A Comparative Study Of The Contract Concept And Practice In Ancient China And Ancient Rome

Contract practice is an indispensible part of production and life in both ancientChina and ancient Rome, and its consistently development created the two ancientcountries’ once prosperous economy and splendid culture. But, due to the differentregions the two ancient countries located, the economy of the two countriesdeveloped in different patterns and directions. Different cultural backgrounds ofancient China and ancient Rome means the discrepancy of their mainstreamdiscourse systems; the different political systems of ancient China and ancient Romedetermine the differences of execution of civil rights as well as the guaranteemeasures of contract; Furthermore, the social structures of ancient China and ancientRome are different, which introduce the distinction of ways of folk contract reliefbetween the two countries. All the discrepancies mentioned above lead to differentways and directions of the two countries’ legal systems of contract. But at the sametime, both ancient China and ancient Rome have rich folk contract practice, andcertain aspects of the contract idea of the two countries have something in common,which lay a consolidate foundation for comparison and contrast. This dissertationattempts to figure out the essence, connotation and concept of the contract culture,improving the theory of the history of Chinese civil law system, having a furtherunderstanding of the influence of the ancient Chinese contract idea and culture onthe contemporary law system, providing important resources for the localization ofmodern rule of law.First, an overview of the concept and practice of contractThe more thriving the economy, the more frequent the practice of the contract is.Consequently, the related system and the idea has been developed and practiced. In ancient China and ancient Rome, the main contract practice includes transaction ofreal estate, human beings, movable property as well as lending and tenancy. Thecomparison and contrast shows that there exist some differences in the two countries’tenancy contract documents, reflecting the civilization of contract and their respectivecultural characteristics. By comparing basic items of contract document, thedissertation tries to explore specialty of form, content and discourse of contract withindifferent historical and cultural backgrounds, and sum up some common features ofthe development of contract, which would facilitate the investigation of thedevelopment of Chinese ancient contract documents and its characteristics.Second, the formats and discourse systems of contract documentsThe formats and mainstream discourse systems of contract documents of ancientChina and ancient Rome are different, because the ways of production, life as well asthe cultural backgrounds are quite different. In ancient China, both the folk andgovernment attach importance to the land, because the land did not only relate topeople’s livelihood, but also was of great value as real estate. Therefore, wheneversigning a land tenancy, or buying and selling contract documents, both folk andgovernment were very cautious. It mainly manifested in the contract documents, inwhich the contract documents relating to the land written in a thorough and formalformat. This section focuses on land tenancy and the contract documents, comparingthe contract formats and discourse systems of ancient China and ancient Rome.The dissertation elucidates the discourse system mainly from a “sale of the landcontract document” of ancient Rome, combining Roman jurists’ relevant studies onland transaction, and content of letters during the transactional process, andsystematically compares it with land sales documents from the western Zhou dynastyto the Qing dynasty in ancient China. In the land sales documents of ancient Rome,the payment, provisions of right transference, guarantee provisions of land ownershipgave full interpretation to the concept of right, which were absent in the land sales contract documents of ancient China. It further proves that the expression of “rightsand obligations” belongs to the discourse system of ancient Rome. Ancient Romeconstructed their contract protection system focused on the rights and obligations ofthis discourse system, so as to form a corresponding system of litigation and thewhole of the Roman law system. However, through more careful comparison, it is notdifficult to find that there is no “rights and obligations” in discourse system of ancientChinese land sales contract documents, let alone be used to explain the transferenceand guarantee of ownership. Actually, ancient China’s combination of the guaranteeof “national public power” with their families or individuals”,“private right” canalso have very good effect. All in all, the ancient Chinese and ancient Roman practiceof land sales contract, such as language, measures of right remedy, default penaltyand the provisions of the easement, do exist differences. But the ultimate goal is tomeet the needs of private citizens at the time, maintaining the normal order of theownership of land circulation, and reducing the civil disputes.Third，the comparison of protection measures in contract practiceThe common people of ancient Rome had the consciousness of “maintaininglegal rights”, and “in accordance with the law” was to protect their rights frominfringement; While the ancient Chinese people would have some preventiveagreement as guarantee in the process of the practice of the contract and thepower of government at the same time backed up the smooth implementation of the“practice of contract” aiming at ensuring that the contract be fulfilled smoothly.Among various contracts, protection measures of movable property salescontracts are obvious due to many factors, such as high mobility of both parties andvariety of transactions. Other types of contracts also have some protection measures,such as some prevailing guarantee provisions in the real estate buying and selling,sales of human beings and tenancy, etc.Fourth, comparison of the relief ways of contract practice Under different legal cultural backgrounds of east and west, the relief ways aredifferent regardless of public remedy or private remedy in ancient China and ancientRome. In order to optimize the current contract dispute remedy in China, we shouldexplore the causes of discrepancies of the contract dispute between the two countriesand have a further understanding of their respective cultural connotation of law,which will help us figure out contract disputes relief in China. However, the differenttypes of contracts depend on various categories of relief ways.Lending practices were widespread both in ancient Roman and ancient China,due to which debt disputes recurred. The national law formulated interest rates,limiting the body, proposing public authority remedies. Though among the folks,there were civil and moral constraints, reconciliation, guarantee of private relief andlynching, etc., yet those ways could not always solve the fundamental problem.Therefore, both countries were seeking for effective solutions. Roman’s solution wasto refine the contract rules, comparison, while ancient China’s solution was toreinforce the notion of “justice”. In ancient China from the government to folk,private financing problems were actively explored in line with law of economicdevelopment, centering the concept of “fair” regardless of approaches they adopted.Fifth, the comparison and contrast of the rational connotations of contractconcepts and practicesContract practice is conducted between person and person, so it isinevitable to adopt certain connotation of emotion. And this situation has been reflectedin contract documents of ancient China since the Song dynasty. Though there was nocounterpart in ancient Rome, such factors would be taken into account. Forexample, in the process of land transaction, both parties would also consider theelements of emotion and relationship while discussing about the price. The seventhvolume of Younger Pliny’s Letters included a letter with the content that he explainedthe problems concerning sell real estate and price of land to his wife’s grandfather Fabatus. Ancient Rome folk parties not only considered emotional elements andrelationship in the process of transaction of land, but also in the process of choosing aproper way of purchasing. For instance, in order to help his friend Tolanguluispurchase a farm, the younger Pliny once wrote a letter to his friend Bobius. Theabove analysis would contribute to the conclusion that while certain differences doexist in contract practice in ancient China and ancient Rome, there are also somecommon features like both the two countries’ contract practice in ancient timecontaining certain connotation of emotion.To sum up, there is still necessity of exploring the differences ofcontract practice between ancient China and ancient Rome, and various factors maycontribute to these differences. But it is undoubted that the concept of contract containsin contract practice in ancient China should be regarded as a kind of the spirit of thelaw, which bridges the eastern and western views of contract. It should be consideredas “Chinese elements” during the process of construction of brand-new model of ruleof law.