On The Theoretical Basis Of Contract Implied In Fact

In traditional contract theory, mean agreed, as the founded and effective elements of contract, holds a core position in the concept of the contract. But since the 20th century, because of the declining of autonomy and freedom viewpoint of contract, the existence of forced contracting system, especially the widespread use of general contract clause, it is determined that the exist of the contract implied in fact relationship is objectively inevitable, which eliminates the litigant's meaning expression and only takes the factual process as its elements. However, besides the contradiction in the concept of itself, the biggest predicament of contract implied in fact is the lack of a unified flawless contract mode to be the theoretical basis of its legal relation and this leads to the extremely awkward position in the practice application of the theory of the contract implied in fact. In this paper, based on the most essential theory of the contract implied in fact, the author constructs the concept about the will of social community behinds the contract implied in fact. And the author explains the theory of contract implied in fact on the aspect of its component elements. Therefore, the contract will be liberated from the formal voluntarism, and more connotations will be finding about the contract implied in fact.Behinds the theory of contract implied in fact, there is a conjunct social-group, which reflects the idea, will and benefits of the social community. It is integrated from the individual differences, and is a kind of sublimate and reasonable choice. It is essentially unanimous of the will of social community. Though in the contract implied in fact, the personal will is ignored during the process of concluding the contract, the will of social community is till necessary as a whole. It also does not mean that the conflict against traditional theory. The will of social community is also constituted by two subjective and objective components: the expression behaviors and the inly idea. And on the aspect of will express, it insists"three factors"view, which including effective will, behavior will and express will. Correspondingly, on the base of social community theory, we define the construct components of contract implied in fact as follow: appropriate subject, content and the particular virtual process under the contract implied in fact. And the content component includes contract implied in fact based on the community relation, the contract implied in fact based on the social payment obligation and the contract implied in fact based on new scientific technology. Therefore, the contract implied in fact does not conflict against the traditional consensus contract. The contract implied in fact is a kind of contract theory as well as consensus contract, and is a beneficial complement of consensus contract. Though the two are different in the construct components, because the contract implied in fact does not need the agreement between the partners as its construct component, the contract implied in fact till necessarily has the will of social community as its component. During the process of concluding a contact, the will of social community will transfer into personal will, and so the bilateral contract implied in fact is concluded.