Right Price And The Reasons For A Comparative Study

What is a contract? It is a promise or a set of promises in Anglo-American law of contract, while it is an agreement in continental legal system. Although the formulations are of notably differences, the final purpose and ultimate mission of the two legal systems' contact law are definitely the same that is discriminating whether a promise is enforceable or unenforceable, in other words, whether an agreement is binding or unbinding. The doctrine of consideration is used as a tool to make the above judgment in Anglo-American law of contract, while a lawful cause is one of the requisites for the validity of an agreement in the continental contract law. Undoubtedly, to compare and analyze the doctrine of consideration and the theory of cause would deepen our understanding of the concept and meaning of contract law theory in the two legal systems.The comparative method and the method of combining historical and social study with positive analysis are the main research methods of this dissertation. Besides detailed discussion and fully comparison of the doctrine of consideration and the theory of cause, the author also used the value theory of nature law as a special approach to disclose the culture connotation and value orientation behind them. The dissertation is divided into five parts.Chapter I is about the source of the validity of a contract and its related explanation theories. A valid contract will generate a kind of legally obligation between the contractors, that's why? To figure out this ultimate question about the validity of contracts, there are various theories and doctrines sparkling their gleams of wisdom in the river of history. According to the time order, they are the Doctrine of Pharisaism, Will Theory, Theory of Reliance Interest, Efficiency Theory, the New Social Contract Theory, including the Doctrine of Consideration and the Theory of Cause, which have made notable influences in the fields of contract law, and contributed a lot to the explanation of the source of the validity of contracts.Chapter II focuses on the introduction and investigation of the doctrine of consideration. The doctrine of consideration is the essential source of binding force of a contract in Anglo-American law, which has experienced a long process of evolution: from the "benefit-detriment theory" in England to the " bargain theory" in America. There is a series of complex rules under the title of the doctrine of consideration. The detailed discussion of the concrete rules and exceptive rules is used to prove that the doctrine of consideration also has an institutional reason, and is very relevant to legal practice.Chapter III mainly illuminates and discusses the theory of cause. According to The Civil Code of France, a lawful cause is one of the requisites for the validity of an agreement, which is also a magnitude criterion to judge whether a contract is binding. In some countries of continental legal system, this theory has evolved from "the theory of subjective cause" to "the theory of objective cause", accompanied by the transformation of value proposition from individual orientation to social orientation.Chapter IV makes a deep comparison between consideration and cause. The functional similarity in the contract law by the doctrine of consideration and theory of cause provides us with the premise to make a comparison between them. The author compared these two theories from the following points of view: their origins, applying, value propositions, functional orientations and statuses in quo & futures.The last chapter of the dissertation is the question of consideration in Chinese context. To study the foreign legal system and theory itself is not the end, it is just a tool. So after the comparison and analyzing, the author turns to asking the meaning of these two theories to the Chinese law. By analyzing Chinese legal texts and theoretical essays, we can get the conclusion that absorbing and drawing upon fruits of the doctrine of consideration and the theory of cause should be considered as an appropriate approach to our legal reform.