Font Size: a A A

On Mistake Of Expression Of Intention

Posted on:2009-06-12Degree:MasterType:Thesis
Country:ChinaCandidate:Y ZhongFull Text:PDF
GTID:2166360242487587Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Legal conduct has been the emphasis upon which civil law pays, whereas theexpression of intention is the dispensable component hereof, therefore, the researchon the expression of intention is of good value to the civil theory. The divergence hasexisted in academia as to what component the expression of intention consists of.Recently many state that the traditional theory of constructive factors Germany ofshall be simplified, whereas which shall not derogate the inner meaning of theexpression of intention.The consistence between the inner intention and the expression is the averagemanifestation of the expression of intention, while there are somewhat causesresulting in the inconsistence hereof from time to time, including two cases that one isthe intentional inconsistence hereof, and the other is the unintentional one that iscalled as the mistake of expression of intention by the scholars (hereafter referred as"wrong").Whether the intention manifestation reflects the real intention of theparty/parties shall be finally ascertained by the interpretation hereof, which is calledas the principle of"interpretation prevails over the revocation of the intention"in thecivil law.The wrong manifestation of the expression of intention came into being earlier,but its breakthrough development dated from the contribution of Savigny, namely, therepresentative of the historical school of law, who was the scholar to distinguish theexpression wrongs of intention from the motivation mistake and fully reviewed the theory of theory of the mistake of expression of intention. I hold that the analysisabout the generating process hereof shall be good for researching and perfecting theerror pattern hereof depending on the generating pattern of the expression of intention.The generation of the expression of intention always goes through the followingpatterns:( i)to generate the motivation of the very conduct for meeting someone's need;(ii)to ascertain the objective of the conduct after going through the struggling of themotivation; (iii)to make choice of the proper method for purpose of executing theobjective in which the intention comes into being;(iv) to manifest the intention; (v)tocomplete the expression of intention. Therein, the mistake expression of intention ispossible to occur.The civil codes in the common law countries, having inherited the tradition ofthe German civil code, mostly classify the intention wrongs based on the generatingpatterns of intention. The wrongs in the motivation, in the principle, shall not berelieved; however, the big wrongs as to the nature hereof shall be regarded as thematerial wrongs for the purpose of protecting the legal relation's stability, if possible.As the general practices, the wrongs resulting from the content, the manifestation andthe conveying hereof shall be relieved. The wrong of acceptance donates themisunderstanding hereof in essence, and is not of worth in the law except that thecounterparty has made the wrong manifestation of the expression of intention. Thelaw endows the expresser of will with the right of revocation to protect the freedom ofexpressing will based upon the sacrifice to compensation for loss of reliance from thecounterparty/the third party. Of course, it shall be subjected to the provisions of lawwhether the expresser executes the revocation hereof or the counterparty/the thirdpartymakes request for damages.The civil lawmaking of mainland of China has use the expression of the bigmisunderstanding instead of the mistake of expression of intention, subjected to theinfluence of the pre-Soviet Union. At 1950s, the legislator used the expression ofmisunderstanding in the draft of the civil code when the first time to enact the civilcode. The big misunderstanding was explicitly enacted in the general principles ofcivil law in 1986, after which it was perfected in the explanation to the several issues in the application of general principles of civil law and in the contract law. Generallyspeaking, the big misunderstanding system in the mainland of China has beenrelatively incomplete and fuzzy, and the defects still exit wherein. As to the existingdefects, the wrong manifestation of will I the mainland of China shall be perfected inthe choice of the expression of wrong manifestation, the perfection of the typesthereof, and how to rationalize the relief thereof etc, based upon the nationalconditions and absorbing & using the beneficial legislation experiences whetherinternal or external.
Keywords/Search Tags:Mistake of Expression of Intention, Serious Misunderstanding, Motivation Error, Content Mistake, the Right of Rescission
PDF Full Text Request
Related items