合同解除、终止几种英文表达之辨析
2012-04-11 09:55阅读：
Termination, Cancellation,
Discharge, Rescind 辨析
Termination
refers to an ending, usually
before the end of the anticipated term of the
contract.
Termination may be by mutual
agreement or may be by exercise of one party of one of his remedies
due to the default of the other party.
Cancellation
occurs when either party puts
an end to the contract for breach by the other and its effect is
the same as that of 'termination 'except that the canceling party
also remains any remedy for breach of the whole contract or any
unperformed balance.
When it is said that a contract
is discharged, it is always meant that one or more of the
legal relations
of the parties have been terminated .the meaning that is most
commonly intended is that the legal duty of one of the parties has
been terminated .A party who is asserted to be under a legal duty
by virtue of his contract may reply that the duty has been
discharged by some factor that has occurred since the making of the
contract.
As for the rescind a
contract ,that is to say ,to abrogate a contract ,release the
parties from further obligations to each other and restore the
parties to the positions they would have occupied if the contract
had never been made .For instance ,in rescinding a sales contract
,any monies paid or goods received would usually be returned to
their original holders ,though the parties could agree otherwise
.
1. Terminate a contract
,名词形式 termination of contract
Black's Law
Dictionary解释说：
Termination refers to an
ending, usually before the end of the
anticipated预期的 term of the contract, which termination may be by mutual
agreement or may be by exercise of one party of one of his
remedies救济 due to the default of the other party.
Termination通常指合同在约定期满之前终止履行。该终止既可经双方同意而做出，也指一方因另一方违约而行使的一种救济权。
但是《美国统一商法典》却规定，“终止”是指合同方未违反合同约定而依法终止合同
（Under the Uniform
Commercial Code, 'termination' means legally ending a contract
without being broken by either side）
2. Cancel a
contract,
Black's Law
Dictionary解释说：
Cancellation occurs when either
party puts an end to the contract for breach by the other and its
effect is the same as that of 'termination' except that the
canceling party also retains any remedy救济
for breach of the whole
contract or any unperformed balance.
Cancel
指一方另因另一方违约而解除或取消合同，其效力与termination
（终止）一词几乎一致，不同点在于撤销一方仍有权对整个合同或合同中未履行部分主张救济。
3. Discharge a
contract
Steven H.
Gifis的“Law
Dictionary”解释说：
When it is said that a contract
is discharged, it always meant that one or more of the legal
relations of the parties have been terminated. The meaning that is
most commonly intended is that the legal duty of one of the parties
has been terminated. A party who is asserted 宣称
to be under a legal duty by
virtue of 优点his contract may reply that duty has been discharged by
some factor that has occurred since the making of the
contract.
Discharge a contract
意味着合同当事人的合同关系已经终止。他方在主张自己应履行因合同而发生的法定义务时可辩称，合同义务已因订立合之后发生的因素而解除。看来discharge a
contract多指合同关系的解除。
4. Rescind a
contract
Steven H. Gifis
的“Law
Dictionary”解释说：
To
abrogate废除 a contract, release the parties from further obligations to
each other and restore the parties to the positions they would have
occupied if the contract had never been made. For instance, in
rescinding 废除 a sales contract, any monies paid or goods received would
usually be returned to their original holders though the parties
could agree otherwise.
Rescind a
contract指取消合同，免除当事人之间合同义务，将当事人各自地位恢复到合同订立之前的状态。比如，解除买卖合同时，尽管当事人可另有约定，但通常会将支付的价款或收到的货物返还给原持有人。Rescind a contract
这种解除意味着将法事人关系恢复到合同成立之前的状态。
5．Revoke a contract
Black's Law
Dictionary解释说：to annul or make void by recalling or taking
back即以取消或撤回的方式废止或宣布无效。相比之下，revoke出于行为人的意愿意，即是行为人主动发出的行为。了解上述区别与联系，可避免对应单词的混用，实现术语的准确表达。
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