Research On The Theory About Implied-in-Fact Contract

Implied-in-fact contract was called "contract implied in fact"when it was born. It was put forward by Haupt who is a Germany famous scholar in 1941.After that, Germany scholars led out a sharp argument centered around the problem whether it was necessary to create the concept of "implied-in-fact contract"or not, which affected the judgments of many cases. Not long after that, the theory about implied-in-fact contract was put aside because it was thought to have denied the traditional contract theory and stopped developing. The principles of entering into contracts freely were not highly popular until the new Contract Law was promulgated and implemented in 1999.People were benefit from the contracts they enter into freely and were not aware that the traditional contract theory was not harmonious with our society. So the theory about implied-in-fact contract is not rooted today in our country. Though the study of the theory about implied-in-fact contract is not so satisfying in our country and abroad, I believe this theory is not only necessary to exist but also have its strong vitality. So I select it as my subject to study without any hesitation. The purposes of writing this article have two aspects. First is to give a proper explanation and evaluation to the new social phenomena appear continuously and seek the best controlling law to regulate them. Second is to complement the traditional contract theory and consolidate the foundation of the theory that has been ever shaken. There are three parts in this article. Here is the abstract: First part, I expound the general theory about implied-in-fact contract in detail, including its concept, characteristics and nature. In the part of concept, I introduce and evaluate the definitions some scholars gave and give my own definition of it——implied-in-fact contract is legal debt coming up with lawful nonlegal behavior between equal bodies and be regulated by legal provisions of the traditional contract.Then I expound the characteristics of implied-in-fact contract by comparing it with the traditional contract. I analyze quasi-agreement, forced agreement, etc, and draw a conclusion that they are respectively a kind of implied-in-fact contract. The other task of this part is to fix the nature of implied-in-fact contract. The traditional contract is a legal behavior and debt on agreement. But what about the implied-in-fact contract? After I introduced the opinions of some scholars, I conclude that implied-in-fact contract is also a relationship of credit and debt. But it's debt on law instead of on agreement and it comes up with implied-in-fact behavior or quasi-legal behavior instead of legal behavior. Second part, I expound the produce and evolution of the theory about implied-in-fact contract About 50 years ago, Professor Haupt was deeply convinced that this theory was more suited to real life comparing with the traditional contract. He considered implied-in-fact contract is a kind of traditional contracts. Soon after that, the approval party and the opposition party in Germany started a heated argument. The reasons of the opposition party were summed up as follows: 1.The legal relationship lack of identical meaning is not traditional contract at all; 2. implied-in-fact contract had not unified formation factors, so it was harm to the stability of the application of the law; 3.The problems about implied-in-fact contract could be solved by the current laws. The approval party did their best to develop this theory though the opposition party was aggressive, of which the most famous theory was Larenz's Social Typical Behavior Theory. After that, other countries seldom study this theory so deeply. I introduce the situation in America and China. And I also analyze the inevitability and necessity of this theory's appearancefrom the angle of law-society. I analyze some problems about this theory and make a self-criticism. For example: why does the implied-in-fact contract analogize to apply the legal provisions about the traditional contract? How is the explanation strength of implied-in-fact contract? What is the relation between implied-in-fact contract and behaviour capacity? Whether the theory about implied-in-fact contract confines the autonomy space of private law? Third part, I expound the type, effect of implied-in-fact contract and curtly design the frame of the system in our coming Civil Law .For the implied-in-fact contract has not unified formation factors, I only expound the most typical ones. There are two types of a implied-in-fact contract. One type is coming up with implied-in-fact behavior, including the conditions as follow: 1. The behavior of incompetent person that is necessary to him or only be profitable to him; 2. Continuous contracts that have performed but have reasons to be invalid or revocable; 3. The debt coming up with the form of legal silence; 4. A kind of advertisements putting a price on; 5. The debt coming up with the form of the achievement of one's willing; 6. Quasi-contract; 7. Forced agreement; 8. Form contract. The other type of implied-in-fact contract is coming up with quasi-legal behavior, mainly referring to the legal relationship whose content is performing the attached duty of a contract. The effect of implied-in-fact contract can't beyond that of debt. The effects of implied-in-fact contract are mainly summed up as follows: 1. The two parties'obligation to perform the implied-in-fact contract properly; 2. The party who violate the implied-in-fact contract must undertake the duty in law; 3. Each party mustn't modify and terminate the implied-in-fact contract at will; 4. Each party's legal rights should be protected. Its'efficacy states respectively are coming into force in accordance with the law, being to be canceled in accordance with the law, being invalid in accordance with the law.