1、（原）金融专业英语（ FECT）中级法律模拟试卷 2及答案与解析 Question 1 1 List any 5 illegal contracts strictly so called. 2 Name 3 ways in which an offer of a contract will expire. 3 What is meant by past consideration? 4 What is meant by implied terms of a contract? 5 Name the types of actionable misrepresentation. 6 Name 2
2、equitable remedies at time of breach of contract by one party. 7 What is an inchoate instrument? 8 Who is the drawee of a cheque? 9 What type of indorsement is the following? “Pay John on his delivery of documents of title to Hong Kong Bank. Signed: Wang“ 10 Is “indirect injury“ a nuisance or trespa
3、ss? Question 2 11 A right in personam is a right against a particular person only. （ A）正确 （ B）错误 12 Easement is a right to use the adjacent land that belongs to another. （ A）正确 （ B）错误 13 Bills of lading are negotiable. （ A）正确 （ B）错误 14 A usance bill is a bill payable immediately. （ A）正确 （ B）错误 15 A
4、promissory note is an order, whereas a bill of exchange is a promise. （ A）正确 （ B）错误 16 The putting up of goods for sale by auction is an offer. （ A）正确 （ B）错误 17 An offer can not be made to the world at large. （ A）正确 （ B）错误 18 Slander is a kind of defamation in written form. （ A）正确 （ B）错误 19 Offers a
5、nd revocations are effective upon posting, but acceptances are effective upon receipt. （ A）正确 （ B）错误 20 Past consideration is not a good consideration for negotiable instruments. （ A）正确 （ B）错误 Question 3 21 Wong, the president of a corporation told Zheng that “if you work hard, and profit remains hi
6、gh, youll get a bonus, if management thinks its warranted.“ Profit remains high, but no bonus is paid. If Zheng sues, would a court enforce the promise? Question 4 22 Peter wants to buy a comer store. When negotiating in January, he was told by David, the owner of the store that the business of the
7、store was very good and the average net profit from the store was 100,000 per month for the last year. However, in March, a supermarket opened near the store and the business at the store became very slow. Then a contract for the sale of the store was signed between them, all the time David didnt me
8、ntion anything to Peter. Could Peter make a claim against David for misrepresentation. Advise Peter supported by cases. Question 5 23 Write short notes on: (a) What must the plaintiff prove in order to succeed in mi action of negligence? (b) Explain the defences available to the defendant in an acti
9、on based on tort. (c) Explain the rule established in Hedley Byrne (b) negligence. Question 8 26 Explain: (a) Acceptance of bills of exchange. (b) General acceptance. (c) Qualified acceptance. （原）金融专业英语（ FECT）中级法律模拟试卷 2答案与解析 Question 1 1 【正确答案】 Commit a crime, a tort or a fraud on a third party; are
10、 sexually immoral; are prejudicial to the public safety; are prejudicial to the administration of justice; tend to promote corruption in public life; are designed to defraud the revenue; are prohibited by statute; tend to defraud or deceive a third party. 2 【正确答案】 By revocation of the offeror; By re
11、jection of the offeree; By lapse of time of the offer. 3 【正确答案】 An act as consideration was performed before any promise of reward is called past consideration; It is not a valid consideration. 4 【正确答案】 Terms which are not expressly set out in contract; But which are implied in fact or law or by cus
12、tom. 5 【正确答案】 Fraudulent misrepresentation; Innocent or negligent misrepresentation. 6 【正确答案】 Specific performance; Injunction. 7 【正确答案】 An negotiable instrument which does not contain one or more elements required by law to constitute it. 8 【正确答案】 A bank. 9 【正确答案】 Conditional indorsement. 10 【正确 答案
13、】 A nuisance. Question 2 11 【正确答案】 A 12 【正确答案】 A 13 【正确答案】 B 【试题解析】 Bills of lading are not negotiable. 14 【正确答案】 B 【试题解析】 A usance bill is a bill payable at a future time. 15 【正确答案】 B 【试题解析】 A promissory note is a promise, whereas a bill of exchange is an order. 16 【正确答案】 B 【试题解析】 The putting up of
14、 goods for sale by auction is not an offer. 17 【正确答案】 B 【试题解析】 An offer can be made to the world at large. 18 【正确答案】 B 【试题解析】 Slander is a kind of defamation in transient form. 19 【正确答案】 B 【试题解析】 Offers and revocations are effective upon receipt, but acceptances are effective upon posting. 20 【正确答案】
15、 B 【试题解析】 Past consideration is a good consideration for negotiable instruments. Question 3 21 【正确答案】 Consideration is essential to formation of any contract. A contractual promise is only legally binding if it is made in return for another promise or an act. Consideration is either some detriment t
16、o the promisee or some benefit to the promisor. A mere moral obligation is insufficient. Consideration must be legally sufficient which is different form adequacy of consideration. Consideration is not sufficient where the act claimed to amount to consideration is one that the promisee is already bo
17、und to do. In Stilk v. Myrick, 1809, where a sea-captain promised to divide the wages of two deserting seamen among the remainder of the crew if they would work the ship home. It was held that there was no enforceable contract between the parties as the crew had done no more than they were already r
18、equired to perform as normal duty in sailing the ship home. Wong promised Zheng to pay him bonus if Zheng would work hard to keep the profit high. The consideration of such promise, following the legal principles of above-mentioned case, is one that the promisee is already bound to do. Zheng is unde
19、r an existing contractual duty already owed to Wong. The performance of a contractual duty already owed to the promisor is not sufficient. So the court will not enforce the promise as it is not supported by consideration. Question 4 22 【正确答案】 There are the factors that affect the validity of a contr
20、act, misrepresentation is one of them. A representation made by one party to another to induce him to enter a contract must be a positive and true statement of some existing facts or past events, otherwise, it shall constitute a misrepresentation, which is misleading and induces other to enter into
21、the contract, and may amount to invalidity of the contract. In With v.OFlanagan (1936), where the defendant, who wished to sell his practice, informed the plaintiff that the income from the practice was 2,000. Five months later when the contract was signed the income had fallen considerably due to t
22、he defendants illness and no mention of this fact was made to the plaintiff. The plaintiff claimed rescission of the contract. It was held that he could not rescind as there was misrepresentation. In Gordon v.Selico Co. Ltd.(1986), where a flat in a building which had been converted by a developer w
23、as taken by the plaintiff on a 99-year lease. Soon after he moved in, dry ret was discovered. It was held that deliberate concealment of the dry rot by the developer could amount to fraudulent misrepresentation, therefore, damages were awarded to the plaintiff. Its a general rule that mere silence d
24、oes not normally amount to representation as well as misrepresentation, except in the case where a statement, true when it is made, subsequently becomes false before the conclusion of the contract. Here the prior representation concerning the income of the store stated by David has become untrue at
25、the time the contract was signed, due to the opening of the supermarket. David, therefore, take the obligation to correct his former representation, and the silence here amounts to misrepresentation. Peter was induced by and relied on the misrepresentation and entered into the contract, thus he coul
26、d make a claim against David for misrepresentation. Question 5 23 【正确答案】 (a) As an independent and specific tort, negligence measures behaviour against an objective standard. The plaintiff must prove that: the defendant owed him a legal duty of care; the defendant was in a breach of that duty; and h
27、e has a suffered damage as a result of that breach. (b) Defendants defences Even if the plaintiff can prove all three elements of negligence, the defendant can establish defences to the plaintiffs claim contributory negligence voluntary assumption of risk on the part of the plaintiff the damage suff
28、ered by the plaintiff is too remote. (c) Hedley Byrne the defendant is aware of the plaintiffs reliance on his advice; the circumstances must be such that plaintiffs reliance is reasonable. The advice is given by professional advisers such as accountants, bankers, investment advisers, etc. It is imp
29、ortant to note that mere knowledge that the plaintiff will rely on the defendants advice or information is not sufficient; what matters is whether the defendant knows that the plaintiff will rely on the defendants advice or information for use in the plaintiffs transaction in contemplation. Question
30、 6 24 【正确答案】 (a) Section 29 of the Bills of Exchange Ordinance defines a holder in due course as a holder who has taken a bill, complete and regular on the face of it, under the following conditions, namely: that he became the holder of it before it was overdue, and without notice that it had been p
31、reviously dishonoured, if such was the fact; that he took the bill in good faith and for value, and that at the time the bill was negotiated to him he had no notice of any defect in the title of the person who negotiated it. (b) Section 38 of the Bills of Exchange Ordinance provides that holder in d
32、ue course can: sue on the bill in his own name. hold the bill free from any defect of title of prior parties, as well as from mere personal defences available to prior parties among themselves, and may enforce payment against all parties liable on the bill. get a good and complete title to the bill
33、after negotiation; and get a valid discharge for the bill after payment. Section 20 (2) of Bills of Exchange Ordinance provides that if an inchoate instrument after completion is negotiated to a holder in due course, it shall be valid and enforceable. Section 64 (1) of Bills of Exchange Ordinance pr
34、ovides that alteration of a bill does not affect a holder in due course. Where the alteration is not apparent, he may enforce payment according to its “original tenor“. Question 7 25 【正确答案】 (a) Vicarious liability is liability for the tort of another. The most common situation for vicarious is that
35、the company should be responsible for behaviors or actions of the employee or servant in the course of his/her employment. It is a type of strict liability, i.e. once the elements of the relationship have been established, the person to whom vicarious liability is fixed cannot avoid liability, by sh
36、owing a complete absence of negligence on that persons part, or by establishing any defence. (b) Negligence is an independent and specific tort which measures behaviour against an objective standard, involves a “triple concept“. To establish negligence, the plaintiff must prove that: The defendant o
37、wed him a legal duty of care; the defendant was in a breach of that duty; and he has suffered damages as a result of that breach. Question 8 26 【正确答案】 (a) Section 17 of the Bills of Exchange Ordinance stipulates that: the acceptance of a bill is the signification by the drawee of his assent to the o
38、rder of the drawer. an acceptance is invalid unless it complies with the following conditions: (i) it must be written on the bill and be signed by the drawee. The mere signature of the drawee, without additional words, is sufficient. (ii) it must not express that the drawee will perform his promise
39、by any other means than the payment of money. (b) A general acceptance assents without qualification to the order of the drawer. (c) A qualified acceptance in express terms varies the effect of the bill as drawn. Qualified acceptance may be: conditional, which makes payment by the acceptor dependent on the fulfillment of a condition therein stated; partial, which pays part only of the amount for which the bill is drawn. qualified as to time; local, which pays only at a particular specified place; the acceptance of some one or more of the drawees, but not of all.
