Reflection On The Theory Of Contract Implied-in-fact

The traditional contract theory consider that unanimous of expressed intention is the basic factor of contract to set up, there don't have another way to create a contract except for the party through the offers or efforts to built up. However, when we move in 20th century, with the development of industrial society, the block transaction was appeared, the society forces grow up, the difference ideology and regime, these factors make contact move towards alienation, The'contract implied-in-fact'was appeared because of the traditional contact theory is difficult to explain large number of new trading activity and trading process. There is a battle royal in Germany when this theory came up. As time goes on, there are more and more people to criticize this theory in educational circles of civil law. In other words, there is a suspicion that'Contract implied-in-fact'wants to overthrow the traditional contract theory, and then this theory became decline, next shelve something and forget it. However, the free acceptable of traditional contract theory befall unprecedented problem because with the fast development of industry and commerce, culture and social development to further pluralism.'Contract implied-in-fact'which is Haput built up, the theoretical center is contractual relationship must be set up by some fact relationship in some cases. The concept of'Contract implied-in-fact'is civil subject equality set up by some legitimacy but no legal actions and follow legal rule to reason by analogy to set up the relationship of a legal nature. The particularity between contract implied in fact and traditional contract is : it is a nonlegal action that doesn't via'offe----effort', the coercive power of'Contract implied-in-fact'become direct law stipulations.'Contract implied-in-fact'come on the stage because of when the classical contract develop to modern contract to follow remedy freedom of contract and substance of real contract. But Socialistic Theory and Practice of Nazism which is strengthening in the middle of nineteen century make a great impact on'Contract implied-in-fact'when it built up.'Contract implied-in-fact'experience the historical process which is'Creation----Develop----Decline', the battle between educational circles and'Contract implied-in-fact'never stop at that time, then the Germany federal court consider and decide some cases used by'Contract implied-in-fact'the most famous of case is'PARK IN HAMBURG'. But when the time goes on, lots of flaws make'Contract implied-in-fact'to downfall. The applied the theory of contract implied-in-fact can absolutely solve lots of problem to a certain extent, but it's a private law, although it matches up to social reality because of to compress the private law autonomy, but the explanation strengths is to be short of validity. As well as the problem which is'Contract implied-in-fact'wants to solve is: if it can be solved by traditional theory, then there is no cause for destroy the private law autonomy to use'Contract-implied-in-fact'. But'Contract implied-in-fact'must find the interlink age of traditional theory if it's want to improve, it will play a role if we make'Contract implied-in-fact'and traditional theory derived from the same origin.Nowadays in China'law now in force'haven't admit'Contract implied-in-fact'. As well as the development of reform and opening-up, contract to be alienation because of the spaces of private law autonomy decreased. But the core of private law autonomy which is contract free theory still is a'new baby'in China. How to protect free contract and develop private law autonomy is the top priority in Chinese legal system. When Chinese legal system can solve the problem which is'Contract implied -in-fact'wants to solve,'Contract implied-in-fact'not suitable to draw into Chinese legal system because of the malpractice of it compress the spaces of private law autonomy.