On The Legal Acts Of The Reasons

Cause is an important and complicated conception in western continent legal system. This paper tries to ascertain the meaning of cause in history and find out what was the role it have played in western contract law. The author thinks that when our country transports other civil system, the cause theory in German legal system known as theory of juristic act of real right should be adopted.The first part of this paper analyses the cause of contract in Roman law initially and point out that: the meaning of cause in ancient Roman private law is abundant and plural which should not be disposed unitarily. The cause of contract one side means the direct objective why a party assumes debts. Externally, such an objective is an exhibition of the payment already done by the other party or the debt he has assumed. One the other hand, it means the incentive why a party makes such contract. In a period requiring strict formality, the effect of the obligation of a formal contract is due to its special formality. But as the decline of formalism, cause begins to affect the validity of contract.Cause may also support delivery of right in Roman private law. Cause of delivery means the subjective purpose that induces a party to realize a legal relationship. Such purpose may be discharge of a debt, or performance of a sales contract, or in order to make a contract. At the same time, Delivery must also be consistent with the Roman social morality.The second part of this paper discusses the reconstruction of the delivery and formal contract in Roman private law taken by German civil law. The school of historical jurisprudence explains the delivery as an independent contract of real right and thinks that delivery may be effective without the support of cause, so is the theory of abstract real right contract. On the other hand, by analyzing the stipulatio in Roman private law, the scholars create the noncausative contract of obligatory right and found the noncausative legal act. Now in modern German civil theory, cause is used to explain the justice of the delivery result from give act. If such give act lacks a cause, the "unjust enrichment due to give act" will regulate it.The third part talks about the development of cause in Roman law system and the relationship between consideration in the common law and cause in continent law. With the extended scale of the consensus contract, cause can be used to restrict the consensus of contractors. The French civil law succeeds the cause theory in Roman law and disposes of the cause plurally, cause of obligation and cause of contract. It clearly stipulates in its civil code that an illegal cause is one of the factors that can deny the effectiveness of a contract. Though the cause theory in Roman private law has seldom affection on the consideration in common law, some functions played by consideration are similar to cause. They both do not consider the consensus as the sole factor to determine the effectiveness of a contract, consideration or cause may plays a role here.The fourth part explores the essence of the cause, which is justice of contract. Those legal relationships should be guided by ethical principles by ascertaining the obligation assumed by contractors or the already existed legal relation, or by exploring the motives of the contractors. Cause has two meaning, one is nearer cause, the other is further cause. Such disposition can unify the cause theory in German and French. At one time, in order to make those conceptions more delicate and harmonize those specific civil rules, the civil legislative authorities in our country should adopts the cause theory in German and found the system of the noncausative legal acts.