On The Theory Of The Legitimacy Of Validity Of The Contract Instructions

The study on contract normative underpinnings, which would have important effects theoretically as well as in practice, is not only the most basic issue of contract law studies, but one of the fundamental issues in civil law. For a long period, however, most law scholarship on contract in China mainland has been putting their focuses exclusively on contract rules while few attentions on this basic area, and it is even rarer to study thoroughly the evolution of the contracts and its general theories. The purpose of this writing is to fill this academically ignorant hole.The article consists of three following parts:Partâ… including Chapters 1 and 2 is intended to summarize the classical civil contracts as well as contracts in early common law, and to introduce the main general theories about contracts in Middle Age. Contracts either in early civil law or in early common law were obviously pragmatic and instrumental, and changing for the changed societies. Classical scholarship had no systematical theorizations on contracts and the after-middle-age theories were moral.Partâ…¡,i.e. Chapter 3, is devoted to introducing the will theory prevalent in 19th century. Will theory of 19th century had distinct philosophical undergrounds in different jurisdictions even if it was in effect almost the same in positive law. In this part, the author analyzes the different philosophical logics under American Lockean Naturalism, Britain Utilitarianism, Kantian Metaphysical Moralism and Hegel Idealism and pointes out the figures in common and their substantive differences that had led to the criticism on the will theory in the aftermath.Partâ…¢, divided into Chapter 4 and Chapter 5, shows the criticisms on the will theory in contract schools of early 20th century and the newly-emerging general theories based on these criticisms. The criticisms resulted from the dramatic social, political, and economical changes through this century and indicated the will theory not meeting the demands of the changed situations and eventually directed the academics on general contract theory towards pluralist theories, away from one-dimensional will theory. The institution of contracts appears pragmatic again.