The Construction Of Samuel Williston's Theoretical System

With the merging trend of Anglo-America common law and continental legal system, the academic theory, the approaches have began to widened openly to the great thoughts and theories of the scholars of Anglo-America common law and no longer limited in the fields of continental legal system which is more relevant to China's law system. Up to date, the objectivism, the reasonable formalism ,the freedom of contract and the high efficiency is the typical characteristics of academic research of the contract law, the author pay much attention to the jurisprudential schools in west, , numerous contenders have appeared--autonomy theories, consent theories, efficiency theories, pluralist theories, relational theories, and others--but no one theory has seemed capable of providing a satisfactory comprehensive account. Even if the most influential of these explanations, the law-and-economics model, may now have reached a point of diminishing marginal returns. The contemporary contract law focuses on the plain expression of the law, the objective explanation of the law, and the autonomy of the contract. All above consist of the core theory of the classical formalism , thus the representative of American classical formalism, Samuel Williston, the legist of contract law,comes into the vision of the author, all of his belief of objectivism,formalism,the flexibility of respecting autonomy of contract,the attitude of highlight efficiency which are the perfect starting-point of this thesis to the author. For more than a hundred years now, we have been encountering Samuel Williston. Samuel Williston arrived at Harvard Law School as a first-year student in the fall of 1885, and, with a few brief interruptions, he remained there for the rest of his long career. Still, Williston's impact on American law primarily came, not through his teaching, but through his scholarship and statutory drafting. The length of his academic career alone is staggering. His first piece as a professor, a treatment of a bankruptcy question, appeared in 1891; his last, an article opposing the UCC, appeared in 1950 when Williston was eighty-eight years old. All told, Williston wrote more than fifty articles covering the fundamental doctrines of contract law, including offer and acceptance, consideration, interpretation, defenses, and remedies. In addition, he wrote or edited eighteen casebooks and produced several treatises on commercial law subjects like bankruptcy and negotiable instruments. Two of these treatises, the 1909 work on sales , and the monumental 1920 work on contracts, brought him particular acclaim. The five-volume contracts treatise was especially influential and quickly became a standard source both in the courts and the academy. Williston's work as Reporter on the influential Restatement of Contracts is well known. Williston's activities as a statutory drafter also have great influence. By one estimate, at least thirty-six states adopted statutes that Williston had written, and his memory lingers on. More than fifty years after his last article and more than eighty years after his most important work, Williston's name still appears on lists of the most widely-cited legal scholars.There are many outstanding jurists in the field of contrast law of UK and US, who had made great contribution to the development of economy and the improvement of the transaction system. Samuel Williston is only one of them. Although we can see that he has great influences and achievements, the reason why the author chooses him to research in this paper is more than that. There are mainly three reasons why the author chooses him as the researching topic. Firstly, the academic theory of objectivism in contract law made him be against the unlimited autonomy of contract , and the visionary will theory which could not be held, and gave him the great theoretical advantages. Secondly, as a formalist, under the guidance of contract objectivism, his studying approach had both the features of classic and modern formalisms; Thirdly, his classic theories of contract law involves the fundamental and the important aspects of contract law and has made great effects of the later developments of the field.I. Theoretical advantages of objectivismThe theory of Williston's objectivism is on the foundation of habitual meaning which everyone can understand rather than the inside intention of the parties. According to Williston, the force of law, endowed by the parties'meaning instead of the expression conveyed by words, was likely to lead to uncertainty, objectivism theory aimed to provide a general theory which could ensure the consistency, certainty and predictability of legal arrangements so as to reduce business risk and expand Stability of transaction. Williston's theoretical foundation of objectivism made him to be in favor of legal formalism and oppose contract autonomy and freedom of contract. To be sure, this is not to say that Williston was fundamentally opposed to freedom of contract, any scholar including Williston did not ever deny the fact that it was a primary premise to establish a contract on the basis of parties'autonomy. However, when the contractual act was under law, the effectiveness of contract should be confirmed by law, and the claim of parties needed the support by law, it necessarily resulted in the uncertainty for both effectiveness of law and rights of parties to speculate the inside intention of parties and boundlessly respect the freedom of parties. In these cases, the rights of parties would not be fully protected and the pursuit for efficiency in control area of contract law would not be satisfied. Therefore, Williston followed the rules of objective contract law on one hand, and stressed the reasonable restrictions on the freedom of contract and parties'autonomy on the other.II. Formalism MethodologyWilliston's study was on the premise of objectivism, therefore he chose to support the legal Formalism and he also illuminated his object to the legal realism. He believed that the foundations of law are principle of law and code of law, and only the coherence of the principle of the law could achieve justice which people were pursuing for.One aspect of his Classical Formalism is that the code of the law could be carried out coherently, which could generate trust or even reliance and logical anticipation for applied public , and then reduced the risk in order to realize of the predictability of the business.He also held the principle of the law that was not formed without foundation, it came from the practice and the accumulations which the judge dealed with the cases, and he insisted on the positivism and emphasized the practice. He exerted the logically analytical method which embodied the aspect of characters of new formalism.That he opposed the realism was because the legal realism studied the objective social reality according to the law, the realism emphasized the importance of the behavior and political factors to the judges . However they payed less attention to the impacts of abstract code and principle of law. In addition, the Legal realism emphasized the process of the litigation and the functional action and also insisted this action to complete the function to politics, society and psychology to pay more attention to the action of judge and the effects of law. Williston considered the realist had pay more over attention to social factors beyond the law , meanwhile they also ignored the function of code and principle of law extremely, and lacked to keep balance and prediction.III. The structure of the theoretical systemBased on objectivism and with the guide of formalism methodology, Williston carried out researches in several major fields of jurisprudence of contract, summarized several classic theories which constructed his theoretical system, and further explained fields in which those theories applied, including freedom of contract, consideration , promissory estoppel , and equity right.1. Freedom of contractAmong these four classic theories, it is contract freedom that can represent his legal theory of objectivism best. Williston believed that, the unlimited freedom of contract, like unlimited freedom in other directions, does not necessarily lead to public or individual welfare. Freedom of Contract should not be a kind of freedom without restrictions, it should be restricted somehow. He insisted that freedom of contract must be balanced against other social interests and institutional in its focus on assigning the balancing to the correct governmental actor.2. ConsiderationConsideration theory is regarded as the king of kingdom of contract law. Williston spent most of his academic energy in the research of consideration theory. He regarded it as the base of contract law and a basic principle. The theory showed the most theoretical, abstract and formalized aspect of him. For Williston, the research of consideration theory he did was not a pure pursuit of theory, but to make it better apply and serve to the legal system. Through the sufficiency of consideration theory, we could verify the enforcement of the expression of intention, and then judge the effects of contracts.3. Promissory estoppelThe third classical theory of Williston is his promissory estoppel. The principle of good faith in contract law requires the parties of the contract shall use their right due to the provisions of the law and the basic principles of the morality. The principle of good faith only belongs to the basic rules and normality of people , and it does not make the detail requirements of the parties of the contract when they disobey the principle of good faith, however, promissory estoppel makes the extensible explanation of the principle of good faith. As the draftsman and reporter of"the Restatement of contract", Williston firstly took the"promissory estoppel"into account of the statute law of contract, which was regarded as one of the most valuable contribution of him to the law of contract.4. Equity RightThere existed many classical treatises of the equity right by Williston. The phrase of the equity right which derived from the development of the equity , is one kind of the specific right of the Anglo-America law which is contrary to the concept of the common law. In the era of Williston, the legists were in the beginning of thinking of the orientation of the right of equitable actions . At that time, the law had not reach the present level , and many legists could not adapted to use the phase of the equity right ,even without the specification of its characteristics and the range ,however Williston started the journey of exploring the equity .On the premise of the objectivism doctrine, on the base of the formalism methodology of Williston's theoretical system, the style and content of Williston's theory, got rid of the widespread over freely academic thoughts , and merged the academic features both the Anglo-America common law and the Continental legal system absorbing the advantages of both law system, through which Williston's theory made full reference of the strong points of the legal system which the Anglo-America common law has and reflects the legal inclination of China。...