Research On The Regulation Of Form Contracts

By the end of 19th century and the beginning of 20th century, accompanying the development of the society and economy, in order to adjust to the changes of a mass of dealings in modern society, a new method of forming a contract came into being.The word form contract is derived from western country. It is one type of contract in which the terms and conditions are drawn up in advance by one party for unspecific conclusions and the counterparty has to generally accept or reject them without space to negotiate. Form contract means that one party provides the conditions for repeated use,the opposite party can only express the opinion YES or NO. No possibility to bargain.As a special kind of contract,besides the general legal features, form contract has its unique legal characteristics. For instance if falls into a pattern. It is usually made in advance. It can not be negotiated about. Since form contract came out,There has being endless debates by therists and legalist about its nature. Here in my essay, generally speaking, I think form contract is still a contract. It is a new type of contract which meets the need of massive production and fine division of labour and the convenience and rapidness of commercial transactions. It is a new development of traditional contract theory on the bases of practice.Since form contract came out in 19th century, compared with other forms of contracts, for example, public utilities, it demonstrated unmatched advantage, As a result became the main form of commodity exchange. Its advantages include simplification of transaction procedure, reduction of transaction costs, increase inefficiency, rational distribution of risks, and reduction in number of contractual disputes, increase in transaction security, and no discrimination among all parties. And it is also be beneficial to fair competition. In some way, the applications of Form Contract cut down the troubles for negotiation of the parties concerned and save time and money, therefore reduce the cost of business. However, it also raises a series of problems in theoretical and practical aspects. Firstly, its feature to preclude the negotiation gives a heavy impact to the principle of the freedom of agreements under traditional civil law. For the maximum of interests, Form Contract is usually adopted in practice by the predominant party, who may take advantages to make some unfair and unreasonable terms and conditions, such as In China, only few years ago people realized to stipulate form contract.However neither legislation nor judiciary nor administration aspects are well developed, leading to difficulties to harmonize and balance such a important social relation-form contract. New contract law only simply stipulate conclusion, effect and interpretation of form contract And all these are not satisfactory. In a market economy country, it is imperative to stipulate form contract from perspective of legislation, judiciary and administration, to improve and perfect such stipulations. The purpose of this essay is to analyze both stipulations concerning form contracts by using foreign legislations, and foreign practices and practices in china in order to give suggestions on stipulations of form contract from the perspective of subject, basic principles methods. I think, according to our present laws, the subject of stipulation of form contract should be the exemption clauses, which leads to uneven share of risk.The key contents are to stipulate the common obligations of the makers: define the common guiding ideology of protecting opposite persons, stipulate invalid condition of form terms and establish the explaining rule of form terms.