| In building transactions,with the prices of building increasing,the droit person in order to obtain greater profits,defend the other,by no authority,to avoid the obligation of the contract.According to the provisions of the unauthorized agency,the owner of the building is the principal agent does not undertake the obligation to perform the contract,but at this time should protect the reasonable trust of the other party,to avoid the relative interests of the loss,by the unauthorized agent to bear the responsibility.When the subjective understanding of the counterpart person is different,the specific liability of the unauthorized agent is also.As for the discussion of this stipulation,some scholars think that this stipulation is "the loophole of law",but this view does not be agreed with.This paper is prepare to explain the kind,to explain the provisions of Article 3 and 4,in order to get a proper understanding of the specific provisions in the legal interpretation,so as to solve the problem of the identification and assumption of the liability of unauthorized agency in the judicial adjudication.The activity haven’t be authorized,the contract is valid except for the parties.By analyzing the two subjective cognitive states of the counterpart,"good faith" and "knowing or ought to know" are explained.Article 3 gives the bona fide counterpart the right to choose the liability without authority.According to the choice of the counterpart,the unauthorized agent should assume different liabilities.It is not necessary to over-interpret the two forms of liability as legislative loopholes,so as to deviate from the legislative purpose of this article.The scope of compensation for loss stipulated in paragraph 3 and paragraph 4 is different.The scope of liability undertaken by the unauthorized agent in paragraph 3 is the performance of interests,while the scope of compensation stipulated in paragraph 4 is still required to bear the liability to the counterpart,but the scope of compensation is limited to the compensation of trust interests.Linking the fault of the unauthorized agent with the scope of compensation for loss has only formal significance to protect the positive trust of the counterpart,so it is not necessary to take it into consideration. |
