On The Format Contract

Standard form contract has been widely used in exchange fields since the end of the 19th century and the beginning of the 20th century,which indicates its great value. However,it has been criticized by many experts and scholars. Legislation of standard form contract has been existed for several decades in foreign countries ,but in our country ,it is The Law of Contract was promulgated in 1999 that prescribes the standard form contract for the first time. And It is so simple and defective that many problems can not be solved. Therefore ,1 take the standard form contract as the subject to discuss the introduction ,efficacy .interpretation of the standard form contract ,respectively,in three parts. Meanwhile ,the relevant items of The Law of Contract are analyzed for the purpose of making legislation of Standard Form Contract more perfect.The first part of the article emphasize the introduction of standard form contract .which includes five sections. Firstly,the concept of standard form contract is analyzed in detail and the essential characteristic that the form items cannot be consulted is pointed out. Secondly ,with the respect of different viewpoints on the nature of standard form contract,I prefer the covenant theory and give four reasons for it. At the same time,reasons why non-covenant theories are refused have been explained .hi this segment,the freedom and the justice of contract is focused on because the standard form contract influences the traditional theories of contract greatly and in return it affect the character of the standard form contract. The generality,origin and derivation of the freedom of contract are expounded concretely,especially the process from absoluteness to relativity since the 20th century. However ,the use of standard form contract conflicts with the freedom of contract. Against the background of the five aspects of freedom of contract,the form items are formal and cannot be selected freely,which indicates that the freedom of contract could not be realized at most. Therefore,the freedom of the users should be limited legislatively in case of abuse of freedom,on which the aim of items No. 39,40,41 in the Law of Contract is based. Thirdly ,as for the type of standard form contract ,the paper shows that it is theoretically divided into the consumer contract and the commercial contract .At the same time,"the battle on the form" in foreign countries have been briefly introduced and in most parts of the article .The consumer contract is concentrated on only .Fourthly,in discussion of the five characteristics of the standard form contract ,this thesis illustrates the origin of the words and relationship with the related words,analyzes the meaning of "standard" and points out that in our country the word "standard contract" should not be used,and the form items should not be called " formulary items" .Lastly,the advantages and disadvantages are discussed .The standard form contract is used so widely due to its so many advantages,including saving time,decreasing cost,reducing disputes and giving the guide for justice and formal equality. The reason that the standard form contract has been criticized is up to the major disadvantage that the contract is drawn up unilaterally and can not be negotiated on both sides concerned,which results in putting the other side in a unfavorable position and conflicting with the freedom of contract.The second part of this article .throws light on efficacy .Firstly ,the founding and effect is introduced in general and their different meanings are formulated .hi the Law of Contract only the rule of justice in items of standard form contract and the obligation in exempt items are prescribed .So we analyze the three obligations in form items which users should commit :to draw up the standard form items according to the rule of justice,to remind the other side of the existence of the form items and to illustrate the form items .If the users do not performance the obligations ,the items of standard form should be refused out of the contract .At the same tim...