B.

are commonly understood as fundamental rights, while states and non-governmental

organizations are responsible for the protection of every human being
C. are embedded into national legal systems, as human rights violations mostly occur in
domestic cases
D. are regarded as requiring empathy and the rule by law
2. In moral reasoning, .
A. the term“human rights” has a broader connotation than the“rights” in law
B. the moral validity of a“right” could be approached from the perspective of its legal status as
an entitlement
C. a right's moral basis could not be accounted by the conceptual system provided by natural
law, social contract, justice as fairness, and other theories of justice
D. under the philosophical traditions, individuals are granted with a right simply because he or
she is a human being, or a member of a political community
3. “Human rights” could be also expressed as “fundamental right”, “basic freedom”,
or“constitutional right”, because .
A. its definition, origin and scope are still in ambiguity
B. it refers to the abstract terms, and is not litigable
C. it is prior to other rights with a peremptory feature
D. it is more like a universal concept, than a manifestation of the social values in a certain
society
4. According to legal positivists, .
A. human rights result from a natural order or divine origin
B. a society is governed by a set of rules from a formal norm-creating process
C. rights based on positive law are regarded as ethnical claims or demands
D. declarations, treaties, law, or other normative instrument result from political, legal and
social development process.
5. The“International Bill of Human Rights” consists of .
A. the Universal Declaration of Human Rights of 1948
B. the Charter of United Nations
C. the International Covenant on Civil and Political Rights and the International

56 °一
 UNIT 5 Human Rights

Covenant on Economic, Social and Cultural Rights

D. both A and C

6. If the theories of moral philosophy or the extant codes of human rights do not address the

victims of human rights violation, .

A. they will seek for the protection from another country

B. they will give up their claims

C. they will work out a new theory to satisfy the initial demands

D. they will change the political system and overthrow the government

II. True or False Judgment.

1. All human beings are born free and equal in dignity and rights. They are endowed with

reason and conscience and should act towards one another in a spirit of brotherhood.

2. Ethical discourse, legal/ political discourse and advocacy discourse are not alternative or

sequential, because they are all used in different contexts.

3. The moral basis of a right can be construed on concepts such as natural law,social contract,

justice as fairness, consequentialism and other theories of justice.

4. Natural rights and these rights based on positive law are both recognized through a political

and legal process that results in a declaration, law, treaty, or other normative instrument.

5. Human rights are divisible. Civil and political rights, economic, social and cultural rights,

collective rights are divisible and dependent. Likewise, the deprivation of one right will not affect the

others.

Text B
Social and Economic Rights as Human Rights

Article 22

Everyone, as a member of society, has the right to social security and is entitled to realization,

through national effort and international co-operation and in accordance with the organization and

resources of each State, of the economic, social and cultural rights indispensable for his dignity and

the free development of his

 personality.
Article 23
1. Everyone has the right to work, to free choice of employment, to just and
favorable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal
work.
3. Everyone who works has the right to just and favorable remuneration ensuring
for himself and his family an existence worthy of human dignity, and supplemented,if
necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his
interests.
Article 24
Everyone has the right to rest and leisure, including reasonable limitation of
working hours and periodic holidays with pay.
Article 25
1. Everyone has the right to a standard of living adequate for the health and well-
being of himself and of his family, including food, clothing, housing and medical care
and necessary social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 26
6. Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available and higher
education shall be equally accessible to all on the basis of merit.
7. Education shall be directed to the full development of the human personality
and to the strengthening of respect for human rights and fundamental freedoms. It shall
promote understanding, tolerance and friendship among all nations, racial or religious
groups, and shall further the activities of the United Nations for the

58
 maintenance of peace.

UNITS Human Rights to their children.8. Parents have a prior right to choose

the kind of education that shall be given

26. which include provisions relating to social security, conditions of work, re st
andleisure, standard of living, and [Link] UDHR contains a list of social and
economic rights set out in Articles 22 to
The inclusion of these rights occasioned some concern in the decades following
the adoption of the UDHR and their inclusion continues to be controversial for some
who resist the idea that these rights are as central as civil and political rights. Others
argue that they are more central. And some think of them as social and economic
aspirations but doubt whether the language of rights makes sense.
Social and economic rights are vital. They reflect genuine human needs that
every state has an obligation to attend to, within existing resources, in the interest of
all those committed to their care. We think it is fitting and valuable that the
UDHRenshrined social and economic rights in the same document as civil and
political rights, and thus to perceive human rights as a whole in the context of a
single declaration. The social and economic provisions of the UDHR should be
interpreted to mean that everyone is entitled to certain minimum standards of health,
education,and social security. The concept of dignity—— while abstract——
provides a yardstick against which to set minimum measures. The extent of available
resources in each society is one determinative factor, though the UDHR also imposes
constraints on the allocation of such resources as there are.
Much of the success of the human rights movement over nearly seven decades
is attributable to the creation of a set of standards that can be upheld without
changing the structures of international affairs and the international economy. While
social and economic rights were included in the UDHR, they differ from this
paradigm in that their realization might be thought to require some restructuring of
the international order. This challenges us to consider the extent to which social and
economic objectives should be pursued through a human rights framework.
Social and economic rights are vital. They are conceptually linked to civil and
political rights because respect for human dignity requires that both be upheld. There
一。 59
 法律英语阅读教程

is also a causal connection in that civil and political rights can be used to secure
social and economic rights, and social and economic rights make possible the
meaningful exercise of civil and political rights. Indeed, the failure of social and
economic rights makes individuals more vulnerable to other human rights
aluses,such as forced labor. Dire poverty and the other ills and vulnerabilities that
come with it are a standard threat to rights of all kinds.
It is right for the world to indicate to governments that attention to matters of
social security, conditions of work, rest and leisure, standard of living, health, and
education are now regarded as elementary and fundamental tasks of government, laid
down as compelling priorities in relation to whatever resources are available. The
rights here are not optional and they are not just wistful longings. A lack of resources
does not turn such rights into a mere wish list. Countries have a categorical obligation
to do all that they reasonably can to fulfill these rights. Moreover, other states and all
international organizations have an obligation to assist particular countries in this
regard.
The value and relevance of Articles 22 to 26 are not just in the immediate
requirements they impose. Like other articles of the UDHR, these provisions lay down
a foundation for a subsequent and wider comprehension of human rights. In the case of
social and economic rights, the articles of the UDHR prefigured and prepared the way
for the ICESCR (International Covenant on Economic, Social and CulturalRights); the
development of international agencies devoted to securing these rights,directly and
indirectly; the inclusion of social and economic rights in modern national constitutions
(and their elaboration by courts in the context of national constitutional law); and the
evolution of doctrines for benchmarks and core provision of these rights.
Social and economic rights are dependent on the availability and distribution of
resources in a way that civil and political rights are not. It is true that eivil and political
rights do have their costs and, in some circumstances, social and economic rights
require forbearance rather than costly action. But in general, the level of provision
needed for social and economic rights is high. So paying attention to the capacity of the
actors responsible for delivering these rights is both natural and
 UNIT5 Human Rights

unavoidable. It is a matter of debate—— among all commentators on the UDHR——whether

Artieles 22 to 26 should be read as stipulating a common core of minimum provision or whether

the provision that is expected should vary with the social and economic circumstances and

expectations of each society.

We should be uncompromising on social and economic rights as they are formulated, but

recognize some degree of relativity in capacities and context. Specifically,we should keep faith

with the Declaration's explicit universality, both as to actual provision and as to the expectations

that people are entitled to. The social and economic provisions of the UDHR should be interpreted

to mean that everyone is entitled to certain minimum standards of health, education, and social

security. The concept of dignity—— while abstract—— provides a yardstick against which to set

minimum measures.

The extent of available resources is one determinative factor, though the UDHRalso imposes

constraints on the allocation of such resources as there are: the UDHRmandates that the actors

responsible for social and economic rights give priority to health, education, and social security

based on resources that can reasonably be made available given economic and fiscal

circumstances, rather than on the resources that actually are made available. It is possible that these

rights may permit a reasonable level of cultural relativity; to take Article 23, what counts as “an

existence worthy of human dignity” may vary from one set of social and cultural circumstances to

another. However, the commission does not accept the idea that there are cultural differences that

can affect who should benefit from social and economic rights or can justify maldistribution in this

regard. So, for example, we do not believe that people should ever be denied equal social and

economic rights because they are women or ethnic minorities.

States have front-line responsibility for the social and economic well-being of their citizens.

Fair economic growth has a critical role to play in this. It is crucial to see a stronger connection

between economic policy and the instruments of human rights. It is evident, however, that the

challenges faced by many states cannot be resolved entirely by actions in those states alone. There

is an overwhelming moral case for interpreting the social and economic rights provisions of the

Declaration as placing
 法律英语阅读教程

obligations on the international community to alleviate world poverty. International

aid and transfers, aimed at strengthening the capacity of recipient states to secure
the social and economic rights of their citizens, thus have an indispensable role to
play. Responsibilities among the international community to uphold social and
economic rights are in the commission's view held not only by states, but also above
the level of states by international organizations and below the level of states by
corporations and individuals.
(1650 words)
Answer the Following Questions Based on Text B.
1. What are the rights entitled to everyone in working environment?
2. How does everyone have the access to the education system?
3. Why are social and economic rights vital?
4. What matters have been regarded as elementary and fundamental tasks of
government?
5. How can states take the responsibility for the social and economic well-being
of their citizens?

推荐书目
1. K. David, Caste-based Discrimination in International Human Rights Law,
New York, RoutledgeTaylor & Francis Group.
2. M. Jill, Human Rights Law and Personal Identity, New York, Routledge
Taylor & FrancisGroup.
3. A. B. Mashood, S. Manisuli ed., International Human Rights Law: Six
Decades after theUDHR and Beyond, New York, Routledge Taylor & Francis
Group.
4.[印]阿玛蒂亚·《》 2012 年版。
 UNIT 6

Tort Law

Text A
The Rights of Privacy' and Publicity² for Minors Online

The rights of privacy and publicity are related but distinct concepts, and thus
it is important to address the development of each right and the distinction
between them before discussing the extent to which minors possess such rights in
the Internet context today.
The concept of privacy is an ancient one, and one that has been explored by
lawyers, judges, and legal scholars for generations. The late nineteenth
century,however, was the first time such scholars began to discuss the right of
privacy as a legal right rather than a mere natural or fundamental one. For
example, in 1890, a law review article authored by Samuel D. Warren and Louis
D. Brandeis explored the need for legal recognition of one's“right to be let alone. ”
Warren and Brandeis claimed that the need for an expansion and development in
the law to protect a person's“right to be let alone” stemmed from “recent
inventions and business methods.” The authors stated that the development
of“instantaneous photographs and newspaper enterprises” has led to the invasion
of“the sacred precinets of private and domestic life,” a grave problem that
threatened to do away entirely with individual privacy.
Following the publication of Warren and Brandeis’ article, courts began to
develop the legal right to privacy using a variety of doctrines, among them
property,tort, and contract law. In 1905, Georgia became one of the first states to
judicially recognize a right to privacy in a case called Pavesich v. New England
Life Insurance
法律英语阅读教程

Company³. This case declated that the right to privacy is derived from natural law
and from the writings of commentators and judges, and that“the right of privacy is
embraced within the absolute rights of personal security and personal
liberty.”Panestch soon became the primary common law authority in favor of the
legal recognition of the right of privacy.
Today, some states have enacted statutes specifically addressing Internet
privacy. Statutes in Nevada and Minnesota, for example, “require Internet
ServiceProviders to keep private certain information concerning their customers,
unless the customer gives permission to disclose the information.” Minnesota's
statute further requires Internet Service Providers to obtain permission from users
before disclosing information about users’ “online surfing habits” and the sites users
visit.
While the right of privacy is an early one, the right of publicity is a relatively
more recent development. Publicity rights were recognized beginning in the
1950s,originally affording modest protections to one's identity, and later expanding
to protect emerging methods of using another's identity for commercial gain. The
right of publicity has been characterized as“the reverse side of the coin of privacy,”
and protects“the right to control the commercial value of one's own identity.”
Thus,while the right to privacy tends to focus on a person's mental, emotional, and
reputational injuries, the right of publicity focuses on the economic value of a
person's identity. The right of publicity protects a person from injury resulting from
another's use of their name or likeness to the commercial or other benefit of the
other person without their consent. Thus, for example, a person's publicity rights
could be violated if their name, image, likeness, or identity is used in an
advertisement for goods or services without their consent.
In the United States, the right of publicity is a function of state law, meaning
that the right varies from state to state, both in the extent of protection offered and the
mechanism by which the right is recognized. Currently, nineteen states recognize the
right of publicity through a state statute. In addition, twenty-eight states recognize the
right through judge-made common law. Many modern publicity statutes focus almost
exclusively on celebrity rights when considering the right to publicity. Indiana's
publicity statute, for example, provides broad protection to celebrities, even after
 法律英语阅读教程
64 °——
 UNHT 6 Fort Law

death. Specifically, Indiana's publicity statutes states “a person may not use an aspect of a personality's

right of publicity for a commercial purpose during the personality's lifetime or for one hundred years

after the date of the personality's death without having obtained previous written consent……”.

Indiana's statute, and others like it, suggests that ordinary adults and children lacking“personality”

status cannot enjoy the protection of a publicity statute.

However, not all states share this statutory scheme. Although some states extend the right of

publicity only to public figures, other states do extend the right to private persons as well. States that

offer protection to private persons, unlike states with publicity statutes like those of Indiana, may offer

some protection of the publicity rights of minors participating in online activities today.

The right to privacy has been extended in some respects, and, with varying levels of protection, to

minors participating online. Some states have enacted (or attempted to enact) specific privacy statutes

regarding minors’ use of the Internet,while other aspects of online protecting for minors online are

covered by federal law.

In 1998, the U. S. Congress signed into law the Children's Online PrivacyProtection Act

( “COPPA” ), identifying three goals the law was intended to accomplish:

(i) enhance parental involvement in order to protect the privacy of children in the online

environment;(ii) help protect the safety of children in online forums such as chat rooms, home pages,

and pen-pal services in which children may make public postings of identifying information collected

online; and (iii) limit the collection of personal information from children without parental consent.

Fifteen years after COPPA's enactment, in 2013, COPPA was amended to address the significant

increase in technology affecting minors resulting from changes such as increases in the use of mobile

devices and social networking sites among children. The 2013 amendments strengthen children's

privacy protections online and provide parents with increased control over personal information that

websites ean collect from children.

COPPA defines“child” as someone under the age of thirteen, and prohibits certain actions of

websites operators pertaining to such children on the Internet. It

法律英语阅读教程

goes on to call for regulations requiring website operators to provide, upon the
request of a parent whose child divulged personal information to the operator's
website, a description of the information collected and an opportunity to refuse
further use or maintenance of the information. Also prohibited is requiring
participation in a game,offering a prize, or some other activity that is conditioned
upon the child providing more personal information than reasonably necessary.
Lastly, subsection (b) ofCOPPA calls for regulations requiring the operator of a
website or online service to“ establish and maintain reasonable procedures to protect
the confidentiality,security, and integrity of personal information collected from
children.”
The regulations called for in COPPA are the responsibility of the Federal
TradeCommission (FTC)⁴, a responsibility that includes both the issuance and
enforcement of the regulations. The result of COPPA's call for regulations was
theChildren's Online Privacy Rule. The FTC states the primary purpose of COPPA is
to place parents in control over what information is collected from their young
children online.
Indeed, some states have enacted their own privacy laws directed at minors.
In2013, picking up where COPPA left off, California enacted a statute, which took
effect on January 1, 2015, entitled“Privacy Rights for California Minors in a
DigitalWorld Act.” The purpose of the Digital World Acts is to limit“ (a) marketing
specified types of products and services to minors on the Internet or through mobile
application, and (b) using, compiling, or disclosing data about minors for the purpose
of marketing or advertising those products and services. ” In addition, theDigital
World Act“provides for the removal of content or information posted by minor, who
are registered users of a website, online service, or application.”
California is currently the only state with an online privacy statute specifically
directed at minors. However, one commentator predicted that the new law has the
potential to“lead to further efforts among policymakers and privacy advocates
inWashington, D. C. , to call for nationwide privacy protections for all children
under18 years of age.”
The right of publicity varies, sometimes drastically, from state to state.
Thus,whether minors possess the right of publicity in a given situation depends both
on
 法律英语阅读教程
“
 UNIT 6 Tort Law

whether a state recognizes the right of publicity and, if so, whether the state recognizes the right of

publicity for private individuals or limits the right to only personalities. Of the twenty one states

that have right of publicity statutes, half expressly mention that the statute covers minors. Statutes

that do not explicitly mention minors, however, nonetheless appear to include minors implicitly. For

example, the Illinois Right of Publicity Act prohibits the use of“an individual's identity for

commercial purposes,” where“individual” is defined as“a living or deceased natural person……”

This definition seems to impliedly include persons both under and over the age of eighteen.

A significant implication of the technological revolution of the modern age is a dramatic rise

in minors participating in online activities. A key repercussion of minors’ involvement online is

potential threats to minors’ rights of publicity and privacy. The right of privacy for minors online

has been addressed by both state and federal legislation, while the right of publicity for minors

online has been recognized through state statutes and judicial decisions. Certain gaps exist,

predominantly in the area of online privacy, for minors over the age of thirteen, and it is important

that both Congress and state legislatures undertake policy investigations and determine whether

greater protection is needed for children above the age of twelve but below the age of majority.

At the core of the issue of minors’ rights of privacy and publicity online is the dangers minors

face of inadvertently or unwittingly waiving, licensing, or consenting to the use of their personal

information and publicity rights through the use of online agreements. Although the retained

benefits exception is important to maintain fairness between businesses and consumers, the lack of

clear guidelines from online service providers instructing minors and their parents how to exercise

these rights constitutes an unfair trade practice.

To resolve this issue, the FTC, acting under § 5 of the FTC Act, must create regulations

requiring online providers to post policies and guidelines on their websites informing minors about

the right of disaffirmance and about the“benefits” a minor must return in order to void any

agreements with the business. Specifically, the FTCshould create a policy requiring minors to return

any money or property still within

法律英语阅读教程

their control, and allow online companies providing intangible benefits to its users to
create their own policies of exactly how a minor can disaffirm, subject to approval by
the FTC. Creating clear guidelines and educating minors and their parents about how to
disaffirm online contracts waiving publicity and privacy rights will not only protect
minors, but will also reduce the need for costly litigation for businesses.
(1788 words)

Notes
1. right of privacy (亦作 right to privacy) 隐私权。1890 年, 美国的两位法学家沃伦和
布兰蒂斯 (即本文中提到的两位法学家)《》《》“隐私权”一词，这被公认为“隐私权”概念的首次出现。保护隐私权的法律制度首
先在
 理和欺骗性的条例或规章来确保和促进市场顺畅运营

Exercises

I. Reading Comprehension Questions.

1. According to the decision in Pavesich v. New England Life Insurance Company,which of

the following statements is NOT right?

A. Either judicially or legislatively, the right of privacy is a distinct right.

B. Right of privacy is a kind of personal liberty.

C. The writings of legal scholars and judges may shape the development of law.

D. The writings of legal scholars and judges can create a right.

2. According to Indiana's publicity statutes, the right of publicity intends to .

A. protect the rights of the celebrities, ordinary adults and children

B. protect a wide range of rights of celebrities, even after their death

C. exclude the right of privacy

D. focus on the protection of personal injury due to another's use of their name or likeness

without consent

3. According to COPPA, what are parents permitted to do in respect of their children online?

A. Parents can sign a contract with websites operators to limit children's online time.

B. Parents can get a report from the websites operators about personal information collected from

their children.

C. Parents can decide whether websites operators could collect, use, or disclose their children's

information.

D. Parents can get the guidelines from online service providers on protecting minors’ personal

information and publicity rights.

4. COPPA provides that .

A. children under the age of thirteen should not submit their personal information to websites

operators or online service

B. children should not be induced to participate in a game, a prize, or other

———。 69
activities that require children to provide more personal information than reasonably
necessary
C. parents should cooperate with websites operators or online services to submit their
children's personal information
D. parents have the right to request website operators to provide their children online
habits, online forums visited frequently
5. It can be concluded that Privacy Rights for California Minors in a Digital WorldAct
of Californian .
A. provides more supplementary protection to minors online on the basis of COPPA
B. recognizes the right of privacy online of minors above the age of 12
C. is the first state statute to protect the right of privacy of minors
D. is likely to be used nationwide to all the minors online
6. What should be resolved immediately to protect minors’ privacy and publicity rights
online?
A. Children's access to some websites should be restrained.
B. Parents should be educated to limit their children online time.
C. Clear guidelines from online service providers must be regulated.
D. Litigation concerning minors' privacy and publicity rights should be simplified.
II. True or False Judgment.
1. The right of privacy is not only a natural right but also a legal right.
2. The right of publicity protects the rights of minors in making public postings of the
information they collect.
3. COPPA protects children's privacy more than restricts children's online activities.
4. Any state that recognizes the right to publicity of minors provides all the concerned
rights of minors.
5. Acts are needed to protect the rights of privacy and publicity online of children
above the age of twelve but below eighteen.
 UNIT6 Tort Law

Text B
Tort of Defamation

The tort of defamation protects a person's reputation. Broadly speaking,defamation laws confer

a cause of action against another for publication of matter that tends to lower the plaintiff in the

estimation of the ordinary reasonable person. Defamation liability encompasses not only

disparagement of an individual's person character, but also disparagements of an individual's or

corporation's reputation in trade, business,profession, or office. Defamation is a tort of strict liability.

Provided defendants have the requisite intention to publish the defamatory matter—— or could

reasonable anticipate publication—— they do not escape liability by establishing that they had no

intention to injure the plaintiff's reputation, or otherwise acted without fault.

The objective of the law of defamation is to strike a balance between two

competing interests— the private interest of protection of reputation and the public
interest in freedom of expression. As we will see, it is relatively simple for a plaintiff
to establish a prima facie case in defamation: the defenses therefore play a critical
role in reconciling these interests. A number of defenses to defamation actions
permit publication of defamatory matter, including where the matter is true, a matter
of fair comment, or communicated on an occasion of privilege. It is worth
emphasizing at the outset that it is not necessary to establish a prima facie claim in
defamation to prove that the statement was false. The truth of the matter is, rather,
the subject-matter of a defense (the defense of justification).
The true motivation for a defamation action is often a desire by the plaintiff to prevent, or obtain

redress for, an invasion of privacy.

In April 2013, the Parliament of the United Kingdom passed the Defamation Act2013 (UK),

substantially reforming common law principles, in particular the common law of defenses. The

legislation was in response to concerns that the existing defamation laws were “chilling” contributions

to important public debates on scientific and other matters. The UK Defamation Act has introduced a

threshold requirement of“serious harm” before a claim can be brought. It provides, in section
法律英语阅读教程

1 (1), that“a statement is not defamatory unless its publication has caused or
is likely to cause serious harm to the reputation of the claimant. ” The UK
DefamationAct also replaces the three main common law defenses with
defenses of truth (s4),honest opinion (s 4) and a defense of“publication on a
matter of public interest”(s4). Similarly to the statutory qualified privilege
defense contained in s 30 of theAustralian uniform defamation legislation, the
UK public interest defense applies where the statement was on a matter of
public interest and the defendant reasonably believed that publishing the
statement was in the public interest: s 4 (1). The legislation also provides a
useful defense for operators of websites that host user-generated content (s 5)
and a privilege defense covering article published in peer reviewed scientific
or academic journals (s6).
The uniform defamation legislation has abolished the distinction between
libel and slander, the significance of the distinction is now largely a matter of
historical interest. For that reason, the following discussion of libel and
slander will be very brief.
Broadly speaking, libel is defamatory matter in a permanent form (such
as the written form), whereas slander is defamatory matter in a transient
form (such as the spoken word). At common law, libel is actionable per se,
whereas slander is not generally actionable without proof of special damage.
The reason why the common law treated libel more seriously than slander
were partly historical, and partly based on the fact that libelous matter tends
to be more enduring than slanderous statements and to have the potential to
be more widely propagated. Also, it was thought that greater significance is
attached to the written rather than the spoken word, and that written words
suggest a calculated intention to injure the plaintiff, whereas the spoken word
could have resulted from a spontaneous outburst.
The distinction between libel and slander was criticized, in part because
of the difficulties in categorization in some cases. The uniform defamation
legislation has abolished the distinction. Section 7 provides that all defamatory
matter is actionable without proof of special damage. It is unlikely that this
reform will result in a significant increase in defamation litigation for
slanderous statements, as it is a defense under s 3 of the uniform defamation
法律英语阅读教程
legislation for the defendant to prove that
UNIT6 Tort Law the defamation was trivial, in the sense that the circumstances of the
publication were such that the plaintiff was unlikely to sustain harm. Accordingly,
defamatory matter spoken to a small number of people will often not be actionable.
At common law, a person has one cause of action for a publication of defamatory
matter, regardless of the number of defamatory imputations(meanings) arising from
the matter. The uniform defamation legislation maintains the common law position
that there is a single cause of action for the publication of the defamatory matter,
irrespective of the number of imputations contained in the matter: s 8. Section 23 then
provides that, if a person has brought defamation proceedings for damages against a
defendant in relation to the publication of any matter, leave of the court is required to
bring further defamation proceedings against the same defendant in relation to the
same or any other publication of the same or like matter. A publication will be of
the“same or like matter” as an earlier publication where there is a“significant and
substantial”likeness between the two publications. The policy underlying s 23 is to
eliminate duplication of proceedings and to prevent plaintiffs from bringing multiple
proceedings as a way of avoiding the statutory cap on non-economic losses. In effect,s
23 determines whether proceedings for different publications should be brought as one
action, thereby limiting the plaintiff to only one award of damages.
Any natural person can bring an action in defamation while they are alive.
Acorporate body also has standing to sue in defamation, unless it is excluded from
bringing a claim by the uniform defamation legislation.
The common law rule is that a dead person cannot be defamed. A defamation
action is personal to the person defamed, and as such the estate of a deceased person
is not permitted to sue for defamation of the deceased— which explains why
allegations about a person are often only made public after their death. The arguments
normally advanced for denying a cause of action by a deceased estate are that the
dead do not have reputation to protect; the death of the person defamed makes it
impossible to establish the truth of the matter through cross-examination; and that
contemporary historical writing would be inhibited.
Furthermore, at common law a defamation action cannot be brought or
maintained against a deceased person; if the defendant dies, so too does the
defamation
法律英语阅读教程

action. Despite a recommendation in the discussion paper released by the

CommonwealthAttorney-General's Department for a relaxation of these rules, the

uniform defamation legislation maintains the current common law position.

(1162 words)

Answer the Following Questions Based on Text B.

1. Why is defamation a tort of strict liability rather than a violation of criminal

legislation?

2. For what can the plaintiff file a defamation action?

3. What used to be the differences between libel and slander?

4. Why is the plaintiff required to get the leave of the court for further defamation

proceedings against the same defendant?

5. Why can't a defamation action be brought against a deceased person?

推荐书目
1. M. Differdenfer, The Rights of Privacy and Publicity for Minors Online,

Louisville,University of Louisville Law Review 54 (1), p.131-156.

2. V. Harpwood, Modern Tort Law, Cavendish Publishing Ltd.

3. D. J. Solove, Understanding Privacy, Cambridge, Harvard University Press.

4. [美]杰伊·M.《》 2004 年版。
 UNIT 7
Contract Law

Text A
Contract Law in the United States
The United States contract law regulates the obligations established by
agreements,either express or implied, between private parties. Dated back to
the colonial times,the laws or relating standing rules largely originated and
developed from the English common law, which varies from state to state
although some basic rules remains constant. With the growing modern
business transactions and practices, a new uniform contract law is needed for
contemporary legal issues. Consequently, there is no nationwide uniformed
federal contract law until the passage of the UniformCommercial Code (UCC)¹
in 1952. With the widely adoption of the Code which governing transactions
involving the sale of goods has patterned state laws and has become
standardized to some extent, there still remains significant diversity in the
judicial interpretation of contracts, depending upon the extent to which a given
state has codified its common law of contracts or the varied adoption of the
Restatement(Second) of Contracts².
Formation of contracts
What is a contract? A contract is an agreement between parties for value,
which is legally enforceable. Some essential elements are required in the
formation of a contract, that is, offer, acceptance, consideration, intention,
capacity and [Link] offer is a communication to a party of an intent to
enter into a contract. The acceptance is the response by the offeree to offeror of
an intent to contract— to be bound by the terms and conditions set forth in the
offer. Consideration refers the value
——。 75
 法律英语阅读教程

paid for the promise, which every contract should have. The intention usually
represents mutual assent, that is, each party must have the same
understanding or a“meeting of the minds” regarding the contract. The
capacity, under the law,constitutes being over the age of 18 and of sound mind.
Legality shows the legal purpose as well as the legal subject matter of the
contracts to be enforceable. Every single element will determine whether or at
what point a binding agreement has been reached between the parties
concerned. A binding contract must be in the form required by the law, and the
contracting parties are legally capable to contract. An enforceable contract
may be made in writing, made orally or can be implied form the parties’
conduct.
Sometimes a contract may be defective and may consequently be void or
voidable or unenforceable. A contract may be void, that is, no contract exists. If
one, or both,of the parties is not recognized in law as having legal capacity to
consent to a contract, for example, minors, the young people under 18 or
persons with certified mental incapacity. A contract is voidable, that is, it may
be avoided, or cancelled,by one of the parties if there is some defect in its
formation. For instance, if the contract for the sale of land is not in writing, the
parties can either ignore the defect or treat the contract as fully binding, or one
of the parties can use the defect as a means for setting the contract aside. Some
contracts may be neither void nor voidable but cannot be enforced in a court of
law, for example payment of a gambling debt. Lapse of time may render a
contract unenforceable. The limitation period for a legal action brought under
a deed, or statutes of limitations varies from country to country, and within
countries such as the United States from state to state. In theU. S. the §2–725 of
UCC prescribed it should be limited within four years, In theU. K. , an action
on a simple contract is barred from being raised after six years.
Performance
A contract is a legally enforceable promise, either made in writing or
orally. Once the contract is created, then each party to the contract is bound to
perform. Therefore,formation of the contract is only the beginning process.
Once the parties agree to their duties and obligations, the next step is
performance, which occurs when the parties complete their obligations under
the contract. The performance may include . the
 法律英语阅读教程

76 °----
 delivery of goods, conducts or payment. Often though, conditions are attached to
a party's performance, which can either terminate contractual obligations or
continue them. Whether the conditions are met will determine the status of the
contract.
A condition qualifies the contractual obligation. It acts as a trigger to the
promises between the parties. Section 224 of the Restatement (Second) of
Contractsdefines a condition as:
an event, not certain to occur, which must occur, unless its non-occurrence is
excused, before performance under a contract becomes due.
When the conditions in a contract are not performed, the obligations of the
parties are normally either discharged or terminated, depending on the
[Link], in some circumstances, contractual obligations can be
terminated by the happening of certain events. Termination implies that the
contractual obligations of the parties have ended. Whether the termination has
positive or negative results depends on how the performance was discharged.
Breach of contracts
When the party or parties fail to perform their promises or fail to perform the
contractual obligations in a satisfactory manner without a legitimate legal excuse,
it constitutes a breach of contract. The contract may be either written or oral and
the breach may include not finishing a job, failure to make payment in full or on
time,failure to deliver all the goods, substituting inferior or significantly different
goods without notification, not insuring goods, etc. A breach occurs when the acts
of nonperformance are so material to the transaction that the non-breaching party
can treat the obligation as terminated. The Restatement (Second) of Contracts sets
out guidelines for determining whether a breach is material in §241.
Although a contract may be terminated, this is not the end of the story. The
person who has been injured by the breaching party can hold the breaching party
to his or her contractual obligations through enforcement of a court action. The
law provides certain legal remedies or methods of compensation to the non-
breaching party. These remedies may be either monetary or nonmonetary.
In certain instances, one of the parties to a contract will learn that another party,
without justification, intends to breach the contract when performance→ 77
becomes due. When the words and conduct of the parties indicate that performance
will not or cannot be rendered, this is referred to as anticipatory breach or
anticipatory repudiation. Here the non-breaching party believes that the other party
will not perform its obligations and, rather than waiting for the actual breach to
occur,the non-breaching party may either substitute performance with another
party in anticipation of the breach or immediately bring an action for breach.
Insolvency or financial inability is a signal of anticipatory breach.
Remedies
A lawsuit for breach of contract is a civil action and the remedies awarded are
designed to place the injured party in the position they would be in if not for the
breach. That is, when a party fails to perform its obligations under a contract, the
injured party may request a court to award compensation for the losses. This
compensation is known as a remedy. The type of remedy a court can grant will
depend upon the kind of injury suffered, but remedies fall into two general
categories: legal remedies and equitable remedies. A legal remedy is a monetary
damage that the party can claim for the loss suffered as a result of the other party's
failure to perform contractual obligations. Legal remedies are the type ofremedy
most commonly awarded in contract lawsuits and are always in the form of money
known as damages. The other type of remedy a court can order is a nonmonetary
remedy known as equitable relief, or an equitable remedy, awarded when there is
no suitable monetary remedy. The court can fashion such a remedy according to the
facts of the case.
Remedies for contractual breaches are not designed to punish the breaching
party. The non-breaching party is relieved of his obligations under the contract by
the other party's breach. Courts will award damages in the event of a breach, but
the intent is not to punish the breaching party, but rather to put the other party in
the position they would occupy if the contract had been fulfilled. In cases where
money is inadequate to compensate the aggrieved party, the court may award a
remedy which is known as specific performance to force the breaching party to
fulfill the terms of the contract. For instance, suppose plaintiff, Lucy, and
defendant, Zehmer, were sitting around before Christmas drinking together. They
had a conversation about
78 °——
 UNIT7 Contract Law

selling land for $50,000. The parties wrote up a contract to sell land on a napkin and signed by the

Defendant saying they would give up the land for 850,000. Plaintiff offered $5 to ensure the

bargain was binding and the Defendant refused. A waitress even testified that the Defendant said

he was joking. Lucy sued Zehmer for specific performance of a contract in which the Defendant

sold to Plaintiff a tract of land containing 471.6 acres for $50,000.

As for the performance of contracts, there are some exceptional doctrines. One is quasi-

contract which is a contract created by a court and promises fairness and prevents injustice. Based

on an equitable principle, the court is allowed to treat a transaction as a valid contract even when

one or more elements to the formation of the contract may be missing, if one party benefits

unjustly to the detriment of the other party, the court will compensate the party who did not

benefit, to avoid unjust enrichment. Another exception is the concept known as promissory

estoppel or detrimental reliance. Generally, a promise to make a gift can not be regarded as an

enforceable promise or a contract. However, if the donee justifiably relied on the promise and

conducted some acts based on the faith of the promise which would definitely cause detriments,

then the promisor may be estopped from reneging the promise.

(1663 words)

Notes

1. Uniform Commercial Code 《》, 简称 UCC, 亦称 U. C. C.。它是由美国统一州法全国委员会 (National

Conference of Commissioners onUniform State Laws) 和 美 国 法 学 会 (American Law

Institute) 联合组织制订的。法典的酝酿始自 1940 年，起草工作始于 1945 年 1 月 1 日。1951 年全国统一州法全国委员会

和美国法学会批准了法典的正式文本(official text)，并于 1952 《》 ⋯⋯被誉为英善法系

 2. Restatement(Second) of Contracts《》 1981 年由美国法学会编纂出版，共 16
章，385 条。

I. Reading Comprehension Questions.

1. The acceptance is the response by the of an intent to contract.
A. offer to consideration
B. offeree to offeror
C. offeror to offeree
D. consideration to offer
2. Which of the following cannot be genuinely called a law?
A. the Uniform Commercial Code.
B. the Contract law.
C. the Restatement Second of Contracts.
D. the Commercial law.
3. Which of the following constitutes a breach of contract?
A. When the party or parties fail to perform the contractual obligations in a satisfactory
manner with a legitimate legal excuse.
B. When the party or parties fail to perform the contractual obligations in a satisfactory
manner with a recoverable legal excuse.
C. When the party or parties fail to perform the contractual obligations in a satisfactory
manner without a recoverable legal excuse.
D. When the party or parties fail to perform the contractual obligations in a satisfactory
manner without a legitimate legal excuse.
4. According to the article, a contract may be void, voidable or unenforceable,EXCEPT it is
.
A. the one made by minors
B. the one made in written forms
C. the one concerning the payment of a gambling debt
D. the one signed by parties with mental disorders
5. If the non-breaching party believes that the other party will not perform its obligations
by the words and conduct of the other party, the non-breaching party

80 °——
 UNIT 7 Contract Law

may NOT .

A. buy substitute in good faith and without unreasonable delay

B. bring an action for breach

C. substitute performance with another party

D. keep waiting for the performance

6. In the commercial transaction where the controversial issue exists, the injured party

may bring the case to court, and depends upon the kind of injury suffered.

A. the legal remedy granted

B. the legal remedy or equitable remedy granted

C. the equitable remedy granted

D. the monetary rewards granted

II. True or False Judgment.

1. Consideration is an essential element for a legally enforceable contract in common

law.

2. A contract may be void, that is, no contract exists at all.

3. Insolvency or financial ability is a signal of anticipatory breach.

4. A lawsuit for breach of contract is a criminal charge.

5. A legal remedy is a monetary reward that the party can claim for the loss suffered as

a result of the other party's failure to perform contractual obligations.

Text B

Implied Terms in British Contract Law System

In the U. K. , contractual agreement has traditionally been analysed in terms of offer and

acceptance. One party, the offeror, makes an offer which once accepted by another party, the

offeree, creates a binding contract. Key concepts that you need to familiarise yourself with in

relation to offer and acceptance include the distinction between an offer and an invitation to

treat—— you need to be able to identify specific examples of where an offer or an invitation

to treat exists. Also it is important to know the difference between bilateral and unilateral

contracts. The case of Carlill v. Carbolic