十一月 6, 2017

澳洲金融专业论文代写:商法概论  

澳洲金融专业论文代写:商法概论

当某人不情愿地进入合同时,在某些不必要的压力下,这种情形被视为胁迫。在胁迫下,对受害人同意(人压非法)是部分或完全受另一方的行为。虽然订立合同的决定是由受害人作出的,但该决定不能被视为是自愿的,因为受害人没有任何其他选择。与狭义的胁迫概念相比较,产生了不应有的影响。这两个概念都是在缔约方之间的权力不平等情况下发生的,这使得支配方能够影响较弱的一方订立合同。然而,这两个概念之间也有些不同。

强迫参与施压与使用等非法手段威胁人,损坏或产生暴力,而不适当的影响涉及其他微妙的影响因素如现金、财产等形式的礼物,是一方用于产生不适当的影响另一方订立合同并不违法。胁迫和不当影响的重要区别在于,前者是党为了签订一个合同是没有任何其他的选择即不能拒绝进入合同。另一方面,面对不正当影响的一方仍有拒绝合同的选择,不受影响。

二者之间的另一个不同之处是,不适当的影响只会以不正当的影响的形式出现(占主导地位的政党以较弱的一方没有自由意志的方式行事),并假定不正当影响(支配党对弱者的信任)。胁迫可以在经济胁迫的形式(包括经济、商业或财务压力)胁迫对人(威胁或剥夺自由的缔约方或其亲戚像孩子,配偶,父母,等等),而对商品(开发压力进入破坏,破坏合同,非法控制货物,等)。

澳洲金融专业论文代写:商法概论

When a person enters a contract unwillingly, under certain illegitimate pressure the situation is considered as duress. Under duress, the consent of the victim (person pressurised illegally) is either partially or completely influenced by the actions of other party. Although the decision of entering into a contract is made by the victim, but the decision cannot be considered to be voluntary as the victim does not any other choice of action. In contrast to the narrow scope of the concept of duress, Undue Influence was developed. Both the concepts occur in situations due to inequality in power among the parties contracting, this allows the dominating party to influence the weaker party for entering into a contract. However, there is also some dissimilarity between both the concepts.

Duress involved pressuring people with use of illegal means like threating, damaging or creating violence, whereas undue influence involves other subtle influential factors like gifts in the form of cash, property, etc. The means used by one party for the creating undue influence on another party to enter into a contract are not always illegal. A significant difference between duress and undue influence is that in the former case the party been pressurised to enter into a contract is not left with any other alternative i.e. cannot refuse from entering into a contract. On the other hand, a party facing undue influence still has the option of refusing for the contract without getting affected by the influence.

Another dissimilarity between the two is that undue influence is made only on people in the form of express undue influence (the dominant party acts in such a way that the weaker party does not have a free will) and presumed undue influence (dominant party’s trust over the weaker party). Duress can be in the form of economic duress (involves economic, commercial or financial pressure) duress on person (threating or depriving the liberty of the contracting party or their relatives like children, spouse, parents, etc.), duress on goods (developing pressure to enter into a contract by damaging, ruining, illegally controlling the goods, etc.).

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