Relational Contract: Theory Construction And The Consideration Of The Reality

Relational Contract Theory was first put forward by Ian R. Macneil,who is an American contemporary contract law expert.This theory explains the contract reality from the perspective of legai social science,and overcomes the discreteness and presentiation of Classicical Contract Theoty by pushing social relations behind contracts to the front.This paper focuses on Relational Contract Theory, investigates the prinpicle of Change of circumstances,and explores its Construction in detail from the aspects of relational characteristics and justifications.Then on the basis of the contract reality in China ,the author seeks to find out the meeting point between this theory and the contract reality in China in the research methods of Comparative Law,for the purpose of clarifing the theoretical and practical significance of Relational Contract Theory to the contract reality in China.In the first part of the paper is an overview of Relational Contract Theory.This theory is mainly composed of the following components:the root of contract is social; transactions can only exist under the conditions of the division of labor ; Such elements as fairness and trust affect the formation of contract as equally as autonomy;contract is only a framework to solve the problems,which needs to add elastic elements to better respond to the unpredictable future. Ian R. Macneil also believes that, relational contract is always there.In addition,Relational Contract Theory is only descriptive,which aims to explore the contract practice and not to form a systemic theory.The second part is the analysis of the relational characteristics of relational contracts. Theory is abstract,so it is nesseary to interpret theory with the assistance of specific institutions.When analyzing the relational characteristics,the author expound these characteristics result from social changes through the prinpicle of Change of circumstances and many typical cases in the evolution of this prinpicle.As the focus of this article,the third part is the justifications about Relational Contract Theory. In the face of social change, Relational Contract Theory makes a fundamental challenge to Classicical Contract Theoty mainly from the three following aspects: the assumptions about the subject,the core of the theory and the method.First, eonomic man is the ideal of Classicical Contract Theory,while social man is Relational Contract Theory's confirmation of the contract reality.Second,consent is is highly recommended by Classicical Contract Theory,but in real practice,relation has increasingly become an important factor to consider .Finally, Classicical Contract Theory interestes in using the methodology of formalism ,while Relational Contract Theory advocates to use the method of Substantialism. The fourth part of this paper is the practical considerations of Relational Contract Theory, that is, the discussion of the realistic significance of this theory.Before the discussion,the author first establishes a fundamental principle,that is the infinitely close between theory and facts. When it comes to the field of contract law, It is to strive to achieve the meeting between the contract theory and the contractual reality.In this context, the author reveals the realities of contract in China from contract system,dispute resolution and regulatory norms contractual relationship and so on,then reaches such a conclusion, relational contract is the main form of contract in China. According to this thesis, the author further pointes out that,the reality of China's Contract is the the social basis for Relational Contract Theory to fit with the contract Law in China.Relational Contract Theory can be used to explain our existing legal system of contract, and is also helpful in guiding our practice of the contract.