On The Legal Effect Of Contract Form

The contract form is the manifestation that the parties conclude acontract and reach an agreement. It is the appearance of the contract content.Seen from the development and the changes of the contract form, it obviouslydemonstrates the changes from paying attention to the form to attachingimportance to the meaning. The ancient contract law accepted " the formalrequirement principle" in the contract form. The contract should be concludedaccording to the prescriptive form and procedure, otherwise having no effect.The latter-day contract law promotes the freedom of contract and form, it tosome extent admits and protests" the informal requirement principle". That isto say, the contract can be concluded without particular form or procedure. Aslong as the two parties reach an agreement, the contract comes into existence,and has legal effect. But we should see that, in the modern civil law, both therespects to the personal freedom and the safety to the bargains are necessary.Self-government is the basic principle in privative law, and it also canmaintain the safety to the bargains. It is a foundation of the continuing anddevelopment of the modern society. With the development of the socialeconomy, people should pursue the effective trade in the condition of thesafety to the bargains. Therefore, nowadays many countries in the world baseon the respect to the self-government, the convenience of the economiccommunication, the predigestion of procedure, the elevation of economicbenefit and the safety to the bargains, and take the informal requirement as aprinciple and take the formal requirement as an exception in the contractform. The law only requires some particular contract should be made inparticular form. The others can be made in any form.In this trend, the contract law legislation also gradually keeps up withother countries. The contract law spurns the rigid restriction andoveremphasizing the written form in the contract form of the economiccontract law. According to the principle of the contract freedom it definitudesthat the parties can accept any contract form by themselves. Simultaneity inorder to give attention to the safety to the bargain and the convenience of thetrade, also take the informal requirement as a principle and take the formalrequirement as an exception in the contract form. It embodies adequately inthe contract law article 10 "The parties may conclude a contract in written,oral or other forms. When the laws or administrative regulations require acontract to be concluded in written form, the contract shall be in written form.If the parties agree to do so, the contract will be concluded in written form."In common instance, it has no special requirement in the contract form, butwhen laws or administrative regulations require forms in some importantcontract, it should be applicable. If there is not any requirement in the law oradministrative regulations, the parties also have no such stipulation, peoplecan accept any contract form. Because the planned-economic systeminfluence the legislation and judicature for a long time in our country, furthermore there are some deficiencies and conflicts in the sorts of the contractform and the relation between the contract form and the contract effect basedon the contract law and other particular law. All these factors make the theoryfield and the judiciary field dispute endlessly in the sorts of the contractforms, or the effect of the contract without the legal or promissory form,whether the contract form is a qualification of a contract coming intoexistence or a contract becoming effective. The mistiness of the regulation oflaw baffles the united operation in judiciary practice. Because of thedifference in the judge's comprehension of law, it may induce completeopposite verdict results in the same instance.According to this situation, the author discuss the influence of thecontract form to the contract effect from the parties'freedom of choosing thecontract form, the sorts of the contract form, the relation between the contractform and effect. After make the conclusion that we should carry out theprinciple of informal required and the exception of formal required in thecontract form, the contract form does not affect the contract effect and thecontract establishment commonly, only in exceptions it affects the contracteffect, the author point out that the tendency of the contract developmentrequires the agility and convenience of the contract forms. In order to causethe establishment of the contract and stabilize the trade relation, we shouldprefer the essentials to the form, and try our best to make up the contractshort of form in judiciary practice. Simultaneity in the conclusion of thearticle, the author put forward some suggestions of the resolving the problemof the contract form and the contract effect. We should regulate definitely theeffect of the contract lack of legal form, consolidate the contract law and...