On The System Of The Contract For The Benefit Of The Third Party

Contract is the binding agreement between the specific parties. It forms the principle of privity of contract because of this specificity. Privity of contract shows that the effect of contract only involves the parties of the contract but not the third party who has no concerns with the contract. On the ground of this strict privity , the contract freedom and intention autonomy of ancient contract theory have been recognized and respected widely, and have been regarded as the fundamental principle of private law. But as the time passed by, with the development of the economy, the contract relationship is becoming more and more complicated, which has led to an awkward situation in practice. The person who suffered from loss or damage has no right to bring a lawsuit against the defendant on the contract, while the party who has the right to enforce the contract, is unwilling to do so because of no damage. In order to solve this problem, various countries have set up or acknowledged the system of contract for the benefit of the third party in some extent. This system can not only protect the third party'believing benefit, but also can shorten the procedure of performing, reduce the lawsuits, raise the efficiency and depress the social cost. It is a pity that our country hasn't paid enough attention to it so far, because of lacking of uniform general regulations, although there are some relevant rules in special laws. So the author attempts to conclude the general principles of the contract for the benefit of the third party through the comparative law. Meanwhile , the author will also make theoretical research combined with cases and practice, based on which she put forward her own opinions about the system established in our country, in order to be valuable for our legislation.Except the introduction and the conclusion, the structure of this thesis is:Chapter one is an overview of the contract for the benefit of the third party. After a comparative law survey and analysis of scholars'opinions on this matter, what is the contract for the benefit of the third party is that the parties of the contract promise if the debtor performs to the third party out of the contract, the third party has the right to ask the debtor to perform to him directly. This contract is not an implicit type of contract, but it is a special abstract of law, which is the description we divided the terms for the benefit of the third party from the other terms which is promised by the parties. In a word, the contract for the benefit of the third party contains two types: one is the contract for shortening the procedure of performing; the other one is the contract for caring for the third party. In this part, the author also analyzes the relations of compensation, consideration and performance in the contract, and point out the compensation relation is decisive for the establishment of the contract, but the consideration relation (except for the relation of void contract) has no effect on the contract for the benefit of the third party.The next chapter is dedicated to discuss the principle of the privity of the contract and the contract for the benefit of the third party. In this part, the author firstly analyzes the basic impression and the value of the privity of the contract, and considers that the principle of the privity of the contract is great important for the establishment of intention autonomy and contract freedom. But with the development of epoch, if we survey the principle of the privity of the contract in the special conditon, we can find that there are a lot of localizations. So there are many cases in practice against the privity of the contract, one of them is the contact for the benefit of the third party. However, the contract for the benefit of the third party and the principle of the privity of the contract are uniform, because they both reflect the parties'intention autonomy in essence, only in different historical conditions and different aspects.Chapter three is the validity of the contract for the benefit of the third party, which is the main content of the thesis. This part is divided into four sections: the validity to the third party; the validity to the creditor; the validity to the debtor; the variation, revocation and the rescission of the contract for the benefit of the third party. Thereinto, the validity to the third party is the main research object. As far as the third party is concerned, the right which he has got is assured if he makes the expression of intention of receiving contract rights. The legal effect to the third party includes the right to ask the debtor perform his duty to himself; the right to ask for the damage if the parties breach the contract; the right to resist the parties'altering or discharging the contract. Of course, the third party should take on some obligations, for example receiving the debtor'giving in time and so on. The legal effect to the creditor includes the right to ask the debtor perform his duty to the third party and the right to demand compensation. But the legal effect to the debtor includes the right to resist the creditor and the third party. Generally speaking, the parties can not alter or discharge the contract for the benefit of the third party at ease, except for the promise in advance and the reason for revocation or legal right of discharging.The last chapter is the consideration of establishing the system of the contract for the benefit of the third party in our country. Firstly, the author clarifies the disputes between the scholars in our country about Article 64 of Contract Law at the present, and points out that Article 64 is not the contract for the benefit of the third party. There art not general rules in our country about the contract for the benefit of the third party, which is a big defect in legislation and disadvantageous to the development of our Contract Law. Secondly, the author puts forward two proposals to make up the defects: one is to add the correlative content of the contract for the benefit of the third party through issuing judicial explanations by the Supreme People's Court; the other one is to make concrete regulations under the contract chapter through formulating the civil code. Seen comparatively, the second way is worth agreeing with. Because it can make our law satisfy the realistic needs further by giving the contract for the benefit of the third party proper legal status.