On The Form Of Contracts

Under the influence of the principle of freedom of contract, traditional theories of contract law insists that the form of the contract should follow the spirit of freedom. In the area of contract form, freedom is the common phenomenon and enforcement is an exception. With the development of commercial transactions and social polarization, Freedom of contract form might leads to violation of substantial justice. Statutory forms of contract helps to ensure the security of transactions and the substantial justice of contract through the public authority’s involvement in contractual relationships. But the statutory form of contract is unable to meet the contracts’needs for transaction efficiency. The standardization of contract forms has a significant role on promoting the efficiency of commercial transactions. So, the standardization of contract forms is becoming a trend. The standardization of contract forms plays a limited role in ensuring the security of transactions. The combination of the standardization of contract forms and the separation of rights can easily lead to a financial risk. In order to prevent the risk, we should take the right measures in harmonization and simplification of contract forms, and make sure that the standardization of contract forms not only helps to the promotion of commercial transaction efficiency, but also helps to the security of commercial transactions.This paper can be divided into four parts:In the first part, I will mainly introduce the traditional theories on the contract form and point out some problems in them. The traditional theories think that in the area of contract form freedom is the common phenomenon and enforcement is an exception, Contracts can be divided into a written form, oral form and other forms. The contract form has many functions as well as providing the evidence. In commercial practice, there are some new phenomenons on contract form. It’s not so free when we choose a contract form. Contracts with a standardized form are widely used. The standardization of contract forms and the separation of rights are combined. These new phenomenons challenge the traditional theories.The second part points out that the statutory forms of contract is becoming a trend in contract form. The most fundamental determinant on contract form is commercial practice. The principle of the freedom of contract form is based on free capitalist economy and the theory of meaning. As the emergence of monopolies and representationalism, the freedom on contract form may result in substantial unfair in practice. Modern business practices have showed new characteristics. Transaction security, saving the transaction cost and substantial justice is becoming more and more important. The statutory forms of contract just meet these needs.The third part reveals a trend of contract form, which is the standardized contract forms are common in current commercial practice. Commercial transactions more emphasized on the efficiency of the transaction. The statutory forms of contract do not help for this. The standardization of contract forms realized the mass production of the contract, saved the transaction cost, improved the efficiency of the transactions, expanded the trading range through the harmonization and simplification. So, the standardization of contract forms becomes a trend.The fourth part discusses the problems caused by the standardization of contract form, and then gives some countermeasures. There are a lot of phenomenons of rights’ separation in commercial law. The combination of the standardization of contract forms and the separation of rights can easily lead to a financial risk. So, we should take the right measures in harmonization and simplification of contract forms.