On The Basis Of A Contract Binding

The binding of the contract is the starting point of this issue is contract law research. Thecontract binding at the root of the problem is asking "why can constrain the parties contract?"That is, the parties to a contract constraint is the theoretical foundation and basis of? This hastraditionally been one of the major issues of contract law history and reality. Since the19thcentury the "theory of contract will captain the basis of the contract binding, become abinding contract after the authoritative source, seems to be the problem is established. But lifeworld is far from complicated than we thought,"the will to contract theory" to the contractbinding basis the explanatory power of is a major challenge in the contemporary era. Theauthor believes that the contract binding the research of this problem, should be taken toexplain the path of a pluralistic values.Except the introduction and conclusion, the full text is divided into four chapters:The first chapter: the perspective of historical evidence in the back from Roman law tomodern contract law binding basis. This part of the contract binding the origin and evolutionis divided into three stages: period of Roman law, in the middle ages, since the19th centuryperiod of modern contract law. Looked at the contract on the Roman law concept, therelationship between contract and contracted, and the binding to each kind of contract basiswas investigated. On the basis of that the binding basis of Roman law of contract is strict legalformalism and type. Then, in the middle ages annotation and commentary how sent by reasonof law the term "contracted" dress, make the contract system from the strict formalism andstatutory type of bondage. Scholastic jurist after use of the philosophy of Aristotle, andThomas Aquinas on Roman law provisions in interpretation, formation theory. Since then, thelaw of contract for the first time get system, found the ethical basis for the contract bindinglaw predecessors: justice virtue and generous character. In the19th century, as a result of themodern rational spirit of law, to advocate liberalism and individualism for the theory of"contract" will eventually become the foundation of modern contract binding. But, the theoryof "contract" will produce has its profound political philosophy and economics foundation.With the development of capitalism, the economic crisis of social contradictions conflict,"thecontract" will bring the absolute theory of contract injustice problem increasingly fierce, so the"contract" will be trading contract, trust contract theory, the challenge of relational contracttheory and so on."Contract" will also be corrected in different extent.The second chapter: the civil law of the contract binding. Introduces the traditionalFrench forward and suffered criticism of the theory of objective reasons, to the modern theoryof subjective reason. Combination of French new wave of French contract law reform in21stcentury, mainly studies the causes in the reform of French contract law theory of the dynamic,especially reason theory in the reform process of the contract law in the definition, cause thepresence or absence of judicial judgment, cause lack of manners of sanctions creates newtheoretical results. In this paper: the new development of French reason theory catered to themodern contract law contract freedom and contract justice two value balance concept, basictheory of modern contract law binding has important reference value. In addition, is also astudy of Germany’s contract binding the foundation, from the nature of legal behaviorelements, on the basis of "law effect" on the definition of the juristic act was investigated.The third chapter: place the contract binding foundation investigation Anglo-Americanlaw system. Focus on British and American law of contract in the contract binding theorycharacteristic of the classic "theory of consideration". Introduces the consideration of threemeanings:"benefit-damage"-the "mutual consideration""wide generalization of thecontracting reason". In addition, also probes into the functions of consideration, considerationof applicable rules, reform theory of consideration. Think: consideration as an importantsource of Anglo-American contract law binding, has its important value. Estoppel principlejust about because of external supplement, rather than completely replace of considerationtheory. In addition, to solve the problem about because of the common law theory of harmfulreliance protection is weak, and the development of trust protection in the contract, in theUnited States, he established the trust contract, fowler protection theory, the trust as anindependent contract because, makes trust contract binding another basis.The fourth chapter: the construction of binding contract basis. The reason theory andbecause of theory is the outcome of specific national legal culture, is import to China, both forour country and there is not much value. Based on binding of the contract, our doctrinalexistence "the law gave said", law dual purpose pluralistic value such as a few theories. Afew of the doctrine of did not imagine so big. The modern contract law contract freedom andcontract justice the balance between the two values. Therefore, the contract binding baseddual effect should be accord with the law. In addition, in the judicial technology, can draw lessons from Anglo-American "intention of creating legal relations" presumption of evidencelaw tools, to judge at the edge of the law of contract behavior. Through the dichotomy ofcommercial agreement and the family society,\"the intention of creating legal relations" applyto practice in the edge contract defined, has the good judicial effect.