Fact Contract Theory Research

Implied-in-fact contract was called "contract implied in fact" when it was born.It was forward by Haupt who is Germany famous scholar in 1941. After that, Germany scholar led out a sharp argument centered on the problem whether it wasnecessary, to create the concept of "implied-in-fact contract" or not, which affectedthe judgments of many cases. Not long after that, the theory about implied-in-factcontract was put aside because it was thought to have denied the traditional contractand stopped developing. The principles of entering into contracts theory and stoppeddeveloping. The principles of entering into contracts freely were not highly popularuntil the new Contract Law was promulgated and implemented in 1999. People werebenefit from the contracts they enter into freely, but they also felt their freedom islimited everywhere day after day. Thus they started to reconsider the reasonable placeof the Implied-in-fact contract. This article had affirmed the vital role and thefoundational status of traditional contract theory by analyzing the implied-in-factcontract in the common law and special law, on the other hand has also positivelyappraised the influence and the function of Implied-in-fact contract.The purposes of writing this article have two aspects. First is to give a properexplanation and evaluation to the new social phenomena appear continuously andseek the best controlling law to regulate them. Second is to complement thetraditional contract theory and consolidate the foundation of the theory that has beenever shaken.There are three parts in this article. Here is the abstract:Part one, I have explained general theory and evolution of Implied-in-factcontract in detail, among them I sum up it as five small parts. First, I haverecommended the concept, characteristic, property of implied-in-fact contract andalso recommended the definition of the Taiwanese scholar then given my owndefinition. Implied-in-fact contract is legal debt coming up with lawful nonlegalbehavior between equal bodies or unequal bodies and be regulated by legal provisions of the traditional contract. Second, by combining the process of the contract'sformulation, I have explained the background and evolution of contract, it reflects theprocess of contract's self-perfection. Third, I have introduced the disputes betweentwo opposite party in Germany about the implied-in-fact contract, Professor Larenzeis most famous one in the opposite party, and the change of his attitude aboutimplied-in-fact contract has reflected the deficiency of this theory. The fourth, Iexpound the characteristics of implied-in-fact contract by comparing it with thetraditional contract. I analyze quasi-agreement, forced agreement, etc, So I havecompleted this part through expounding the fact and comparative analysis. The fifth, through the study on Germany's relevant cases, I have found the attitudes towardimplied-in-fact contract in Germany's judicial field——from the adoption at first toabandoning lastly.Part two, on the basis of classification of "implied-in-fact contract" theory byProfessor Haupt, analyses Chinese legal application in such aspects as "contractrelationship based on the society contact","partnership in fact","labor relationship infact","contract relationship in fact based on the society payment obligation", etc.Then I conclude that our legislation concerned adopted the traditional consensustheory instead of "contract implied in fact" theory.Part three, the content of this part is my thinking and recommendation about the"implied-in-fact contract" theory. It can be divided into two sections. Firstly, thearticle gives thinking upon the rationality of existing of "implied-in-fact contract"theory from the aspect of common law of obligation field. After concluding detailedthe shortcomings of "implied-in-fact contract" theory, I sum up that it is moreappropriate to explain the questions aroused from the theory of "contractimplied-in-fact" using the traditional theory such as unjust enrichment. Secondly, thearticle analyses the rationality of "implied-in-fact contract" theory from theperspective of specific law field. Consequently, the conclusion is reached that it ismore appropriate to resolve questions of partnership in fact or labor relationship infact by using the traditional processing methods such as those used after the invalid of successive contract than using the theory of contract implied-in-fact.Frankly speaking, I am not dare to say it includes any innovation or newdiscovery, but actually there are little my own ideas in this article: First, I haveresearched this theory detailed from the ordinary law to the special law and havesupplemented the former research only from the common law field. Second, myopinion is different from the former theory though I don't approve the implied-in-factcontract, I also acknowledge its progressive significance.