Contract In The Form Of Research

Up to date, the form that a contract may take has evolved from the effective form toprotective form. Studies on this evolvement process will help us to better understand thesignificance of the form to a contract. The contract forms used today are mainly characterized asprotective forms. When talking about the term "form", we always feel the absence of merits,however, its significance is by no means as simple as appeared in the modern law. A set of rulesmay not only be established on the contract form, but also impose substantial influence on theeffectiveness of a contract. Furthermore, when we keep tracing the history of the contract formand considering the long entanglement of the form with contracts, we will be able to better followthe evolvement of the connotation of contracts. Based on above consideration, this essaycentralizes its discussion on the contract form from the following two aspects, namely theevolution of forms from the effective forms to the protective forms, and the rules in relation to theprotective forms. The combination of the two aspects will help us to establish a complete theoryon forms.This essay is structured as follows:The first important target of the introduction part is to define the term "form". It tries toestablish that the distinction between general forms and special forms must be clear and the formsdiscussed in academy mainly refer to the special form. Furthermore, the shortcomings of existingstudies on forms in mainland China, the significance and contents of the present research as wellas the methodology adopted will also be addressed in this part.Chapter one will discuss the effective form. The effective form reflects some importantfeatures of the law in early days. It can be further classified into outside forms and inner forms.The outside form is the expression of juristic act, which is of ceremonious appearance at the verybeginning and establishes the characteristics of the forms by its extreme importance to the act. Theinner form indicates the types of act, which reflects the theory of early days that law determinesthe classification of contracts. The outside form and inner form are the fundamental/key stone togive binding effect to contracts during early days. They altogether show the simplicity, flexibilityand enforceability of the law of that time.Chapter two will address the evolvement from the effective form to the protective form. Thekey in this evolvement is the growing importance of will in the behavior. Factors attributing to thearising of will include modern ideological trend of freedom, the influence of religions, businessdevelopment and businessmen's practices. The basis for contract law unification had emerged andthe effective form lost its seat as the resource of the effectiveness of contracts and started tofunction in a contract as a tool to realize the value of legislators. In order to illustrate thisevolvement of the position of forms in the contract, this chapter takes "gift" as an example.Part three will provide a general introduction to the protective form, including the type, aim,establishment and the scope of effect of forms. Forms can be classified according to either theresult in substantive law or the types of expression. The aims of the forms are the grounds that theexistence of forms can be justified, however they are of little significance in theory. The aims ofthe forms can be differed according to the protection of general interests, or of the interests of theparties, or of the interests of one party and the interests of a third party. In the discussion of theestablishment of forms, the essay will summarize general features of the contracts requiringspecific forms by introducing such contracts of different jurisdictions. It will also point out that allspecific situations have to be considered by the legislators when formulating the formrequirements. The scope of effect of the form addresses such issues as which part of the contractneeds form, whether specific forms are required when the contract being modified or withdrawn,what kind of contents of a contract can be determined, in the common law system, by the oralevidence rule, which in nature is also a kind of form.Part four addresses breach of forms. The contract is usually resulted invalid should the formrequirement not be observed. However such invalidation will sometimes give rise to unfairnessand therefore shall be restricted. The restriction includes two kinds. Firstly, the legislationprovides explicitly that some contracts performed already can be exceptionally deemed effective,while this cannot become a general rule. Secondly, pursuant to the principles of good faith, thelimitation on invalidation shall be applied based on different situations and according to differenttypes of breach of forms. This chapter will also address the result and particularity of breach ofintentional forms.In conclusion, the author tries to answer the question that what kind of theory about form iscalled—rethinking of the Contract Law of PRC. Taking the contract law of RRC as an example,the author will point out the defects in the provisions of the forms and present suggestions forimprovement, which mainly includes three aspects, that the form shall act as a condition for takingeffect of the contract in stead of conclusion of the contract;that the rule of "performance makingup the defect of form" shall not be generally applied;that the provisions on legal form andintentional form shall be stipulated separately.