"Freedom Of Contract" In Ancient China: Review Based On Text And Practice

Although there was not the concept of"freedom of contract"in ancient China, a lot of historical materials preserved today indicate that the expression and practice of"contract of freedom"existed not only in the official legal institutions, but also in the civil contractual practice and judicial practice. At the same time, we also note that because of the political, economic and cultural characteristics of the ancient Chinese society, there were obvious differences on the"freedom of contract"between the official and the civil. On some occasions, there existed evident conflict and game between freedom and regulation. We cannot help to question that there surely was"freedom of contract"in ancient China, but it is what reason that led to the result that the"freedom of contract"of ancient China could not become the dominant idea and fundamental principle of contractual law and practice. What was the form of"freedom of contract"in ancient China? What was the limit of"freedom of contract"in ancient China? Which factors restricted and affected the"freedom of contract"in ancient China? The thesis begins discussion about the"freedom of contract"in ancient China based on the thinking about the above questions.The thesis is composed of five chapters.Chapter 1, brief historical review to the development of"contract"in ancient China. In this chapter, the development of"contract"in ancient China is divided into three phase: pre-appearance of the character, offspring appearance of the character and the development beginning from Dongjin Dynasty. From the perspective of modern civil law, a contract exists wherever the exchange of goods or a deal exists, no matter whether the people consciously recognized it as oral contract or written contract. Thereafter, there is contract in this society, and the history of the development of contract just begins. Based on historical materials, the people in ancient China had recorded their contractual lives by instruments such as sticks or bamboo pieces before the character appeared. The early phase of the development of contract in ancient China is from Xizhou Dynasty to Dongjin Dynasty. In this phase, the people explicitly distinguished from types of deals and used different"contract"words such as"zhiji","fubie"and"shuqi". In addition, they paid attention to the requirements of form of the formation of a contract. From Dongjin Dynasty, there happened some changes in contractual words and requirements of formation because of the intervention of public power. The state began to take taxation based on deed, and thereafter there was a distinction between red deed and white deed.Chapter 2,"freedom of contract"in the legal institutions of the state. Firstly, the author positively discusses"freedom of contract"in the legal institutions of the state. In order to protect the people's"freedom of contract"such as freedom of contracting or not, freedom of choosing the other party and freedom of determining the type of a contract, the law prohibited some actions, such as compulsory deal, running up or driving down the price, and disturbing other's bargaining. Secondly, the author especially discusses the legal status of private deed in the viewpoint of the official based on different functions of the contract of sale and the contract of loan. With regard to sale of specific type of goods, the state did not recognize the private deed to be valid. Because the state looked on this type of contract of sale as an important tool of taxation, and took taxation based on deed, it provided that the red deed is crucial to the sale of specific type of goods. As far as contract of loan is concerned, the state regarded it as an important tool of civil affairs and provided different management rules based on loan with interest and loan without interest. The state did not require the parties to make a red deed, and a private deed was recognized by the official. Finally, the author analyses the legal restraints to"freedom of contract"in the subject, content and form of contract.Chapter 3,"freedom of contract"in the civil contractual practice. Firstly, based on a representative case——the contractual life of Zuo Chongxi, the author analyses the embodiment of"freedom of contract"in the civil contractual practice. Secondly, the author describes the expression and practice of"consensus between the parties". In different periods, there were different ways of expressions about"consensus between the parties"such as"making deed based on consensus between the parties","be willing"and"volunteer to", which sufficiently stressed the freedom of will of the parties. At the same time, there appeared the term"the parties negotiate face to face"that focused on the equal status of the parties in the contract. There is close relationship between the term and protection for the freedom of will of the parties. Thirdly, in the civil contractual practice, the existence of the preemption of relatives and neighbors means some restraints to"freedom of contract". The author especially discusses the historical evolution, causes and conditions of adaptation of the preemption of relatives and neighbors. Finally, the author analyses the game between the civil"freedom of contract"and the regulation of the state on the whole. On the one hand, the relationship between the civil contract and the law of the state reflects the game; on the other hand, remitting civil debts by the state and the appearance of the article of resisting the interference from the civil indicates the game.Chapter 4, respect and interference to"freedom of contract"from the judicial practice. The author analyses the judicial attitude and trial skills of the official on the contractual dispute. Taking economic cost, notion and human sentiment into account, the judge's attitude towards the contractual disputes was"appeasing litigation"and"no litigation". Meanwhile, they paid attention to the reality of content and form of the contract in trial skill. Then, the author discusses the respect and interference to"freedom of contract"from the judge in the judicial practice. On the one hand, they prohibited the compulsory deal; on the other hand, they interfered with"freedom of contract"based on the thought of equalization and pity for the weak.Chapter 5, cultural interpretation of"freedom of contract"in ancient China. The author interprets"freedom of contract"in ancient China from the perspective of institution and culture. Firstly, the author analyses the relationship between the notion of family and"freedom of contract"in ancient China. On the one hand, the independent subjective qualification of the head of a family in ancient China is crucial to"freedom of contract". They were equal, and there was no class relationship among them, so they could make contracts liberally, and there was not the matter of will compulsion resulted from the class relationship among them; on the other hand, the right owned by some people of special identity such as relatives and neighbors actually affected"freedom of contract"in some degree. Secondly, the author discusses the relationship between intermediary, broker, guarantor and"freedom of contract". On the one hand, they had both positive and negative impact on making a contractual deal; on the other hand, they provided protection for the performance of contract. Finally,"freedom of contract"in ancient China was deeply affected by the notion of"emphasis on righteousness and contempt for interest". In the viewpoint of the official, the reciprocal characteristic of a contract should be replaced by its characteristic of mutual aid, and especially the authority respected and praised the action of remitting debts.Above all, in ancient China, it is not only in the legal institutions of the state, but also in contractual practice and judicial practice that existed"freedom of contract". The conclusion is not based on subjective judgment, but a result from empirical analysis and historical review."Freedom of contract"in ancient China was greatly embodied in the relationship between the civil freedom and the regulation of the state that was the core of the matter of"freedom of contract"in ancient China. In the legal institutions of the state, in order to protect the people's"freedom of contract"such as freedom of contracting or not, freedom of choosing the other party and freedom of determining the type of a contract, the law prohibited some actions, such as compulsory deal, running up or driving down the price, and disturbing other's bargaining. In contractual practice and judicial practice, they all put attention to the"consensus between the parties"and prohibited the compulsory deal."Freedom of contract"in ancient China has its own character. On the purpose of management, the dominator took a lot of measures to manage the contract. However,"freedom of contract"still came forth in ancient China. People used some articles to express their thirst for freedom, such as"the effectiveness is same between the private deed and the institution","the private deed is valid between the two parties","the officials should obey the institution, but the people should obey the private deed"and"if there is an absolution afterwards, it doesn't affect this one". Based on the center of freedom and regulation, the thesis outlines and analyzes the form and internal reason of"freedom of contract"in ancient China.