Estoppels By Waiver In Civil Law

The point of modern private law has been transformed from the benefit of particular individuals to the benefit of all citizens. According to the new instructive theorem, in order to meat the realistic requirements of transaction, the precedent and doctrine of German and Japan set up estoppels by waiver. This theory is applied to remedy the defect of negative prescription and ausschlussfrist, which are used to limit the exercising of right by the elapse of time. This theory is applied to safeguard the justice spirit of the principle of good faith too. Negative prescription and ausschlussfrist are too inflexible to fit the society life, which is complicated and changeful. What's more, the legislature also can not foresee all the things of the society life. However, in the circumstance that the benefit of the party concerned is not balanceable seriously, estoppels by waiver is used to limit the exercising of right, make right and obligation of the party concerned alter by the creditor's outward appearance. Compared with negative prescription and ausschlussfrist, estoppels by waiver is more adaptable to the complicated and changeful society life flexible and realistically, it can equilibrate the benefit of the party concerned. According to the analysis of the precedent and doctrine about estoppels by waiver of German and Japan, we can conclude: so-called estoppels by waiver is a concept that if the creditor doesn't exercise his right in a quite long time, and his outward appearance make the debtor have proper trust, the creditor will not exercise his right again because of the principle of good faith. As a concept that concretizes the principle of good faith, estoppels by waiver can be applied to all kinds of vested right. But in order to avoid its abuse, which maybe make the efficacy of right soften and the morality of the debtor performing his obligation slacken, estoppels by waiver must be provided strict applied prerequisites, among which the trust of debtor is more important. The strict applied prerequisites make it sure that estoppels by waiver is an objective value judgment of law on the basis of the value selection of law by the creditor's outward appearance. I think, this judgment will lead to a result that the debtor has a kind of permanent defense right, but the right itself does not die out.Under the common law system, although there is no the concept of estoppels by waiver, the doctrine of promissory estoppels has the same foundation about the theory of law, and has the same function realistically with estoppels by waiver. But there is still a little difference between the two rules. In order to absorb some useful things, I introduce and compare the two rules in this article. Furthermore, I do some consideration and design of the legislative policy about whether or not absorbing the two rules and how to absorb them.Because of the establishment of estoppels by waiver, the precedent and doctrine do an important contribution to the progress of law. The principle of good faith is establishment foundation of this rule, preventing the abuse of right is purpose of this rule, equilibrating the benefit among the party concerned and others and society is the final target of this rule. So estoppels by waiver will be the trend of legislation in the future. However, there is still no this rule not only in the legislation but also in the judicature in our country now. What's more, this rule includes many problems, so it is necessary to be expounded, for the purpose that it can be absorbed by our system of law and become a rule in our law. This is the target of the article too. I will expound my shallow idea about estoppels by waiver from the definition of estoppels by waiver, the applied prerequisites of estoppels by waiver, the law effect of estoppels by waiver, the compare between estoppels by waiver and the doctrine of promissory estoppels, the establishment of estoppels by waiver in our law. I hope this article can be a little useful to the progress of law in our country.