach of the whole contract or any unperformed balance.

 

When it is said that a contract is discharged, it is always meant that one or more of the legal relations of the parties have been terminated .the meaning that is most commonly intended is that the legal duty of one of the parties has been terminated .A party who is asserted to be under a legal duty by virtue of his contract may reply that the duty has been discharged by some factor that has occurred since the making of the contract.

 

As for the rescind a contract ,that is to say ,to abrogate a contract ,release the parties from further obligations to each other and restore the parties to the positions they would have occupied if the contract had never been made .For instance ,in rescinding a sales contract ,any monies paid or goods received would usually be returned to their original holders ,though the parties could agree otherwise .

 

1. Terminate a contract ,名词形式 termination of contract

Black's Law Dictionary解释说:

Termination refers to an ending, usually before the end of the anticipated预期的 term of the contract, which termination may be by mutual agreement or may be by exercise of one party of one of his remedies救济 due to the default of the other party.

Termination通常指合同在约定期满之前终止履行。该终止既可经双方同意而做出,也指一方因另一方违约而行使的一种救济权。

但是《美国统一商法典》却规定,“终止”是指合同方未违反合同约定而依法终止合同

(Under the Uniform Commercial Code, "termination" means legally ending a contract without being broken by either side)

 

2. Cancel a contract,

Black's Law Dictionary解释说:

Cancellation occurs when either party puts an end to the contract for breach by the other and its effect is the same as that of "termination" except that the canceling party also retains any remedy救济 for breach of the whole contract or any unperformed balance.

Cancel 指一方另因另一方违约而解除或取消合同,其效力与termination (终止)一词几乎一致,不同点在于撤销一方仍有权对整个合同或合同中未履行部分主张救济。

 

3. Discharge a contract

Steven H. Gifis的“Law Dictionary”解释说:

When it is said that a contract is discharged, it always meant that one or more of the legal relations of the parties have been terminated. The meaning that is most commonly intended is that the legal duty of one of the parties has been terminated. A party who is asserted 宣称 to be under a legal duty by virtue of 优点his contract may reply that duty has been discharged by some factor that has occurred since the making of the contract.

Discharge a contract 意味着合同当事人的合同关系已经终止。他方在主张自己应履行因合同而发生的法定义务时可辩称,合同义务已因订立合之后发生的因素而解除。看来discharge a contract多指合同关系的解除。

 

4. Rescind a contract

Steven H. Gifis 的“Law Dictionary”解释说:

To abrogate废除 a contract, release the parties from further obligations to each other and restore the parties to the positions they would have occupied if the contract had never been made. For instance, in rescinding 废除 a sales contract, any monies paid or goods received would usually be returned to their original holders though the parties could agree otherwise.

Rescind a contract指取消合同,免除当事人之间合同义务,将当事人各自地位恢复到合同订立之前的状态。比如,解除买卖合同时,尽管当事人可另有约定,但通常会将支付的价款或收到的货物返还给原持有人。Rescind a contract 这种解除意味着将法事人关系恢复到合同成立之前的状态。

 

5.Revoke a contract

Black's Law Dictionary解释说:to annul or make void by recalling or taking back即以取消或撤回的方式废止或宣布无效。相比之下,revoke出于行为人的意愿意,即是行为人主动发出的行为。了解上述区别与联系,可避免对应单词的混用,实现术语的准确表达。

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