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On The Meaning Of That Error

Posted on:2008-01-21Degree:MasterType:Thesis
Country:ChinaCandidate:X D ZhangFull Text:PDF
GTID:2206360215972785Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Errors in intention declaring are intention declarations different from the declarers' will, which is basic on some misunderstanding or unconscious state. Usually, the inconsistency is not realized by the declarer.Intention declaration is the process that a declarer expresses his internal intention which will make effect in private law through external conducts so that the other party and society could get it. Intention declaration consists of internal meaning and external expressing. The consistency of the two parts is the certain aim of private law autonomy. To declare the true intention is one of the basic elements for the civil conducts to go into effect, though there is often inconsistency between intention and expressing because of various facts. Whether the meaning expressing is right or wrong must be finally confirmed by interpretation, which is called the principle of "interpretation coming first and abandoning" in the civil law. There have been principles of objectivism, subjectivism, and eclecticism in history. The system of errors in intention declaration mediates the conflicts between the subjective meaning and the objective expressing.The theory of error in declaration of intention emerged early. However, it is the Roman law works studying school in Germany in late 19th century that made some breakthrough. Germany scholars, taking savigny as the representative figure, put forward a theory of error classification characterized by stage, which made the error theory accurate and specific. In modern law theory circle in Germany, errors are generally divided into motivation error, content error, declaration error, transformation error and reception error. In principle, the motivation errors are not relieved in order to keep legal relationship steady, except for some errors with important nature, mutual motivation errors and motivation errors known by the other side. Generally speaking, the other four kinds of errors can be relieved. Reception error is actually misunderstanding without any legal significance unless the other party wrongly declares his intention because of the misunderstanding.The relief of the error is the essence of the error system. The aim of private law autonomy is enabling everyone to form legal relationships according to his own intention. If autonomy is basic on the wrong declaration of intention, its function and value endowed by law could not be achieved. Besides, to protect the other side's reliance interests and to keep transaction safe should be taken into consideration as well while the law is formulated. In some conditions, law gives the declarers of wrong intention the right of cancellation to protect their freedom of will with some cost. The declarer has to compensate for the loss of the other side or the third party caused by his ignorance or misunderstanding, i.e. the other side and the third parry have the right to ask for the compensation for his loss. Obviously, according to the principle of prohibiting abuse of rights, all rights above should be restricted by law.Considering the importance of the system of errors in declaration of intention, there are prescriptions in contract law, general principles in civil law and judicial interpretations as "significant misunderstanding". Those prescriptions are significant in guiding judicial practice, but generally speaking, system of errors in declaration of intention is provided in civil law of our country very toughly. The problems are closely related to the dilemma appearing in the development of civil law in our country. Besides, long-lasting plan economy held back the requirement to the system. In view of the issues above, standing in the conditions of our country, we should compare and use the experiences of other countries as reference to improve the system of errors in intention declaration from the following aspects such as accuracy of legislative diction, completing the error formations, rationalizing remedies of errors and so on.
Keywords/Search Tags:Expression of intention mistake, Serious misunderstanding, Content mistake, Civil Code
PDF Full Text Request
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