Irrevocable Donation And Refusal To Perform The Obligations Under Donation Contract

Beginning with a case and in the course of the analysis and resolution of the case, this paper compares the section 186 and the section 195 of Contract Law of the People's Republic of China with the section 90 and the section 261 of the Restatement of the Contracts Law (second) of America, and associates the research of the provisions of law with that of the details of case. On the basis of the foregoing, the author discovers the similarities of the provisions of two countries: donation contract (promise) is generally irrevocable, charitable subscription is enforceable; when circumstances change, donor may refuse to perform the obligations under donation contract under certain circumstances or is excused from contract liability. This paper tries to seek legal culture behind the provisions. The author believes that the provisions embody the development from classical contract law to modern contract law, in other words, the influence of the factors beyond law or legal ethic, which conforms to the reality that Chinese traditional ethic has an important effect on law. Furthermore, the author makes a conclusion that it is necessary to pursue the limited compromise between contract law transplanted and traditional legal culture reformed, in the context of legal culture of China, and in the course of the transplant of and the learning from western contract law which roots in western legal culture. This accords with the trend ---- in consideration of factors beyond law such as morals, public policy, social interests, substantial justice etc.---- of western contract law that we learn from. More important, this helps to gradually establish, at the least cost, a contract law system that firmly roots in Chinese legal culture, is universally accepted by Chinese people and effective in practice. Then, the author, reviewing and rethinking the section 186 and the section 195 of Contract Law of the People's Republic of China, considers that the spirit and form of the conception----morals enter into law and social interests are prior---- in traditional legal culture last and develop in the learning from foreign donation contract law. In addition, the author puts forward understanding, interpretation and legislative proposals about them involved in reformed legal culture, substantial justice, and carries them out into judicial process, so that social functions of them are achieved.