Study On The Principle Of Promise

This article will give a systematic verification of the cause and legitimacy of contract effectiveness by the research on the principle of promise. The text core thought include three parts: first, as a typical representative of private law, the effectiveness of contact legitimacy is from the free will of the contracting persons; second, the contract between the parties is in a legal binding, because the parties choose so; third, it respects for personal autonomy and the social credit. The article has four parts.The first part is a summary of the principle of promise, and conveys the relationship between the principle of promise and matched price theory, trust theory and the meaning theory of common law. The principle of promise based on the promise which plays an important role in common law, which is a theory of contract though the research on the effectiveness and legitimacy of contract, and is one of the basic theories of contract law in common law. The promise holds that contract equals promise which is the moral foundation of contract enforcement, and established on the credit and personal autonomy. The theories which can give an influence on the answer to the legitimacy of the contract effective include matched price theory and trust theory. From the point of promise theory, which can't be threaten by the matched price theory because of which is short of unity, case law and statutory law of their betrayal fully illustrates this point. Trust theory makes the enforcement of contract base on trust, and leads the law of contract to the field of tort law, which absorbed the existent value of the contract completely. The principle of promise makes a fundamental negation of the verification which considered the trust as a basis of contract enforcement, and advocates that the freedom of contract and autonomy idea is irreplaceable, and its distinction from tort law in theory and in practice. The meaning theory is established on the theory that civil law explains the legitimacy of civil law contract through the acceptability, which leads the legitimacy of the contract to a logic idea dominated by will though the point of personal will. The principle of promise and the theory of meaning are both the supporters of decisive will, are attributed to the scope of the contract theory of autonomy. Both find the foundation of legitimacy of the contract though personal will and themselves. Though the meaning theory makes the contract establish on acceptability, and the principle of promise makes the contract build on unilateral promise, the principle of promise uses the concept of agreement, and leads the promise to the scope of agreement, and forms a consensus view with the theory of meaning. Besides, the two have the same configuration in the interpretation of specific contract law system, such as the establishment of contract and the effectiveness of contract.The second part, the establishment of contract (concept) is explained by the principle of the promise. In common law, the contract can be defined as law enforcement in some way or at least approved by the promise of a promise or a group. So what kind of promise can be legally enforceable? In other words, what kind of the promise is to become a contract? In the theory of equal price, the contract is "promise adding the reason of offer ", that is, the contract can be set up with people promise and equal price. In the theory of trust, "promise adding trust," if a promise is not supported by the reason of offer ,but the offeree trusts that promise and gets damage ,the contract would be legally binding on the offeror. The promise is a contract according to the theory of promise, if offeror makes a voluntary and prudent promise, and take into account the future it would be enforced and the offeree accepts the promise, then the contract is on the establishment. This is similar with the theory of the meaning of the concept of contract in civil law. The definition of the contract is the consensual debt with the validity in civil law. The consent of offeree is connected with the acceptability of civil law by the principle of promise, and the promise will be on legally binding when makes it, what has the same result with the meaning of law effectiveness. This is reflected in the offer and acceptance mechanism, promise, offer, agreement and acceptance play the same role in the course of forming a contract. According to promise principle, the offeror issued an offer and is binding upon the promise only after the offeree agreement. The promise people can arbitrarily changes or cancels the promise before the offeree agreement, that is decided by the offerer who is as a party with the control position of forming a contract, it's also respect the will of the people. But the offeror should obey the acceptance if she or he decides not to withdraw the offer before the offeree agreement. The offerer is not binding before the offeree satisfied the condition which is followed after the offer, that's because the contract is not formed. But the damages which the offeree got can be redressed based on the system of unjust enrichment and tort.The third part is promise principle and the validity of the contract. The core parts of promised principle is to explain the causes of the contract effectiveness, it advocates, the enforcement of promise ,which is personal autonomy that causes free will in the moral enforcement ,and the contract in the enforcement of the law is legal recognition of moral coercive power . Promise people claims that the effectiveness of contract is from the will of contacting person, the law on the implementation of the contract is consistent with the meaning of the contract implementation. This view is challenged by different sides, first of all, is the basis of flawed trading challenges, in some cases, people can not see consistent meaning of parties because of flawed trading foundation, and the court's handling of the contract relationship is not based on the consistent meaning of the parties. In common law, flaw errors in trading base are shown as common mistakes, failed purpose or incapable performing. When the promise theory answers that, the first to admit that the blank of contract, and then demonstrates that blank contract and the implementation of the contract is the parties'free will, two sides do not contradict. When the contract is blank, unjust enrichment, and violations and the principle of sharing can deal with, these principles are not excluded by the promise, consequently hold the basis of the contract legitimacy firmly. In civil law, the objective foundation flaw is the system of affairs alteration, we advocate that, changes in the situation, without the same will of the parties, if the original contract is performed, that equals to the enforcement of the parties'will, it respects for the will of the parties, if it isn't in accordance with the original contract implement, rather than betrayal. Another challenge for the principle of the promise comes from the fraud and duress made by the contract. Some people think that, the reason which the court negates the fraud and duress is also based on the foundation of moral, which is also the moral basis of personal liberalism and the due meaning of the promise principle.The fourth part is about the challenge that the priciple of promise faces and its response. The direct challenge for the promise principle is from the principle of good faith and the rule of obviously unfair. Application of these principles demonstrates that the promise of the parties can't regulate the rights and obligations between them, the effectiveness of contract doesn't originate from the will of the parties, but is from the fairness and entitative good judgement of the court and society. Promise principle starts its logic proof though convention, points out that the principle of good faith requires people to act on the basis of convention. The convention which is established on the trust is compatible with autonomy, which would incorporate the principle of good faith to its moral foundation. The principle of promise shows skilled and easy responding to the challenges which the principle of obviously unfair brings about. It points that the principle of obviously unfair regulates the state which the contracting people sense is enforced, and what it is still concerned about is still the focus on whether the contracting parties are freedom when they conclude a contract, this is the due meaning of the principle of promise.In brief, the principle of promise claims that the principle of legitimacy of contract effectiveness is from the will of the client's consciousness and free will;as a private law , the meaning of freedom of contract and the idea of autonomy are the highest value and can't be irreplaceable.