Involving His Contract Interpretation Theory

A contract involving third party is defined as a legal system in which a third party enjoys contractual claims or assumes contractual debts.There are four cases,namely contracts performed to third party,contracts with the function of protecting third party,contracts performed by third party,and subrogation meeting the requirements.This type of contracts has experienced a process from custom to customary law and then to statutory law(case law).During this process,the rights and obligations of third parties are gradually recognized.Privity is the basis of contract law,which to a certain extent hinders the emergence of contracts involving third party.But the theory of volition underpins third-party rights.Its modified unilateral behavior model,realizes the dual values of efficiency and justice,thus is worthy of adoption by the Civil Code.Based on the principle of good faith,since the promisor and promisee have stated that they have granted rights to the third party,and the third party relies on it,he or she is able to file a lawsuit in common law.After procedural right substantializes,it becomes the independent right claimed by third party.Public policy or social interests heeds the needs of general public represented by third parties,which reflects the positive effect of a certain form of transaction involving third parties.In short,the emerging of contracts involving third party reflects the maintenance of a certain macro-transaction order,and has been influenced by many factors.Third party beneficiary contract is more about the performance of contract than the effectiveness of it.Besides the direct request of third party,the promisee may request the promisor to perform to the third party.Promisor can defense himself by its relationship with third party.The third party may not exist or be certain when contract is established,but there must be some means to determine his or her identity.Contracting parties can add requirements for third party's benefit.The aforementioned rules can be applied to simple type of third party beneficiary contract,just noting that third party at this time has no independent right to request for performance,only the right to receive.With the contemporary new development of third party beneficiary contracts,accidental beneficiaries begins to appear based on public policy and social interests.In areas such as business,public policy,social welfare,and civil rights protection,third party beneficiary contracts have been endowed new social functions to protect the interests of disadvantaged groups and safeguard public interests,which reflects the socialization of contract law.As for recommendations for application,it is necessary to strengthen third party's right to refuse,so as to strengthen the freedom of third party.In order to achieve the rebalance of tripartite relationship,while third party's right to refuse is strengthened,the promisor and promisee shall also be bestowed the right of modification and cancellation.Of course,these rights should be claimed before third party rejects or accepts the benefit,and compensation must be made for the loss of third party's reliance interests.Contract with the function of protecting third party means that after the contract is established,not only a legal relationship occurs between the creditor and the debtor,but the debtor also has the obligation to take care of third party who has a special relationship with the creditor.If the debtor violates this obligation,he or she shall also be liable for breach of contract to a third party.It stems from the flaws in the application of tort law in the Germany.There are similar systems in the US,such as expressed or implied third party beneficiaries of warranties and liability of experts to third parties.Its constituent elements include the existence of a debt,a third party close to main performance,the creditor's protective duty to the third party,the debtor recognizing that the third party is close to the payment and the creditor's obligation to protect the third party,and third party needing to be protected.The legal consequences are that third party has the right to claim damages against the debtor,and the debtor can invoke its own right of defense against the creditor and the third party.As the binding force of the contract extends over the time span,the obligation to protect third parties is also expanding.But the inherent disadvantage of this system is that the scope of third party is difficult to determine.Although the author focuses on the analysis of determining third party's identity in Chapter 3,the practice of the German Federal Court is actually expanding the scope of the third party until beyond the debtor's expectations.In addition,there are no aforementioned loopholes in Chinese civil law so the Civil Code does not need to introduce this system.In the contract performed by a third party,a very important issue lies in the theoretical basis for the third party to undertake contract obligations.It comes from three sources,the agreement between debtor and third party,the mixed identity of debtor and third party or the third party actually enjoying the benefits,the socialist core values of justice and prosperity.There are a few points needed paid attention to in terms of constituent elements.One is that the purpose of the contract is to ensure performance of third party.The second is that the performance of third party is a factual act and does not require him or her to have corresponding behavioral capabilities.The third is that third party is not obliged to perform compulsorily.Fourth,the creditor does not have the right to request for performance against a third party but has the right to receive.And the creditor shall be liable for delay in acceptance.Fifth,debtor guarantees the performance of third party.When the third party fails to perform or improperly performs it,the debtor shall bear the liability for breach of contract to the creditor.After the debtor assumes the liability for breach of contract,whether the third party should refund depends on the agreement.Usually,there is no right of recourse.Sixth,in accordance with its regulatory purpose,article523 of the Civil Code is an arbitrary norm.Therefore,it should be allowed that the debtor and creditor agree that the debtor is not liable for actions of third party.Although article 523 uses the term "be liable……for breach of contract",the performance by a third party can be widely applied to the relationship of general debts.The most important issue is that the scope of the debtor's responsibility for the actions of third party should be limited,so as to ease the rigid principle of strict liability.Subrogation is a powerful means to pay off debts to satisfy the interests of creditors.Therefore,for the needs of the creditor's interests,a third party who has no interest can perform it on his own behalf.If a disinterested third party performs contract,the debtor can refuse it.The parties may also agree to prohibit performance by a third party.However,the agreement shall follow the principle of good faith and shall not have the main purpose of harming the freedom of contract and the interests of third parties.An interested third party can perform the contract even if the debtor rejects.If the performance of contract is personally specific,a third party is not allowed to perform it on its own.There are three kinds of legal relationships in the contract,namely the basic relationship between the creditor and the debtor,the executive relationship between the creditor and the third party,and the claiming and subrogation relationship between the third party and the debtor.In the part of realization of subrogation rights,the author specifically introduces the subrogation relationship between joint guarantors and joint debtors stipulated in Article 700 and Article 519 of the Civil Code.It's worth noting that granting a third party a strong right of claim and subrogation,the debtor should be allowed to invoke its own double defense rights against the creditor and the third party to rival the rights of third party.Finally,the debtor could contract with the third party to exclude rights of claim and subrogation.Performance by third party is also widely used in public law fields such as tax law,procedural law,and administrative law.