The Research On The Arbitrary Right Of Revocation

The arbitrary right of revocation is specified to protect the interests of the donor in our contract law,and belongs to the right of formation naturally.Integrity is the premise existence of arbitrary right of revocation,and free of charge is its foundation.So far,only the "Contract Law" of our country,"the Civil Code of Japan" and the"Civil Law of Taiwan" has set up the donor arbitrary right of revocation,mainly because the gift contract is said to be mining in above countries and region.In the countries that have not set this right such as Germany and U.S.A,to balance the interests of both parties,they always set the notarization as a special requirement to make gift contract effective.According to the 186th regulation of the "Contract law"of our country,arbitrary right of revocation must satisfy three conditions when exercised:firstly,the gift contract has been established legally and effectively;secondly,the right of the gift property must be transferred before exercising;thirdly,the exercise of the right is only limited to the general gift contracts.For the gift contracts about disaster relief,poverty alleviation and other social and moral obligation,once the contract comes into being,the donor loses the arbitrary right of revocation.Our law does not have any specific provision about how to exercise the arbitrary right of revocation.The interpretation to the law means that the holders transfer their intention to donee will be enough.Exercising arbitrary right of revocation makes donation behavior invalid retroactively.Namely,the donor will do not have to perform the gift contract any more.However,if the recipient has conducted some necessary preparation to accept the gift and at the same time the donor exercising his right,for the loss of trust,whether the donee have the right to ask the donor for compensation is a question worthy of our attention.About this,scholars of our country mainly have put forward two kinds of views.One is that the donor shall be the responsible to the contracting liability fault;another one is that he should overtake liability for breach of contract.Some scholars also have put forward that this kind of responsibility is a kind of fails to perform the liability for the debts.Although this kind of behavior is not the norm of market transactions,due to the provisions of the laws of conditions of cancellation right is relatively general,there is phenomenon that donors use the arbitrary right of revocation doing malicious donor and the loss of recipients basing on trust is difficult to be protected.In order to standardize the arbitrary right of revocation,I think that we should take the good faith as guidelines,apply the principle of prohibit abuse of rights to regulate malicious gift.If there is some loss to the relative person,we can consult the method of the promise of estoppels and make the donor liable for the damage.For the calculation of compensation,we can refer to the rules in the "American Contract Law" concerning calculation method of reliance interest.