On The Foundations Of The Validity Of Contract

The parties of the contracts should performance the contract obligations strictly according to their promises in the terms of the contracts after the subscribing, and all of people take it for granted. However, the question of what's the justness of this phenomena was asked very infrequently. That is to ask the question of why the contract can react such a work of restricting the parties. This question is just a question of the foundations of the validity of contract.There are about fifty thousands words in the paper. It is divided logistically into three parts:The first part: this part includes the content of the prelude and the first subhead. The prelude is a brief summarizing of the themes of the paper. And the content of the first subhead is the differentiating and the accounting for the basic conceptions which will be used in the body of the paper. Firstly, the Chinese words"QIYUE"and"HETONG"are the same meaning in the actual expressing of the contract. Secondly, the propositions of"the death of the contract"and"the regenesis of the contract"reflect that the systems and the principles of contract inosculated in the process of the progress. The death of the contract was to indicate that the tortious responsibility had been extended to the contract responsibility and the consideration theory had been suffocated and the contract freedom has been restricted. The regenesis of the contract was to indicate that the contractual act and the tortious act had been reformed on the basis of a new view of the contract. Thirdly, legal responsibility is the guarantee of the validity of contract, and the customs should rely on the terms in laws too, otherwise they cannot work on the validity of contract. Fourthly, the validity of contract should rely on the legal potency, and the foundations of the validity of contract is just the questions of interpreting the justice of the contract validity. The second part: this part is the body of the paper probing into the foundations of the validity of contract. The embodiments are from the second subhead to the sixth subhead.This part discusses the topic from four points. The first point is from the parties'intent declaration. According to the theory of the juristic act in the traditional civil law, the parties'intent declaration can conduce a private legal effect, and the will theory can be a way of interpretation for the foundations of the validity of contract. Contractual act is a typical juristic act, and the juristic act theory is the preferred way to interpret the validity of contract because that it was centered with the intent declaration. The contract can conduce the validity that is to say juristic act can conduce a private effectiveness. And, juristic act has not to be a legal act. The second point is from the idiographic legal systems. According to the request of honesty and credit principle and the justice principle, the contracts need the interpretation and modifying on the basis of the actual situations, and that won't affect the validity of contract. The contract needs to be interpreted because that the languages and the parties'intention have localizations, and what's more, the parties may not express clearly taking into account of the cost of the contracting. The interpretation of the contract can remedy the parties'intent declaration furthest, and we can conduce the conclusion from the interpreting manners. And the contract should be modified according to the actual situations is the request of the justice principle. The rules of the contract interpretation, the system of the Rebus Sic Stantibus, the system of the fault liability, the system of anticipatory breach of a contract, the system of the natural obligation all contain the attitude of confining the transactions by law. What the law protecting is the whole processes of the transactions, and the law can prescribe a legal obligation to satisfy a special situation, and the natural obligation is not a pure moral obligation but has legal meaning. So we can conclude that the validity of contract must lie on the law's legal forces. The third point is from the legal techniques. The distinguishing of the jus inrem and the creditor's rights effectiveness in Germany law is scientific. Referring to the Germany practice the current legal techniques in continental legal system can solve the distinguishing problems perfectly. The development of the legal techniques promotes the categories of the legal relationships. And thus development undoubtedly induced different legal potencies, and thus development offered much help to the definitude of parties'rights and obligations. The last point is from the traditional theories in two legal systems. The traditional theories which can explain the justice of the foundations of the validity of contract contain the cause theory which has been bloomed in France and the consideration theory which is in the Anglo-American legal system, and the consideration theory pay more attention to the bargaining feature of the contracts comparatively. The cause theory in France give much prominence to will theory, so its route should be deemed to be same with the juristic act theory in Germany. Consideration theory in Anglo-American legal system make the consideration, offer and the promise to be trinity, and they think that they are the three aspects of a bargain which cannot be divided up. Thereinto, the consideration is the parties'material declaration, and it is the foundation of the validity of contract.The third part: this part is the postcript of the paper, summarizing the gist, and the paper is over. The contract can work a validity is just because the parties'intent declaration and the law terms which ruled the validity of contract. The customs and the moralities do not have enough compellent to interpret the foundation of the validity of contract. So many scholars talked such a topic is just because the terms in law adopted them. For consideration in Anglo-American legal system pay much more attention to the bargaining feature of the contracts, studying in the consideration theory can help us to understand the foundation of the validity of contract.