Research On Forced Contracting Obligation

The principle of liberty of contract, one of three basic principles of modern privatelaw, is the core of the autonomy of will. But as the productive forces develop, monopolycapitalism gradually replaced the laisser-faire capitalism and the equality among civilsubjects was breached. Meanwhile, the appearance of natural monopoly furtherundermined the foundation of liberty of contract. As a result, the liberty of contract is nolonger equivalent to the contract justice. Therefore, the voice of putting limitation on theliberty of contract was increasing, under which situation the forced contracting systemcame out. This system is in order to balance the different contracting ability between twoparties, to protect the rights of the weak in economic exchange and to realize the realjustice of contracts. Throughout all legislations in and abroad, all countries haveprescribed the forced contracting system, but there are still different views toward someissues arising from this system among scholars, for example, the concept of forcedcontracting system, the application scope of the obligation, and the nature of civilliability of violation of this system, etc.The concept of forced contracting system has the branch of broad sense and narrowsense. Say from narrow sense, the system only includes forced promise, because onlyforced promise can guarantee the contract. While say from broad sense, the forcedcontracting not only includes forced promise, but also forced offer. From their concept,even though forced contracting system has some public law character, yet its nature ofprivate law is out of question. The establishment of the system is in order to makecontract between two parties and the nature of the right and obligation relation formed inaccordance with the forced contracting system must be contracting relationship. Whenthe system applies, the contracting obligator has the obligation to make contract with theother party, but the two parties still reach to agreement through offer and promise process.However, under different circumstances, taking all the profit into consideration, the lawsometimes forces the obligator to make offer, sometimes to make promise. From theview of the writer, the concept of broad sense is preferable, because the narrow sensemakes the application scope of the system too narrow, which is not the true meaning of establishment of the system. Meanwhile, from the view of current laws, the forcedcontracting system should include forced offer.The application scope of the forced contracting obligation is not clear, in that lawsonly confirm the civil subjects who has the forced contracting obligation through specificregulations. That is to say, the system can not apply if the contracting party is notincluded in the specific regulations. But the method of citing has critical disadvantages,so that we should make a more reasonable standard to judge whether the forcedcontracting obligation applies. After deep paralysis of the forced contracting obligation,the writer thinks that the standard of obligator, time and space, cost of contracting andpublic policies is more reasonable.In the forced contracting system, the biggest dispute is on the nature of the civilliability of violation of this system. There are mainly three various theories, the theory ofresponsibility for negligence of concluding a treaty, the theory of tort liability, and thetheory of independent liability. It is considered in the theory of responsibility fornegligence of concluding a treaty that the nature of the forced contracting obligationbelongs to the prior treaty obligation. The contracting counterpart will firmly believe thatthe contracting obligator will negotiate a contract based on trust of the laws. If thecontracting obligator refused to make a contract without valid reasons so that the thecredit benefit of the counterpart suffered from losses, the contracting obligator shall beliable for damages in order to protect the profit of the counterpart. From the view of thetheory of tort liability, what the forced contracting system aims to protect is not onecertain specific right of the contracting right holder, but one kind of profit. If thecontracting obligator infringed upon this profit, which should be considered as tort, theobligator shall be liable for damages. Say from the theory of independent liability, theforced contracting does not belong to any type of civil liability. The theory ofresponsibility for negligence of concluding a treaty and the theory of independentliability both have some defects, if we analysed from the point of constitution of the tortliability, we would be sure that the nature of civil liability of violation of the forcedcontracting belongs to tort liability.The Scholars have various understandings of the nature of civil liability of violationof the forced contracting, which leads to different views toward method of assuming civil liability. Some think it is only by the means of forcing contracting, some think ofcompensating for loss, others think both can apply.It is doubtless that the forced contracting obligation is the biggest limitation of thefreedom of contract, so that on the basis of protecting the lawful profit of the contractingright holder, it should be permitted that the contracting obligator has the right to refuse toreach an agreement under proper reasons, which include that the parties have the right tochoose the counterpart, the requirement of the parties to reach an agreement does notconform with the regulations or the public order and moral, the contracting request isbeyond contracting obligator’s contracting scope, time, area, etc and force majeure.