法律語(yǔ)言的語(yǔ)言特征及其翻譯原則(外文翻譯資料)

Statutes and contracts: An analysis of legal speech acts in

the English language of the law

The Aarhus School of Business, Department of English, Fuglesangs All~ 4, DK-8210

Aarhus V, Denmark

Abstract

This paper is concerned with the language ud in legal speech acts in legislative texts

and contracts in the field of English Contract Law. The central objects of study are

regulative functions with a particular view to establishing realization patterns of the

rhetorical functions of directive and commissive acts. The findings show that the

language of the law characteris-tically lects patterns of regulatives distinct from, for

example, the patterns typically lected in everyday conversational English. The

characteristics of the language of the law can be interpreted within the adherence to legal

institutions, as well as in terms of the face redress required by the socio-pragmatic

situation.

1. Background

The field of legal language within the written medium is unique with regard to

distinctive lexical features, such as technical terms, archaic expressions, etc., and it

is renowned for its syntactic complexity, which has given ri to a number of stud-

ies of the aspects (e, e.g. Danet, 1985: 278-287). However, with the exception

of a few studies (e.g. Kurzon, 1986; Werther and Helmern, 1989), little attention

has been given to pragmatics and politeness in written legal discour. In the field of

pragmatics (including work on politeness phenomena), rearch has been concerned

primarily with oral discour, often bad on non-quential hypo-thetical data, and very

few studies are concerned with pragmatics and politeness in written discour (e, e.g.

Myers, 1989; Pilegaard, 1990). This paper prents a pragmatic study of a highly

specialized discour, viz. the language of authentic legislative texts and contracts, which

are analyzed for socio-pragmatic occurrence and pragmalinguistic realization of

regulative acts. Politeness is discusd within a consideration of the imposition of

regulative acts. This rearch has been financed partly by The Danish Rearch Council

for the Humanities and I would like to express my gratitude for their support. The article

is bad on my findings published in

preliminary versions as Trosborg (1991) and Blom and Trosborg (1992). tionship which

exists between the legislative power and the citizens, in which ca the former has the

authority to make rules for citizens to obey in order to maintain

law and order. An empirical question to be answered in this connection is whether this

difference in authority results in a difference, for example in directness levels, between

the two kinds of the law, i.e. between the language ud in legislation compared to the

lan-guage employed in private law (contracts and deeds).

Commission shall be paid on a quarterly basis and shall be bad on the previous quarter's

nett sales. (4-001 )

Employees shall work such overtime as the Company from time to time thinks necessary

according to the needs of its business. (4-014)

As in (4-001), the illocution is frequently constructed by the application of pas-sivization

involving agent suppression, and/or by the u of non-human subject. Tho are

prominent features of the legal register, and may be explained in terms of

face redress in order to reduce the face-threat involved in issuing a directive.

4.1.2. Prohibitions

In the regulation of behaviour by means of prohibitions, the modal shall is ud

almost exclusively (6.0% out of 6.8% of the strategies obrved):

the Reprentative shall not be entitled to enter into any contract or obligation on behalf

of the Company without the express written connt of the Company being first obtained.

(4-016)

Nothing in this Clau shall confer any right upon the Distributor to return Products

purchad by it pur-suant hereto or to refu or delay payment for them. (4-068)

The officer shall have no entitlement to any further period of holiday with or without

remuneration unless expressly agreed between the company and the officer. (4-006)

The three examples reflect some of the different types of negation which were men-

tioned in 2.2.1.2.

4.2. Rights

4.2,1. Permission

In contracts, a symmetrical relation holds between the two parties, either of which

is able to grant permission to the other party:

The Hirer may determine the hiring at any time by giving one month's previous notice in

writing expir-ing on one of the days appointed for payment of rent (4-015)

The Owner hereby grants to the Distributor [...] the sole and exclusive right to licence,

sub-licence and generally to market, distribute and support the Software (4-047)

The company hereby gives the officer permission to reside with his wife and children in

the dwelling-hou and premis [...] as the company's reprentative (4-006)

Statements of permission amounted to 5.8% of the total number of strategies.

4.2.2. Assignment of benefit~liability

The examples below are linguistic manifestations of the subcategories (i) assign-

ment of benefits, (ii) negated assignment of benefits, (iii) limitation of liability, and

(iv) negated limitation of liability, respectively:

the Company shall have power [...] to carry on its business alone or in association with

any one or more persons (whether natural or legal) or by any one or more subsidiary

companies (4-026)

The duty to disclo contained in this clau shall not impo on either party any

obligation to develop any such modification or improvement (4-027)

The Carrier shall be relieved of its obligation to perform the Contract to the extent that the

performance thereof is prevented by failure of the Trader (4-038)

no liability whatsoever shall be accepted by the Contractor for any alterations or

additions carried out in contravention of this Clau (4-059)

4.3. Constitutive rules

Constitutive rules establish the terms of the contract (for example, concerning lia-

bility), and spell out conditions relating to price, date, amount, etc. Furthermore, they

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define expressions and terms in the contract or supply information concerning appli-

cation of the terms. Examples typically involve lexical main verbs such as mean,

apply, include, exclude, and constructions with be + copula.

"ACCIDENT" includes exposure resulting from a mishap to a conveyance in which the

Assured is travelling (4-021)

The Agent is responsible for finding out and notifying in detail of Governmental and

other requirements in the Territory affecting this Agreement (4-018)

Future reference by the u of the modal shall may indicate a constitutive spelling

out a rule of the contract with a legal effect. ANY notice required to be rved upon the

Owner or Hirer hereunder shall be deemed to be duly rved 48 hours after posting if nt

by first class recorded delivery post (4-053)

4.4. Commissives

By making a promi a party to the contract commits him/herlf before the law.

Promis were typically expresd by means of performative verbs, such as agree,

undertake, acknowledge, warrant, accept:

The Supplier warrants to the Customer that the Equipment marketed by the Supplier is

believed to be free from defects of workmanship and materials (4-057)

The Licene acknowledges that the copyright in [...] all written, printed and

photographed matter sup-plied by the Grantor under this agreement [...] shall belong to

and remain vested in the Grantor (4-027)

The verbs promi and covenant were obrved but they were not in frequent u.

5. Discussing the findings

No detailed comparison of the u of regulatives in legislative texts compared with the

u in simple contracts will be provided. A few comments shall suffice. In both types of

legal documents, the category of direct directives dominates (leg-islation 47.6%, contracts

46.3%) with mandatory shall as the single most frequently ud sub-category (legislation

21.4%, contracts 38.0%). A higher number of consti-tutives in statutes (39.3%) compared

with contracts (22.7%) reflects the very func-tion in the former of establishing rules and

regulations. Commissives occurred only in contracts. A difference was obrved in the

u of explicit performatives in directives compared with commissives. Strategies of the

prototype I hereby order you to do X were rarely obrved, neither in statutes, nor in

contracts, whereas strategies of the type I hereby promi to do X amounted to 9.5% in

contracts. This difference can be explained with reference to the face-threat (e 1.2.1)

involved in the two acts. When trying explicitly to enforce the desired behaviour (which

is for the benefit of the nder and normally at the cost of the receiver) onto the receiver,

the nder openly threatens the requester's right to remain unimpeded. This explains why

explicit performative verbs are avoided. On the contrary, when issuing a promi, the

speaker commits him/herlf (and not someone el) to carry out the act specified in the

proposition, but does not impo on the other party. The promi is at the cost of the

nder and believed to be for the benefit of the receiver. For the reasons, a promi is

less face-threaten-ing to the receiver and the promi can be emphasized by being made

explicit by means of a performative verb.

When comparing the directives obrved in English Contract Law with directives

obrved in everyday conversations, the lection of directness levels differs markedly in

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the two domains (e Trosborg, 1991).5 The strategies ud most fre-quently in everyday

conversational English belong to the category of conventionally indirect directives, which

finding is in agreement with the findings of previous stud-ies (e.g. Ervin-Tripp, 1976

(American English), Blum-Kulka et al., 1989 (British and American English)). Querying

the hearer's ability/willingness to perform a given act (Could you spare me a

cigarette ?/Would you mind mailing this package for me?) amounts to 50.6% of the total

number of strategies obrved in conversational Eng-lish, while statements of the

speaker's wishes and desires (1 would like you to nd me a parts list) amount to 16.9%,

altogether comprising 67.5% of the total number of strategies. The strategies occur

neither in contract law, nor in contracts. The most frequent category in the language of the

law and in contracts is direct ordering (47.6%, 46.3%, respectively), which is the category

employed least fre-quently in the conversational data (9.6%). As for individual strategies,

statements

5 The data of comparisonderivefromdiadic conversationsbetweennative speakersof

Englishelicited by means of roleplay materialconstructedon the basis of

anticipatedillocutionaryactswith a directive function. The rolerelationshipsbetweenthe two

participantsvaried along two parameters: 'dominance' and 'social distance', and the

situationsinvolveda high 'degree of imposition'.

5.1. The u of politeness markers

In everyday conversations, the illocutionary force of directives is often hedged or

mitigated by the inclusion of politeness markers (I wonder if you could possibly ...).In the

language of the law, mitigators are almost abnt (unlike the language employed in

judgments and mediation, e Maley, this volume). However, one device, which has been

obrved to occur frequently, is defocalization of agent as well as patient. A preliminary

analysis has shown that only 19.4% of the obrved directives in contract law have a

human subject. Depersonalization is one way of mitigating the impact of a directive on

the addre, as in such sum shall be recov-erable~regard shall be had. Another reason

for the high number of directives employing a non-human subject is the fact that the law

operates by laying down its own constitutive rules with legal actants as subjects, such as

'this act', 'the provi-sions of this ction', 'a statutory instrument', 'the guarantee'. In

contracts, subjects pertaining to 'conditions of the contract', such as price, data, amount,

licen fees, etc. amount to 23.1% of the subjects employed in regulative acts, and as such

it is the cond largest subject category (only surpasd by 'collective nouns' (35.4%)).

Further discussion of this point is postponed to a future paper.

5.2. Concluding remarks

This paper has analyzed the occurrence of legal speech acts in English Contract Law. It

has pointed to declarations by means of the enactment formula as unique to legislative

texts. In contracts, explicit commissive acts occur as affirmative state-ments. Furthermore,

an analysis has been prented of directive acts obrved in the corpus revealing the

communicative acts of statements of obligation, statements of

prohibition, statements of permission (involving 'assignment of rights', 'limitation

of liability', and 'assignment of benefits'), as well as constitutive statements as directive

acts typical of the language of the law. When comparing the obrved directives to

directives obrved in everyday con-versations, it has been shown that the lection

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patterns, drawn from a continuum of directness levels, differ. Legislative texts and simple

contracts of English Contract Law show a predominance of direct strategies (statements

of obligation and prohibi-tion), whereas conversational English favours conventionally

indirect strategies. It was argued that this difference could be ascribed to the external

factors of the social situation, rather than to a difference in medium (written vs. spoken).

Further-more, it is not just a matter of the English language of the law being more direct

than conversational English (no imperatives were obrved); it is a question of lecting

strategies to express a specific communicative function in a particular nder/receiver

relationship within the considerations of the 'felicity conditions' of the act in question and

within the socio-pragmatic requirements of the situation.

法規(guī)與合同：法律語(yǔ)言行為在法律英語(yǔ)語(yǔ)言中的分析

[摘要]：本文研究的是英國(guó)合同法領(lǐng)域法律文本與合同中法律語(yǔ)言行為里語(yǔ)言的使用，研究的主

要內(nèi)容是用有特殊視角的規(guī)范功能來(lái)建立指示與命令行為的修飾功能的實(shí)現(xiàn)方式。結(jié)果顯示法

律語(yǔ)言多具有規(guī)范性特點(diǎn)，與日常對(duì)話中使用的英語(yǔ)有很大不同。法律語(yǔ)言的這種特點(diǎn)可以通

過(guò)與立法機(jī)關(guān)的傳承性以及社會(huì)語(yǔ)用學(xué)環(huán)境所要求的表面訴訟來(lái)理解。

1． 背景

書面形式的法律語(yǔ)言是非常具有特色的，因?yàn)樗哂胁煌瑢こ５脑~匯特征，如實(shí)用專業(yè)術(shù)

語(yǔ)，古體詞表達(dá)等，并且法律語(yǔ)言也引起復(fù)雜的句式特征而著稱，這種特點(diǎn)引起了對(duì)這方面的

諸多研究（見(jiàn)Danet,1985：278-287）。但是，除了很少的幾項(xiàng)研究之外（如Kurzon，1986;Werther

and Helmern,1989），很少有人將注意力投向書面法律語(yǔ)言的實(shí)用性和禮貌性。

在語(yǔ)用學(xué)領(lǐng)域（包括有關(guān)敬語(yǔ)現(xiàn)象的研究），研究的主要對(duì)象是口頭語(yǔ)言表達(dá)，它通常建立

與非連續(xù)的假設(shè)數(shù)據(jù)基礎(chǔ)之上，并且?guī)缀鯖](méi)有關(guān)于口頭語(yǔ)言的實(shí)用性和禮貌性的研究（見(jiàn)

Myers,1989;Dilegard,1990）。

本文將對(duì)高度專業(yè)化的語(yǔ)言進(jìn)行語(yǔ)用學(xué)研究，通過(guò)對(duì)真正法律文本和合同的語(yǔ)言分析來(lái)進(jìn)

行。其目的是為了語(yǔ)用學(xué)的使用及使用語(yǔ)言學(xué)的規(guī)范性行為的實(shí)現(xiàn)。在規(guī)范性行為的考慮范圍

之內(nèi)進(jìn)行禮貌性的討論。

3. 英國(guó)合同法中（法律、法規(guī)和規(guī)章）規(guī)范性語(yǔ)言的使用

法律文本的語(yǔ)料庫(kù)可以通過(guò)指示性行為來(lái)分析。很少有行為性的語(yǔ)言來(lái)顯示指示性的含義。

相反，使用情態(tài)動(dòng)詞則可以作為“含蓄的行為性語(yǔ)言”。結(jié)果（見(jiàn)表3）顯示指示性行為語(yǔ)言占

主導(dǎo)地位（類別四，義務(wù)性與禁止性規(guī)則，其比例為總數(shù)的47.6%）。不明顯的策略（類別一，

命令性規(guī)則）也經(jīng)常使用（39.3%）。在類別二中，傳統(tǒng)的非直接性策略中只有許可性語(yǔ)言被使

用（13.1%）。而提問(wèn)性準(zhǔn)備條件的策略（聽(tīng)者的能力/愿意程度）則一點(diǎn)也沒(méi)有出現(xiàn)。以說(shuō)話者

為基礎(chǔ)的表達(dá)愿望與渴求的策略也沒(méi)有觀察到。在下文中，我們將討論并列舉在法規(guī)中所觀察

到的表達(dá)指示性語(yǔ)氣的詞語(yǔ)的實(shí)現(xiàn)方式。

3.1指示性語(yǔ)氣

從表3我們可以清楚地看到，指示性語(yǔ)氣詞是英國(guó)合同法中最經(jīng)常使用的指示性詞語(yǔ)。表示

義務(wù)性規(guī)則的詞語(yǔ)占了34.5%，表達(dá)禁止性規(guī)則的詞語(yǔ)占了11.9%。祈使性語(yǔ)氣詞根本沒(méi)有，并

且只有幾個(gè)行為性詞語(yǔ)。

3.1.1行為性詞語(yǔ)

正如上文所述，開(kāi)始的立法原則是“行為性的”而法律文本本身的功能則是建議性的。除了

立法原則包括“立法”這個(gè)動(dòng)詞，行為性的動(dòng)詞repeal也是一個(gè)明確的行為性詞語(yǔ)：

The Infants Relief Act 1974 and the Betting and Loans (Infants) Act 1892 are hereby repealed (in

accordance with ction I of this Act) (Minor's Contracts Act 1987)

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1974年的嬰兒救濟(jì)法案和1892年的賭博和借款法案從此廢止（根據(jù)本法案第一條）（1987

年未成年人合同法）

在英國(guó)法規(guī)中。動(dòng)詞declare也可用作明確的行為性詞語(yǔ)，但是在現(xiàn)在的數(shù)據(jù)中，我們并沒(méi)

有看到這個(gè)詞的行為性用法。在美國(guó)法規(guī)中(kurzon,1986:24),動(dòng)詞authorize, entitle和amend 也

有行為性的用法.在英國(guó)法規(guī)中,這些動(dòng)詞并沒(méi)有以上的行為性用法,但是在具體法案的條文中它

們有命令性規(guī)則的用法.在行為性的表達(dá)方式中并未觀察到包含有命令的行為性動(dòng)詞(order,

commend, request等等).

3.1.2 義務(wù)性詞語(yǔ)

在法律文本中shall這個(gè)詞是一個(gè)典型的表達(dá)命令語(yǔ)氣的詞,占到了21.4%. shall用來(lái)表達(dá)命令

的非語(yǔ)言表達(dá)的力量.說(shuō)話人即立法者指示聽(tīng)話人去做某事.聽(tīng)話人別無(wú)選擇只能遵守:

Where a person has entered into a contract after misreprentation has been made to him by another

party thereto and as a result he has suffered loss, then, if the person making the misreprentation

would be so liable to damages in respect thereof had the misreprentation been made fraudulently,

that person shall be so liable not withstanding that the misreprention was not made fraudulently,

unless he proves that he had reasonable ground to believe and did believe up to the time the contract

was made that the facts reprented were true. (Misreprentation Act 1967)

合同一方基于另一方所造成的重大誤解而訂立合同,并因此而遭受損失,如果造成重大誤解對(duì)損

害結(jié)果負(fù)有責(zé)任并對(duì)其重大誤解行為有過(guò)錯(cuò),則應(yīng)承擔(dān)責(zé)任,除非其能證明自己有合理的理由相

信在合同訂立時(shí)所有事實(shí)都顯示的是真實(shí)的.(1967年重大誤解法案)

All sums paid or payable to any party in pursuance of the contract before the time when the parties

were so discharged (in this act referred to as 'the time of discharge'), shall in the ca of sums so paid,

be recoverable from him as money received by him for the u of the party by whom the sums were

paid, and, in the ca of sums so payable, cea to be so payable: ... (Law Reform (Frustrated

Contracts Act 1943)

在上述例子中,情態(tài)動(dòng)詞shall分別用來(lái)表示法庭和合同一方的義務(wù).注意后面的例子中不是以

人為主語(yǔ)(All sums …shall…be recoverable from him.)

情態(tài)動(dòng)詞shall還廣泛運(yùn)用于指示性詞語(yǔ)中表示規(guī)則,這樣有問(wèn)題的法律便可不用任何媒介而

得到實(shí)行:

Nothing in this ction shall be taken to prejudice any other remedy available to the plaintiff.

(Minors' Contracts Act 1987)

本節(jié)中的任何一條都不能用來(lái)使原告的任何救濟(jì)措施受到損害.(1987年未成年人合同法案)

類似于情態(tài)動(dòng)詞的to be to 在有人稱代詞時(shí)的使用:

Subject to this, it is for tho claiming that a party does not deal as consumer to show that he does not.

(Unfair Contract Terms Act 1977)

在這種情況下,是那些宣稱其未受到消費(fèi)者待遇的人顯示出他們不是消費(fèi)者.(1977年不平等

合同條款法案)

但是這個(gè)動(dòng)詞常與非擬人化的主語(yǔ)連用(參看shall在命令性陳述中與非人化主語(yǔ)連用):

……goods are to be regarded as 'in consumer u' when a person is using them, or has them in his

posssion for u, otherwi than exclusively for the person of a business; and ...

A contract term is to be taken - . (Unfair Contract Terms Act 1977)

當(dāng)有人使用商品時(shí),它們被看作是”顧客的需要”,或者作為其財(cái)產(chǎn)而使用,而不是由經(jīng)營(yíng)商品的

人所獨(dú)有……

合同條款將……(1977年不平等合同條款法案)

在法律文本外常用來(lái)表達(dá)義務(wù)的情態(tài)動(dòng)詞must和have to 則很少使用.事實(shí)上沒(méi)有含有must

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的指示性詞語(yǔ),have to 也只有在下面與”違約后果”有關(guān)的例子中使用:

Where for reliance upon it a contract term has to satisfy the requirement of reasonableness, it may be

found to do so ... (Unfair Contract Terms Act 1977)

合同條款必須滿足合理性的要求,可能會(huì)發(fā)現(xiàn)……(1977年不平等合同條款法案)

情態(tài)動(dòng)詞ought to 和should也很少用作表示指示性語(yǔ)氣詞,這可以通過(guò)表達(dá)義務(wù)的”弱語(yǔ)氣”

來(lái)理解:

In relation to a notice (not being a notice having contractual effect), the requirement of reasonableness

under this Act is that it should be fair and reasonable to allow reliance on it, having regard to all the

circumstances obtaining when the liability aro or (but for the notice) would have arin. (Unfair

Contract Terms Act 1977)

道德責(zé)任,而非法律義務(wù),通常是用上述兩個(gè)情態(tài)動(dòng)詞來(lái)表達(dá)的.過(guò)去時(shí)情態(tài)動(dòng)詞是典型的用來(lái)

表示某種行為的具體條件.比較下列例子中shall表示義務(wù)與could, should和would的用法:

Where by reference to a contract term or notice a person eks to restrict liability to a specified sum of

money, and the question aris (under this or any other Act) whether the term or notice satisfies the

requirement of reasonableness, regard shall be had in particular (but without prejudice to subction (2)

above in the ca of contract terms) to - (a) the resources which he could expect to be available to him

for the purpo of meeting the liability should it ari; and In a ca where - ... a person is not

precluded by this Act from excluding or restricting liability for loss or damage, being loss or damage

for which the provisions of the Convention would, if they had the force of law in relation to the

contract, impo liability on him. (Unfair Contract Terms Act 1977)

3.1.3 禁止性規(guī)則

表示義務(wù)的條款外,禁止性規(guī)則也可以表示行為的規(guī)范性.shall not和非人稱主語(yǔ)連用表示的

禁止性規(guī)則.如下面與疏忽責(zé)任有關(guān)的法規(guī)所示:

The following enactments shall not apply to any contract made by a minor after the commencement of

this Act - ... Where - ... the guarantee shall not for that reason alone be unenforceable against the

guarantor ... (Unfair Contract Terms Act 1977)

或用來(lái)強(qiáng)調(diào)一個(gè)人稱主語(yǔ):

In considering whether any sum ought to be recovered or retained under the foregoing provisions by

any party to the contract, the court shall not take into account any sums which ... (Law Reform

(Frustrated Contracts) Act 1943)

情態(tài)動(dòng)詞may是典型的用來(lái)表示許可的詞語(yǔ),表明法人與自然人的權(quán)利(見(jiàn)下文). 而情態(tài)動(dòng)詞

can則最常用用于否定式,表明不會(huì)發(fā)生的事件.當(dāng)用來(lái)表示行為規(guī)范時(shí),也常用這些詞:

A person dealing as consumer cannot by reference to any contract term be made to indemnify another

person (whether a party to the contract or not) in respect of liability that may be incurred by the other

for negligence or breach of contract, except in so far as the contract term satisfies the requirement of

reasonableness. (Unfair Contract Terms Act 1977)

只有在一些案例中才會(huì)明確提到合同當(dāng)事人雙方.在法規(guī)的其他例子中,立法上常用被動(dòng)語(yǔ)態(tài)

來(lái)突出非人稱主語(yǔ),如下例中的”liability”:

Liability for breach of the obligations arising under ction 2 of the Supply of Goods and Services Act

1982 (implied terms about title etc. in certain contracts for the transfer of property in goods) cannot be

excluded or restricted by references to any such term. (Unfair Contract Terms Act 1977)

3.2 許可性條款

許可性條款通常由權(quán)威部門制定,通常是說(shuō)話者,即公布法令的人的語(yǔ)言行為.在立法中,立法

機(jī)關(guān)是權(quán)威的源泉,其許可當(dāng)事人去做某種行為,它并不命令其去做某種行為(如義務(wù)性規(guī)則那樣),

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但是給予其行為方向的指導(dǎo).許可性規(guī)則可用來(lái)賦予立法機(jī)關(guān)權(quán)利,如法院和仲裁機(jī)關(guān):

In estimating, for the purpos of the foregoing provisions of this ction, the amount of any expens

incurred by any party of the contract, the court may without prejudice to the generality of the said

provisions, include such sum as appears to be reasonable in respect of overhead expens and in

respect of ny work or rvices performed personally by the said party. (Law Reform (Frustrated

Contracts) Act 1943)

在下例中,注意行為要滿足的許多條件(where, if,ought to ,would)

Where a person has entered into a contract after a misreprentation has been made to him otherwi

than fraudently, and he would be entitled, by reason of the misreprentation, to rescind the contract,

then, if it is claimed, in any proceedings arising out of the contract, that the contract ought to be or laas

been rescinded the court or arbitrator may declare the contract subsisting and award damages in lieu of

rescission, if of opinion that it would be equitable to do so, having regard to the nature of the

misreprentation and the loss that would be caud by it if the contract were upheld, as well as to the

loss that rescission would cau to the other party. (Misreprentation Act 1967)

考慮下面一個(gè)有關(guān)授權(quán)立法的例子:

For the purpo of subction (3)(a), the values which shall be taken to be the official values in the

United Kingdom of the amounts (expresd in gold francs) by reference to which liability under the

provisions of the Convention is limited shall be such amounts in sterling as the Secretary of State may

from time to time by order made by statutory instrument specify. (Unfair Contract Terms Act 1977)

在下面許可性規(guī)則中,賦予了當(dāng)事人訂立合同的權(quán)利:

Cas where contracts need not be under al (1) Contracts may be made on behalf of any body

corporate, wherever incorporated, as follows: - (a) a contract which if made between private persons

would be by law required to be in writing, signed by the parties to be charged therewith may be made

on behalf of the body corporate in writing signed by any person acting under its authority, expresd or

implied, and

(b) a contract which if made between private persons would by law be valid although made by parol

only, and not reduced into writing, may be made by parol on behalf of the body corporate by any

person acting under its authority, expresd or implied. (Corporate Bodies' Contracts Act 1960)

許可性規(guī)則只占指示性規(guī)則總數(shù)量的13.1%.

3.3 命令性規(guī)則

不包括行為動(dòng)詞或模糊的表示行為動(dòng)詞的情態(tài)動(dòng)詞的條文可用來(lái)表示立法目的,法規(guī)中用來(lái)

定義或解釋詞組和短語(yǔ)的句子,或者用來(lái)提供使用法律規(guī)則的句子,或二者兼有之,是命令性規(guī)則

的一部分(參看Kurzon,1986:23),典型的例子是包含有非行為動(dòng)詞, 如to apply, to extend, to mean,

to effect等詞. 包含有impo, purport to, include, exclude, fall, within, come into force等詞的表述

也是命令性規(guī)則的一部分. 如以下的例子所示:

In the ca of both contract and tort, ctions 2 and 7 apply (except where the contrary is stated in

ction 6(4)) only to business liability, that is liability for breach of obligations or duties arising - ...

The liabilities referred to in this ction are not only the business liabilities defined by ction 1(3), but

also include tho arising under any contract of sale of goods or hire-purcha agreement. A person is

not bound by any contract term prejudicing or taking away rights of his which ari under, or in

connection with the performance of, another contract, so far as tho rights extend to the enforcement

of another liability which this Part of this Act prevents that other from excluding or restricting.

不含有行為動(dòng)詞標(biāo)記的(明確的或模糊的)命令性規(guī)則是最常用的方法(39.3%).

4. 英文合同中規(guī)范性條文的使用

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合同語(yǔ)料庫(kù)可通過(guò)規(guī)范性行為來(lái)分析.行為動(dòng)詞并不用來(lái)顯示指示性的力量.相反,情態(tài)動(dòng)詞

用作”模糊的行為動(dòng)詞”. 結(jié)果顯示(見(jiàn)表4), 指示性動(dòng)詞占主導(dǎo)地位(類別3, 表示義務(wù)與禁止的

陳述), 其占了總數(shù)的46.3%. 不明確的方法(類別1, 命令性規(guī)則) 也經(jīng)常使用(占 22.7%). 在類

別2中,傳統(tǒng)的非直接方法只能通過(guò)許可性陳述(5.8%)來(lái)表達(dá); 除此之外,還有”受益人轉(zhuǎn)

讓”(16.6%) 和”責(zé)任的否定局限性”(3.4%). 詢問(wèn)準(zhǔn)備性條款的方法(聽(tīng)者能力/意愿來(lái)進(jìn)行意愿的

行為)和”表達(dá)愿望與渴望的以說(shuō)話者為基礎(chǔ)的方法”卻很少出現(xiàn),盡管它們?cè)谌粘?duì)話中經(jīng)常發(fā)

生.(T rosborg, 1991)

委任性行為是通過(guò)清楚地表達(dá)承諾的行為動(dòng)詞來(lái)實(shí)現(xiàn)的(9.5%). 由模糊的行為動(dòng)詞表示的

義務(wù)是由占4%的情態(tài)動(dòng)詞will來(lái)實(shí)現(xiàn)的.

合同中所使用的方法下面一一舉出,由于類別與法規(guī)中所使用的有些重復(fù),就不再詳細(xì)的進(jìn)

行評(píng)述.

4.1 直接指示性詞語(yǔ)

從表4可以清楚的看出,直接性的表達(dá)方式 (類別2) 是英文合同中最經(jīng)常使用的指示性語(yǔ)

言.表示義務(wù)的陳述占了39.5%,表示禁止的陳述占了6.8%,祈使語(yǔ)氣和行為動(dòng)詞并未使用.

4.1.1 義務(wù)性詞語(yǔ)

在法律合同中為表示義務(wù),幾乎是獨(dú)一無(wú)二的使用情態(tài)動(dòng)詞shall(38.0%). Shall 用來(lái)表示命

令的非語(yǔ)氣力量. 說(shuō)話者,即合同一方,指示合同另一方去做某事. 通過(guò)簽署合同,聽(tīng)話者承擔(dān)了義

務(wù):

Commission shall be paid on a quarterly basis and shall be bad on the previous quarter's nett sales.

(4-001 )

Employees shall work such overtime as the Company from time to time thinks necessary according to

the needs of its business. (4-014)

如4-001所示,常使用被動(dòng)語(yǔ)態(tài)和/或使用非人稱主語(yǔ)來(lái)組織句子. 這些是法律術(shù)語(yǔ)的顯著特

點(diǎn),并可用表面糾正來(lái)解釋,以降低包含有指示性詞語(yǔ)的表面威脅.

4.1.2 禁止性規(guī)則

通過(guò)禁止性規(guī)則表示的行為規(guī)則,常使用的是情態(tài)動(dòng)詞shall(占所使用6.8%的方法中的

6.0%):

the Reprentative shall not be entitled to enter into any contract or obligation on behalf of the

Company without the express written connt of the Company being first obtained. (4-016)

Nothing in this Clau shall confer any right upon the Distributor to return Products purchad by it

pursuant hereto or to refu or delay payment for them. (4-068)

The officer shall have no entitlement to any further period of holiday with or without remuneration

unless expressly agreed between the company and the officer. (4-006)

這三個(gè)例子反映了2.2.1.2提到的三種不同否定方式.

4.2 權(quán)利

4.2.1 許可性規(guī)則

在合同中,兩個(gè)當(dāng)事人之間是一種對(duì)稱關(guān)系,其中任何一方都可向另一方做出許可:

The Hirer may determine the hiring at any time by giving one month's previous notice in writing

expiring on one of the days appointed for payment of rent (4-015)

The Owner hereby grants to the Distributor [...] the sole and exclusive right to licen, sub-licen and

generally to market, distribute and support the Software (4-047)

The company hereby gives the officer permission to reside with his wife and children in the dwelling

hou and premis [...] as the company's reprentative (4-006)

許可和陳述占據(jù)了總數(shù)的5.8%.

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4.2.2 利益/責(zé)任轉(zhuǎn)讓

下面的例子是小類別的語(yǔ)言學(xué)證明.分別市(1)利益轉(zhuǎn)讓; (2) 利益的否定轉(zhuǎn)讓; (3) 責(zé)任的有

限性; (4) 責(zé)任的否定有限性:

Company shall have power [...] to carry on its business alone or in association with any one or more

persons (whether natural or legal) or by any one or more subsidiary companies (4-026)

The duty to disclo contained in this clau shall not impo on either party any obligation to develop

any such modification or improvement (4-027)

The Carrier shall be relieved of its obligation to perform the Contract to the extent that the

performance thereof is prevented by failure of the Trader (4-038)

no liability whatsoever shall be accepted by the Contractor for any alterations or additions carried out

in contravention of this Clau (4-059)

4.3 命令性規(guī)則

命令性規(guī)則是合同條款的組成部分(例如,與責(zé)任有關(guān)) 并表明了與價(jià)格,日期,數(shù)量有關(guān)的條

件. 而且,它們定義了合同中的表述與條款或提供了適用這些條款的信息.

下列是包含有如mean,apply, include , exclude 等主要詞匯和 be+系詞的結(jié)構(gòu)的例子:

"ACCIDENT" includes exposure resulting from a mishap to a conveyance in which the Assured is

traveling (4-021)

The Agent is responsible for finding out and notifying in detail of Governmental and other

requirements in the Territory affecting this Agreement (4-018)

使用情態(tài)動(dòng)詞shall的進(jìn)一步參考可以顯示出具有法律效果的合同法規(guī)特點(diǎn):

ANY notice required to be rved upon the Owner or Hirer hereunder shall be deemed to be duly

rved 48 hours after posting if nt by first class recorded delivery post (4-053)

4.4 委任性規(guī)則

作承諾時(shí),合同一方使自己受法律的約束.通過(guò)像agree, undertake, acknowledge, warrant, accept

等行為動(dòng)詞可做出承諾:

The Supplier warrants to the Customer that the Equipment marketed by the Supplier is believed to be

free from defects of workmanship and materials (4-057)

The Licene acknowledges that the copyright in [...] all written, printed and photographed matter

supplied by the Grantor under this agreement [...] shall belong to and remain vested in the Grantor

(4-027)

Promi 和covenant 并不經(jīng)常使用.

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