THE LAW OF THIRD-PARTY BENEFICIARIE（extract）
Background:
When can a third party collect damages on a contract formed by two other people? At first blush, it is tempting to answer “never”—that is, legal liability for broken contracts should extend only to a direct counterparty. If Abe promises to pay Beth $50 to mow Camrsquo;s lawn, then Abe, not Cam, should sue Beth when she fails to perform.21 After all, how can an outsider, even one who might suffer greatly from breach, possibly bring a claim? He had no say in forming the contract; why should he have rights? The aggrieved third party might, of course, encourage the original promisee to pursue the claim, especially if the promisee clearly indicated a desire to benefit the third party (and therefore presumably maintains some interest in seeing the performance take place) . But, historically, contract law would not sanction direct action by an independent third party against the breaching promisor.
Agency law offered a partial workaround to this problem, as contracts made between an agent and a third party (under authority) bind the principal.23 But this requires a heightened legal status—where the agent agrees to act for the benefit of the principal and subject to her control—that analytically links the principal and third party in privity.24 Further, the ongoing legal responsibilities of the three parties differ greatly in the agency context, as the agent is typically excused from any contractual liability and therefore drops out of the picture.25 This is simply a representative arrangement, and most adversely affected contractual bystanders—such as Cam in the example above—would not enjoy such a relationship and would therefore receive no help from agency law.
Over time, contract law began to change, in fits and starts, to permit third-party beneficiaries to recover damages directly, in certain contexts, for a promisorrsquo;s breach. The historical development of this rule is debated in the literature. Anthony Waters argues that the now-famous case of Lawrence v. Fox26 “defied the prevailing rules of contractual liability” and “gave us the initial formulation of the third party beneficiary rule.”27 Melvin Eisenberg describes the evolution of the rule as a more gradual affair, emphasizing both earlier cases in English and American law that paved the way for Lawrence28 and the relative unimportance of Lawrence in comparison to the legal developments that followed.29 Certainly the early 1900s were a time of great balkanization for third-party -beneficiary rights. Some jurisdictions resisted the rule entirely,30 following the formalist logic of Langdell31 and Justice Holmes.32 Others allowed claims only in a limited number of difficult-to-distinguish contexts.33 And still others were more permissive
Given the lack of clarity in this area for the first few decades of the 20th century, the Restatement (First) of Contracts, completed in 1932, sought to synthesize the treatment of third-party beneficiaries into manageable distinctions.35 Accordingly, it divided potential third-party claimants into three groups: creditor beneficiaries, donee beneficiaries, and incidental beneficiaries.36 The first two groups had legally enforceable rights, while the latter group did not. The borders between each group eluded precise definition, and as we will see, the distinctions were ultimately abandoned.37 But a creditor–beneficiary relationship was generally understood to arise when a promisee sought to elicit a vow from the promisor to repay an obligation that the promisee owed to the third party.38 For example, if Abe happened to owe Cam $50 from prior dealings, then Abe might arrange for a “ring-around-the-rosie” form of repayment, instead of paying Cam directly, by entering into the lawn mowing transaction with Beth that is described above.
By contrast, a donee–beneficiary relationship arose when, in the words of Restatement (First), “it appears from the terms of the promise in view of the accompanying circumstances that the purpose of the promisee in obtaining the promise of . . . performance thereof is [(i)] to make a gift to the beneficiary or [(ii)] to confer upon him a right against the promisor.”39 In other words, Cam might be a donee–beneficiary under the initial deal between Abe and Beth, even without a prior debt from Abe to Cam, as long as the contract clearly spelled out an intention for Abe to convey a gift of the performance to Cam. Likewise, even if there were no explicit gift statement, Cam might enjoy legal standing if Abersquo;s bargain with Beth could somehow be understood as conveying a right for Cam to sue in the event of breach
It takes some work to distinguish between these two types of donee– beneficiaries, but analytically it should indeed be possible for a promisee to seek to confer enforcement rights to a third party, even apart from any desire to make a gift of the actual performance. For example, a promisee might wish to grant enforcement rights to an outsider, for various strategic reasons,40 even when the subject of the contractual performance does not directly or primarily benefit that third party. The much harder question, of course, is whether this desire for outside enforcement rights actually accompanies any given exchange.
The third and final category, that of an incidental beneficiary, purportedly encompassed all other third parties.41 For example, Camrsquo;s neighbor Dawn might also be adversely impacted by Bethrsquo;s failure to mow Camrsquo;s lawn (because she has to look at the unsightly view or deal with weeds that blow over from Camrsquo;s yard). But Dawn would only be considered an incidental beneficiary of the deal between Abe and Beth, and she could not sue Beth for breach.42 Even a party suffering more explicit pecuniary harm from the breach—such as the service station forfeiting the sale of gasoline that Beth would have
全文共15367字，剩余内容已隐藏，支付完成后下载完整资料
THE LAW OF THIRD-PARTY BENEFICIARIE（extract）
Background:
When can a third party collect damages on a contract formed by two other people? At first blush, it is tempting to answer “never”—that is, legal liability for broken contracts should extend only to a direct counterparty. If Abe promises to pay Beth $50 to mow Camrsquo;s lawn, then Abe, not Cam, should sue Beth when she fails to perform.21 After all, how can an outsider, even one who might suffer greatly from breach, possibly bring a claim? He had no say in forming the contract; why should he have rights? The aggrieved third party might, of course, encourage the original promisee to pursue the claim, especially if the promisee clearly indicated a desire to benefit the third party (and therefore presumably maintains some interest in seeing the performance take place) . But, historically, contract law would not sanction direct action by an independent third party against the breaching promisor.
第三方什么时候可以对另外两个人签订的合同收取损害赔偿金？乍一看，回答“从不”很有可能——也就是说，违约的法律责任应该只延伸到直接的交易对方。如果亚伯答应付给贝丝50美元去修剪卡姆的草坪，那么亚伯，而不是卡姆，应该在贝丝不履行义务时起诉她。毕竟，一个局外人，即使是一个可能遭受严重违约的人，怎么可能提出索赔呢？他在订立合同时没有发言权，那么为什么他应该享有权利？当然，受害的第三方可能会鼓励原受诺人继续主张权利，特别是如果受诺人明确表示希望使第三方受益(大概是因为其对该履行行为也有一定利益牵扯)。但是，从历史上看，合同法不会认可独立第三方对违约允诺人采取的直接行为。
Agency law offered a partial workaround to this problem, as contracts made between an agent and a third party (under authority) bind the principal.23 But this requires a heightened legal status—where the agent agrees to act for the benefit of the principal and subject to her control—that analytically links the principal and third party in privity.24 Further, the ongoing legal responsibilities of the three parties differ greatly in the agency context, as the agent is typically excused from any contractual liability and therefore drops out of the picture.25 This is simply a representative arrangement, and most adversely affected contractual bystanders—such as Cam in the example above—would not enjoy such a relationship and would therefore receive no help from agency law.
代理法为这个问题提供了一个不完全的解决办法，因为代理人和第三方(根据授权)之间订立的合同对委托人具有约束力。但这要求一个提高的法律地位——即代理人同意为委托人的利益行事并受委托人的控制——在逻辑上把委托人和第三方私下地联系在一起。此外，目前的三方法律责任在代理背景下差异很大， 因为代理人通常被免除任何合同责任，从而被排除在外。这仅仅是一种代表性的方法，而受到最不利影响的合同旁观者——例如上面例子中的卡姆——将不会享有这种关系，因此也不会从代理法中得到任何帮助。
Over time, contract law began to change, in fits and starts, to permit third-party beneficiaries to recover damages directly, in certain contexts, for a promisorrsquo;s breach. The historical development of this rule is debated in the literature. Anthony Waters argues that the now-famous case of Lawrence v. Fox26 “defied the prevailing rules of contractual liability” and “gave us the initial formulation of the third party beneficiary rule.”27 Melvin Eisenberg describes the evolution of the rule as a more gradual affair, emphasizing both earlier cases in English and American law that paved the way for Lawrence28 and the relative unimportance of Lawrence in comparison to the legal developments that followed.29 Certainly the early 1900s were a time of great balkanization for third-party -beneficiary rights. Some jurisdictions resisted the rule entirely,30 following the formalist logic of Langdell31 and Justice Holmes.32 Others allowed claims only in a limited number of difficult-to-distinguish contexts.33 And still others were more permissive
随着时间的推移，合同法开始时断时续地发生变化，允许第三方受益人在某些情况下直接因允诺人违约而获得损害赔偿。这一规则的历史性发展在文献中存有争议。安东尼·沃特斯认为，现在著名的劳伦斯诉福克斯案“违背了现行的合同责任规则”，并“为我们提供了第三方受益人规则的初步表述”梅尔文·艾森伯格将这一规则的演变描述为一个更加渐进的过程，强调了为劳伦斯案铺平道路的英美法律中的早期案例的重要性，以及劳伦斯案与随后的法律发展相比的相对的不重要性。当然，20世纪初是第三方受益人权利高度巴尔干化的时代。一些司法管辖区遵循朗德尔和霍姆斯法官的形式主义逻辑，完全抵制这一规则。其他司法管辖区只允许在有限的难以区分的情况下提出索赔。还有一些司法管辖区更为宽松
Given the lack of clarity in this area for the first few decades of the 20th century, the Restatement (First) of Contracts, completed in 1932, sought to synthesize the treatment of third-party beneficiaries into manageable distinctions.35 Accordingly, it divided potential third-party claimants into three groups: creditor beneficiaries, donee beneficiaries, and incidental beneficiaries.36 The first two groups had legally enforceable rights, while the latter group did not. The borders between each group eluded precise definition, and as we will see, the distinctions were ultimately abandoned.37 But a creditor–beneficiary relationship was generally understood to arise when a promisee sought to elicit a vow from the promisor to repay an obligation that the promisee owed to the third party.38 For example, if Abe happened to owe Cam $50 from prior dealings, then Abe might arrange for a “ring-around-the-rosie” form of repayment, instead of paying Cam directly, by entering into the lawn mowing transaction with Beth that is described above.
鉴于20世纪前几十年在这一领域缺乏明确性，1932年完成的《第一次合同法重述》试图将第三方受益人的待遇总结成易于管理的不同种类。因此，它将潜在的第三方索赔人分为三类:债权人受益人、受赠人受益人和附带受益人。前两类人拥有法律上可强制执行的权利，而后一类人则没有。每一组之间的界限都没有精确的定义，正如我们将看到的那样，这种区别最终被放弃了。但是债权人和受益人之间的关系通常被理解为当受诺人试图从允诺人那里获得一个誓言来偿还受诺人欠第三方的债务时产生的。例如，如果亚伯碰巧从先前的交易中欠卡姆50美元，那么亚伯可以通过与贝丝进行上述割草交易来安排一种“环绕罗西”形式的偿还，而不是直接付给卡姆。
By contrast, a donee–beneficiary relationship arose when, in the words of Restatement (First), “it appears from the terms of the promise in view of the accompanying circumstances that the purpose of the promisee in obtaining the promise of . . . performance thereof is [(i)] to make a gift to the beneficiary or [(ii)] to confer upon him a right against the promisor.”39 In other words, Cam might be a donee–beneficiary under the initial deal between Abe and Beth, even without a prior debt from Abe to Cam, as long as the contract clearly spelled out an intention for Abe to convey a gift of the performance to Cam. Likewise, even if there were no explicit gift statement, Cam might enjoy legal standing if Abersquo;s bargain with Beth could somehow be understood as conveying a right for Cam to sue in the event of breach
相比之下，根据《第一次重述》的表述，当“鉴于伴随的情形，从允诺的条款看，受允诺人获得允诺的目的是履行该义务而向受益人或授予他对抗允诺人的权利
全文共19670字，剩余内容已隐藏，支付完成后下载完整资料
资料编号：[432]
以上是毕业论文外文翻译，课题毕业论文、任务书、文献综述、开题报告、程序设计、图纸设计等资料可联系客服协助查找。
