| In this essay, using the historical and comparative method, the author attempt to discuss the following two questions: firstly, the contract of sale, by itself, only has an effect of obligation (to transfer the title etc.) or directly produce the passing of property; secondly, the relationship between the passing of property under a contract of sale and the validity of the contract itself. The author doesn't attempt to focus on the argument of which legal structure of contract of sale is more reasonable. Instead, the true intention of the author is to explore the profound historical meaning of every pattern and to disclose its' respective reasonableness so as to stimulate a "tolerant" jurisprudence which can hold different points of view.In preface, besides the mention of the aforesaid two questions, the author emphasizes the importance of proper research methods. For the clarification an legal argument which has a profound historical details and totally different solutions between countries, the historical and comparative methods are absolutely necessary. In consideration of the fact that the construction of civil law system needs replantation of foreign law, the adoption of such methods not only has its theoretic importance, but also has its practical significance.In chapter one, the author has done a purely historical research. In the first section about the legal structure of sale in Roman law, the author has discussed the evolution of the legal modality of sale and has demonstrated the complicated relationship between such different modalities. Through the discussion of the legal structure of the consensual contract of sale, the author has given a clarification to the following two points: the consensual contract of sale itself produce only effect of obligation, not the passing of titles; the vendor isn't obligated to transfer the property to the buyer. These two aspects have a profound influence on the later worlds. In section two, the author has precisely discussed the legal structure of contract of sale in European Common Law. In chapter two, the author has respectively elaborated three modalities of the passing of property in the present world. Through the exploration of the historical basis of French law, the author concluded that the so-called consensualism is not in the mainstream of European legal tradition. In fact, it's a new creation under the background of the Revolution. At first look, the French system seems abrupt, however after the adoption of a series of supplementary and corrective regulations, it regresses to the tradition. The modality of causal transfer, from one part, recognizes the effect of obligation of the contract of sale, from another part, emphasizes the decisive function of the validity of contract of sale to the effect of passing of property. The author, through the detailed analysis of Swiss law, demonstrates the historical origin of this causal transfer system and its popularity throughout the world. As far as the modality of abstract transfer, the author has chosen a very special angle: disclosing the theoretical basis from the evolution of theory of cause. From this point of view, Savigny is not the starting point of the discussion of abstract transfer, to the contrary, he is near the ending point of a theoretic pedigree. Evidently, chapter two is the most important part of this essay.Chapter three is titled "two questions concerning the legal structure of contract of sale ". The first question discussed here is the validity of a contract of sale in which the vendor disposes of other's property. The author holds that the acknowledgement of the validity of such a contract of sale produces no difficulty. From this case, the author attempts to show the influence that the legal structure has given to a detailed rule. The second question refers to the intense relationship between the modalities of passing of transfer and the regulations of unjust enrichment (condictio) from Roman law to modern law.In consideration of the completeness of the use of the comparat... |
