Seeking Elapsed Contractual Freedom

The first chapter of the thesis reviews the theory on freedom of contract. The theory on freedom of contract which originated in the times of Roman law has been changed with social changes. As the society experienced the evolution from statue to contract, freedom of contract was established as the basic principle of contract law in the 19th century and reached its peak. Modern theory on freedom of contract has come into being and developed. From the end of the 19th century, substantial changes occurred in social economics, politics and thoughts; hence in some countries some mandatory rules are established in commercial legislation in order to limit the freedom of contract. This means the traditional theory on freedom of contract cannot reasonably explain the occurrence and consequence civil and commercial activities limited by such mandatory rules. Therefore, scholars see this as the decline in the theory on freedom of contract. After the World War Two, the relationship between liberty and justice, fairness and effectiveness, individual interest and social interest must be reconsidered in civil and commercial legislation, and the theory on freedom of contract was questioned closely on the location of its values. Generally speaking, since the freedom of contract has been levied many limits, it is flowed away in many areas in civil and commercial law. At the beginning of the 21st century, with economic globalization, trade liberalization and social harmonization, the theory on freedom of contract should progress with the time and find its new dynamic resources as well as necessary and reasonable theoretical reconstruction in reflection and question, thus make it a good location.The second chapter of the thesis expounds the theory on freedom of contract and the development of law on carriage of goods by sea.During the course of law on carriage of goods by sea in its progress, the"samsara"of freedom of contract is clearly reflected. As a branch of maritime law, the thesis thinks, carriage of goods by sea can be divided into public carriage of goods by sea and private carriage of goods by sea by the criteria of whether public laws of countries converged with carriage contracts, whether a type of service of carriage of goods belongs to public good is provided for unspecific merchant. Private carriage of goods by sea is regulated by optional laws of the countries, the parties can enter contracts with their own will, and they have comparatively adequate freedom of contract. The thesis defines the law on carriage of goods by sea as its narrow sensen that merely regulates the relationships of liner shipping. However, after the rise of bills of lading, because some big ship-owners abuse freedom of contract, arbitrarily add exemption clause to bills of lading and therefore set obstacles to the circulation of bills of lading, influenced healthy development maritime transportation. In this background, many countries provided mandatory rules to limit ship owner's the freedom of contract. However, to regulate and limit freedom of contract through domestic law cannot avoid conflict of laws, and would barrier the development of international trade. Thereupon, uniform law on carriage of goods by sea has being developed. From the beginning of the 20th century, the uniform law on carriage of goods by sea in order to balance the interest of the shippers and merchants as well as the freedom of contract and justice in contract encountered a great breakthrough, the two rules system regulating transportation by bills of lading are specific examples. We can say that the development of uniform law on carriage of goods by sea reflected the interest claim from merchants to limit the freedom of shippers and to exhibit in the unification of legislation. From Hague Rules, Visby Rule to Hamburg Rules, freedom of contract of the shippers is limited to the extreme. From another side, we can say there was an"invisible hand"to direct the balance in the market for the amount of carriage and capability of carriage. The ability to set price by shippers and merchant is adequate, so the legislation effectively suppressed the abuse of freedom of contract by shippers owning to its status in carriage, and the justice in contract was back. In the progress of gaming, different influences to the law on carriage of goods by sea are levied by the two main legal families. The reason that freedom of contract influences the clauses of bill of lading is the creditor's rights function of bill of lading.The third chapter of the thesis analyses the limits of law on carriage of goods by sea on freedom of contract. The limits mainly represent in the limits to freedom of contract imposed by mandatory rules and the limits to the freedom of the content of the contract and cancel the contract imposed by law on carriage of goods by sea. Law on carriage of goods by sea limits public carrier's freedom of concluding a contract by mandatory rules. The system values of these limits are to extend contractual justice, adjust public ocean shipping resource and adequately satisfy the needs of international trade.Mandatory rules on the content of the contract include the minimum obligations and liabilities of carriers, the period of responsibility and the quota of responsibility, among which the most important is the minimum obligations of carriers. In order to adjust the shift of situation, the laws of many countries set up a system of cancelling a contract in order that the parties could go back to their original position before the signing of the contract when the contract cannot achieve its aim. Many countries have specific rules on the law on carriage of goods by sea as a special law regulating the contracts of carriage of goods by sea, and many differences exhibit. In these legislations, unilateral termination of a contract by consignor in stead of carrier is provided under certain circumstances. Moreover, the scope and level of cancelling a contract by consignor are different in maritime law of different countries. In all, the responsibility of carrier became complex in the evolution of uniform law on carriage of goods by sea and shows the trend of mandatory rules limiting the freedom of contract. However, this transformation has its necessity and reasonability, reflects the trend that public law converged with private law, and conforms to the characteristics of public transportation, and met the balance of interest of merchants and shippers.The forth chapter of the thesis illuminates the freedom of contract and UNCITRAL's Draft Convention of Uniform Law on Carriage of Goods by Sea. The acceleration of economic globalization sees the transform of transportation of goods, mainly embodies in the use of containers and the form of"door to door"transportation. Moreover, the rise of electronic commerce influence very much to transportation of goods. The conflicts and loopholes in rules of the two rules system in the field of carriage of goods by sea set obstacles to the free movement of goods and added the cost of transaction. This problem attached importance which is shown to international shipping and trade circles. From the year 1996, UNCITRAL began its work to draft a new uniform law on carriage of goods by sea. The draft convention on the carriage of goods wholly or partly by sea appears under this background. The new draft convention came into being at the background of economic globalization, trade liberalization and social harmonization, with new practices of international shipping. It shows the perspective of seeking for justice in contract and back to the freedom of contract. Firstly, in the aspect of liability system, it adopted a"minimum network"system, and overall liability system based on fault, import the concept of performance party, expanded the scope of liability subjects, to limit the freedom of exemption by carriers. This shows the concern of uniform law on safety of transaction, and also met the trend of public law rules private law and contract towards institute. Secondly, it created a right to the dominion over the goods, its purpose is to coordinate itself and trade law on the aspect of the rights by the parties in transportation contract and the relationship among them in the upcoming convention. The values of institute of the right to the dominion over the goods are to solve the dilemma of relativity of contract of carriage of goods by sea; and it can assure the interest of controller without damage the interest of carrier. The right to the dominion over the goods is limited by transportation contact, or, to be identified with transportation. From this, we can say the right to the dominion over the goods subjects to be freedom of contract under transportation contract. Thirdly, maritime transport agreement in public transportation has the nature of freedom of contract, and shows an important function in international trade of liners. The uniform law now seeks for the value of order based on the freedom of contract of the public carriers; it cannot make an effective regulation to maritime transport agreement. The draft create an framework rules on overall contract with the characteristics of maritime transport agreement, and broke through the tradition of uniform law limiting the freedom of contract by public carriers, it is an effort to tracing back to freedom of contract in public transport based on the different value of order in the new round of unification of the law on carriage of goods by sea. As for the status of freedom of contract in the draft convention, in all, we can see a limited broadening of freedom of contract by the draft convention. The draft convention has no intention to expand the limit of freedom of contract to the scope to break the balance of interest of shippers and merchants at the present stage and a comparatively long time in the future.