Negative On The Theory Of ’Contract Implied-in-fact’

The ‘Contract implied-in-fact’ brought forth by Professor Haput in1941had beenreacted to strongly in Germany. The key of this theory lies on the way of reaching onecontract—the related parties may reach one contract only with actual course instead ofconsensus or intentions. Many Scholars hold that‘Contract implied-in-fact’actually exists inpractice, which shows more flexibility in dealing with related problems of19thcenturydemonstrates virtual justice. This article attempts to demonstrate that the theory of ‘Contractimplied-in-fact’ shall not be acceptable since it denies the self-autonomy in expression andshall be denied further.The five parts of this article illustrates as follows:Part One is the introduction, the domestic and external study summarize about this topicwill be detailed in this part.Part Two introduces the ‘Contract implied-in-fact’ theory and its development, whichdifferentiates from some other related concepts. The substance of the ‘Contractimplied-in-fact’ was also discussed in this part, in purpose of tiring and illuminating theviewpoints about the ‘Contract implied-in-fact’ theory.Part Three gives a brief introduction on the changing course of the theory which thecontractual effect lies on, mainly demonstrating us the keystone of that and the essential ofmodern contract law. The root theories in Ancient Rome, the Middle Age and voluntarism ofdifferentiate from the Civil Law and the Common Law. The root theories about contractualeffect in20thcentury have been especially emphasized. Finally, we find that all root theoriescan never replace voluntarism, which dominates modern contract law at the same time.In the Part Four, introduces how the modern contract law correct the justice of contractthe limited the liberty of contract, but the freedom of contract not real decline, voluntarismstill has explanatory power. The modern contract law is balance the law which not only payattention to the freedom but also pursuit the justice of contract.In the Part Five, the theory of ‘Contract implied-in-fact’ was completely denied by theauthor. Firstly, the social context breeding the theory has disappeared which makes it’s notavailable anymore; It’s not right for the theory of ‘Contract implied-in-fact holding that thetheory of contractual freedom has been declining, and the theory of contractual freedom wasstill made the core principle of present contract law; Secondly, as one theory of the civil law, the theory of ‘Contract implied-in-fact’ totally denied party autonomy,basing on compressingthe autonomy room of civil law makes it ‘lack of certain justness which a civil theory shalldemonstrates’ even though ‘it matches with the practice’. Thirdly, as to some who holds thatthe improved or re-explained theory of ‘Contract implied-in-fact’ can be acceptable, theauthor doesn’t agree on it; Fourthly, since the theory of ‘Contract implied-in-fact’s not betterthan traditional theory in solving related problems, it’s not acceptable in practice. Last but notleast, it’s hard to built up the theory of ‘Contract implied-in-fact’ while the theory ofcontractual freedom has not been brought forth long enough.To sum up, the author holds that the theory of ‘Contract implied-in-fact’s still the mostimportant principle in civil law even though much more new explanations about contractualeffect have existed with the development of our society, which means that the voluntarism hasnot been threw over at all. The theory of ‘Contract implied-in-fact’ totally abandons partyautonomy in the explanations for the contractual effect, thus it attempts to reach the socialjustness via compressing the autonomy room in civil law, which illuminates the deny to theself-rule principle in civil law. We shall not accept the theory of ‘Contract implied-in-fact’since it destroys the liberalism and individualism based on modern contractual theory, whichconflicts to the contractual justness and the related theoretic in civil law.