Comparative Study On Real Contract For The Benefit Of A Third Party

The thesis is a comparative study on “Real Contract for the Benefit of a thirdParty”, and the author places emphasis on the German law in combination withrelative legal systems of Swiss, Chinese Mainland, Taiwan district andAnglo-American countries to comprehend system construction, judicial basis, andespecially legal effects.The first section briefly describes the institution “Contract for the Benefit of athird Party”. As the great breakthrough of the principle “privity of contract”,“Contract for the Benefit of a third Party” changed the legal proverb “Alteri stipularinemo potest” of the Roman law. This institutional arrangement, which can shortenperformance process, reduce transaction costs and provide the promisee a shortcut tosupply a third party, is in conformance with requirements of social economy. It can bedivided into real and unreal “Contract for the Benefit of a third Party”. The former,that brings the third party independent claims against the promisor, is the core part ofthis thesis. In order to answer the question, whether the third party obtainsindependent claims against the promisor, prejudications and theories in bothAnglo-American-and Continental Legal System emphasize the role of the contractinterpretation, and consider concrete conditions and especially the purposes of the contract to pursue contracting parties’ intentions.The second section differentiates two types of “Contract for the Benefit of a thirdParty” and hereafter the author analyzes the question of acquirement of the thirdparty’s right in the third section. Actually,“Contract for the Benefit of a third Party” isnot an independent type of contract in the specific provisions of the Contract Law, butspecial arrangements of certain types of contract for a third party’s benefit.Regulations in General Principles of the Contract Law shall be applied to it.Prejudications and theories are open to the identity of a third party. No matter whetherthe third party has “Capability of Rights” or “Capacity to Act” or not, he can obtainindependent rights against the promisor from the contract as it becomes effective, andcan also freely refuse benefits. In order to protect contractors’ freedom of contact,promisee (or promisor) can eliminate or alter rights of the third party before the latteragrees to accept the benefits.In the fourth section the author makes a thorough analysis on the legalrelationships among three parties. Because it concerns the interests of three parties,their legal relationships can be subdivided into compensations-, consideration-andthird relationship, in which the first is the primary relationship that decides the state ofinterests of each party. Without special circumstances the promisor can performdefense rights of the compensation relationship against the third party, which cancounterpoise legal statuses of the promisor and the third party.The fifth section regarding defaults in performance is the most difficult point inthis thesis. Default in performance resulted by different parties brings distinct legaleffects. When the default in performance is caused by promisee, the promisor canperformance defense rights based on the compensation relationship and issuesecondary claims against the promisee. Default in performance resulted by thepromisor gives the third party claims for damages, but no right to terminate contract.When default in performance is caused by the third party, it may bring aboutacceptance in default or even delay execution liability. Furthermore, the third partyshall also bear the minimum duty of protection of the promisor. When a “Contract forthe Benefit of a third Party” becomes invalid, revoked or terminated, it comes into the problem of “restitution of unjust enrichment”. Most German scholars hold that, therestitution of unjust enrichment shall be operated in different legal relationshipsbetween three parties. For the purpose of coordinating the interests of each party, weshould always think over, whether the consideration relationship is paid or unpaid.