On Make Good Obligations

The civil law regards right as its centre. So there are so many researching outcomes about right, while there are few research about onus. Traditional theory of contract law put more energy on researching right. Generally, even if scholars talk about onus, conventional onus is the emphasis. Equally, traditional theory of tort law put more energy on researching statutory onus. Generally, scholars regard it as universal onus. In fact, contracting parties should take on not only conventional onus but also non-conventional onus, in order to maintain reliance and transaction. Furthermore, the non-conventional onus can not be precluded by contracting parties. On the other hand, statutory onus is not universal onus. Thinking about public policy, it should be designated to only exist in certain relationship. Meanwhile, the party concerned in certain relationship should undertake not only negative onus, which aims at not infringing the other party's interests, but also active onus which aims at protecting and helping the other party when his interests has been or will be infringed. So the thesis aims at putting forward a leading conception, in order that we can assemble serial duties that have uniformity to one congregation. This notion is the duty of well-doing, which demands in certain relationship, one should entertain goodwill, do not infringe the other party's interests, at the same time, protect and help the other party when his interests has been or will be infringed. This duty's sense is to meet the society's good desire and maintain development of the whole society through satisfying the other party's reasonable confidence and expectation. The spirit of modern civil law is strict liberalism. This restricted liberalization means that when someone exerts right, his behavior should be constrained by public policy, morality and convention. As for morality, it can be divided to yearning morality and compulsory morality. The latter stipulates basic rules, which is essential to an ordered society, so it is easy to be upgraded to juristic onus. The duty of well-doing is the very onus. The civil law accentuates fair and honest idea, which is based on people's goodwill, so goodwill is the criteria of confirming fairness and honesty. The duty of well-doing, considering from the angle of form, is potential duty. On this point, it can be discriminated from the duty stipulated definitely. It is not completely identified with conventional onus or statutory onus. In the domain of covenant, the duty of well-doing, which is derived from relation covenant and confidence rule is imperative to maintain the chain of dealing and the whole civil society. In the domain of tort, the duty of well-doing, which is derived from fairness principle is essential to carry out public policy. The duty of well-doing, considering from the angle of effectiveness, is complex duty. General duty is negative duty, which only demands people do not trespass the other party. But the duty of well-doing based on moral idea includes not only negative duty, but also active duty, which demands people care and love their "neighbor". The duty of well-doing, considering from the angle of potency, is juristic duty. On this point, it can be discriminated from the moral duty, because it has special requirement of extent and circumstance. Moreover, it has binding force of law. Since the duty of well-doing guided by moral idea demands people safeguard the other party's interests under certain circumstances, how to designate certain circumstances is important. Border of this duty lies in who is my "neighbor", who will have expectation, if this expectation is reasonable. Firstly, as what I have said, this duty only takes place in certain relationship, such as covenant relation and tort relation. In the former relation, it is a certainty that the plaintiff will entertain reasonable expectation to the defendant's behavior, because the purposeful contact ofboth parties raises and lifts this kind of expectation. In the latter relation, the plaintiff is very bri...