Contractus Re, To Be Or Not To Be

The position of real contracts in contract law is always inferior, and the concerned discussion is rare, even in the sense of foundation, what are contractus re (contracts real) is very obscure; furthermore, their historical development from Roman law has not been in our fields of vision. Thus, the research on them not only can give us definite cognition concerned them, but also can contribute wisdoms and knowledge on the question——real contracts, to be or not to be ? Also, the case study can provide explanations of the run rules of gratuitious contracts to which haven't been attached importance in contract law. Then, it furnishes evidences to the issues whether law should be divorced from morality and whether the humanity is bad or good.Accordingly, the article avails of the archaeological approach to reveal the evolution of the real contracts so as to enable us to know the essence of them, what kind of value judgment has been imposed upon them by the lawmaking body, what kind of legal technology has been employed to embody such judgment. So, such research relates to the origin of them, pertinent theories of jurists in medieval times, analysis of jurists of the natural law school in the 17th and 18th century, concerned provisions in the modern civil codes. On the basis of the above work, the author tries to analyze the logical problems of the real contracts themselves by the means of logic, and makes every effort to search for all kinds of allegations that the real contracts should be reserved in the civil code the assertors insist on, and then analyze whether such allegations are trenchant or not .If the logical problems can not be settled by the logical methods, whether the value judgment is capable of providing sufficient and reasonable explanation, upon that the article turns to the research on the ethical foundation of the real contracts.The research makes out that the real contracts in modern times are different from the contractus re in Roman law, though they are same on the surface, the value judgment the lawmaking body insisted and the function to be realized have been changed fundamentally. Unfortunately, the real contracts in modern times have encountered a lack of ethical foundation as well as the logic problems, but the contractus re in Roman law can't cast light on the former because of their positive and...