Confirmation Of Consensus On Ambiguous Clauses In Contract

Consensus refers to the agreement reached by the two parties concerned.In business practices,whether the parties concerned can reach consensus determines whether the contract between the parties can be established or not.It is about judging the facts.There is another uncertainty: after the repeated discussions and negotiations between the two parties concerned,will the contract be established one-hundred percent sure? The answer is no.It is because that during the process of establishing a contract,due to various factors,there will be ambiguous clauses in the contract.At that time,we need to further confirm the consensus of both parties.But to confirm consensus is quite difficult.To address this issue,at least two requirements should be considered: the first is to find out what kind of terms should be included in the contract established by the parties concerned,that is to say,to confirm the scope of necessary terms for the contract;the second is to determine the method of confirming the consensus.In order to solve the aforementioned problems exactly,this paper takes the Contract Law of our country,related judicial explanations,and the national research fruits on two major legal systems into consideration.This paper discusses the nature and force of consensus,the value of confirming consensus and main methods to confirm consensus.In the Introduction,the research basis of this paper has been illustrated,including the perspective of the research,the current condition of related theoretical researches and so on.At the same time,based on practical cases,this paper studies the Contract Law of our country and other representative national laws,so as to figure out how to confirm consensus for the ambiguous clauses in the contract.On this basis,this paper points out that there hasn't been a uniform standard for confirming consensus,which is a rather difficult problem for issues of consensus in both theory and practice.In Chapter I,this paper mainly discusses the definitions of consensus on ambiguous clauses in contract.Through analyzing the theoretical research progress in the two major legal systems,the definition of consensus has been pointed out: whether the two parties concerned reach an agreement.Consensus is often regarded as the symbol of successfully establishing a contract.It is also the basic factor for a contract to be bonding.From the perspective of historical progress,no matter for Continental Law System or Common Law System,the study on consensus matters very much.The second part of this chapter discusses the significant relationship between contract terms and consensus.On this basis,it further points out that the contract terms should specify the rights and obligations of both parties concerned.However,in reality,things are not always perfect for both parties due to various reasons.Such imperfect terms which are different from expectations are called “ambiguous clauses”.In Chapter II,the causes of the difficulties in the determination of ambiguous clauses in the contract are discussed.There are mainly three aspects: the limited cognitive ability of the parties concerned;lack of the intention to balance interest;and limits on random laws and regulations.By referring to how such problems are solved in Common law system,Chapter III introduces the methods to confirm consensus on ambiguous clauses in contract in our country.It can be divided into four aspects: first,the categorizations of ambiguous clauses in contract should be specified.The paper points out that contract terms are of great importance in contract,and they are greatly related to consensus.Only if we look at the problem from the perspective of contract terms can we make further breakthroughs;second,the Usage of Trade should be applied to more areas.Even though it is applied somewhere,the Usage of Trade is not widely applied in our country.In this part,referring partially to the default rules in Common law systems,this paper illustrates that we should expand the application of the Usage of Trade;third,the application of compulsory laws and regulations.The paper pints out that the shortcoming of random laws and regulations leads to the formation of ambiguous clauses in contract.Therefore,we should strengthen the application of compulsory laws and regulations;at last,the thoughts of the parties concerned should be restructured.In case that the Usage of Trade and compulsory laws and regulations fails to form any consensus,restructuring the thoughts of the parties concerned can be a useful method for us to confirm the consensus on ambiguous clauses in contract.On the basis of analyzing ambiguous clauses in contract,consensus and related theories and by referring to effective methods in foreign countries,this paper has provided reference for judicial practice in our country in terms of confirming the consensus on ambiguous clauses in contract.These measures will facilitate the establishment of the contract and the transactions specified and solve contract disputes,which is vital for maintaining a good economic order.