Basic Analysis On The Silence As Declaration Of Intention

When it comes to the research of Declaration of Intention, most of them focuses on the Express Declaration of Intention, not the silence. And the circumstances that silence as Declaration of Intention are escalatingly appreciated. On reflection, it’s necessary to do some research on silence itself and its rules of law. Silence is always shown as no language, no text, no sign, no action. And it differs from the Express Declaration of Intention; or Implied Declaration of Intention; or Intention Realization:or Supplementary Explanation. In essence, the silence is a special method of declaration of intention which with indirect of expression. So in principle, Silence or inactivity by itself cannot amount to declaration of Intention. But all rules of law are liable to exceptions, so the silence of one party can be interpreted as consent or refusal in the limited circumstances. According to the Singular or Plural nouns of behavior subject, the juristic act could be classified as twofold that include Unilateral Legal Act and Multilateral Legal Act. The latter could also be classified as threefold, Contract Act, Joint Act and Resolution Act. Silence may amount to parts of Unilateral Legal Acts, such as the Right of Formation, but only in negative silence. When it comes to the Contact Acts, silence could amount to acceptance and not to offer, because the offer is initiative in the technicality of contract formation. And its contents shall be specific and definite. Then the Joint Acts are a series of agreements such as Partnership Agreements and Company Promoters Agreements, which are effective based on the Consensus of All. So the silence could be negative legal consequence that amounts to rejection. In the Resolution Acts, silence of shareholder may be read as an agreement, a rejection or an abstention. So the silence couldn’t be construed as manifestation of will.The limited circumstances make the silence denotes acceptance or refusal. Both at domestic and abroad, the limited circumstances include the legal principle origin, prior express agreement of parties, requirements of the law and trading habits and so on.In fact, the laws count silence as Declaration of Intention because of breach of duty to explain or speak. The duty is based on the deep-seated theoretical basis that include the Political Philosophy, Economics, Legal Practice and Religious Theories. All above underlie the validity source of silence. For example, the economists often consider the transaction cost when they are ironing out problems. So some theory of Law and Economics construe silence as acceptance or declaration of intention would be more efficient, because requiring an explicit or overt acceptance raises the transaction cost of exchange. After the complex procedure of gaming, the Silence Rule was constructed in the form of civil presumption norm.There is a conflict between the scarcity of resources and the limitless of desires, So a rational individual take purposive action to satisfy his desires. Maslow’s hierarchy of needs describes the everyone’s needs into fivefold include the Physiological needs, Safety needs, Love and belonging, Esteem and Self-actualization. Then motivation occurs which triggers the purpose will. Silence as the declaration of intention should conform to the compound structure of general declaration of Intention. But it has different place what is the no direct observational expression. So we take the above reasons to remedy it. They endow the silence with the legal meaning instead of filling the blank. With the declining of the principle of autonomy and the rising of transaction security theory, the content of Silence Rule is changing, which should add other exceptions the international customs or International Practice. And we should change the unsuitable provisions, review and compare the Epistemology and the Axiology, then construct a suitable system for Silence Code which reflect in the following:Firstly, it should provide a general provision that include the three reasons and its prior application. Based on the many-faceted research, if the application of these reasons has Conflicts, the rule of prior application should be designed to apply the express agreement first, then the habits which must observe the Principle of Public Order and Good Customs but are different from the legal provisions, and the requirements of the law in the end. In the future, the quantity and quality of silence as the declaration of intention will be larger and its types will increase, which based on the Economic Globalization. Secondly, The Silence Rule, which treats the silence or inactivity as forms of expression, is in fact the last value rationality, not the logic rationality, so the good law should list a number of the exceptions and entitle the party which suffer from the presumption the right to rebut. And the right and good laws should set the methods and procedures of refute in its provisions. Thirdly, the special situations or limited circumstances could be about to change in different contexts and at different times. But those change are based on the change of theoretical basis, so the good laws should renew Silence Rule when the theoretical basis has changed.