| There are 11 expressions in seven articles in the contract section of China Civil Code,which involve "the purpose of the contract".In the practice of judicial adjudication,the validity,performance,interpretation and rescission of contracts also involve a lot of "contract purpose".As of January 17,2021,by using "purpose of contract" as the key word in the full-text search under "reasons",378067 search results involving "purpose of contract" in the judgment reasons were found in the "China Judgments Online".However,in the theoretical research of civil law in China,the research on the connotation and practical significance of the purpose of contract is very weak and still in its infancy.This paper includes two parts,the first part includes chapter 1 and chapter 2,researches the origin and connotation of the purpose of contract.The second part includes chapter 3,chapter 4 and chapter 5,researches the practical meaning and normative function of the purpose of contract in the interpretation of contracts,the validity of contracts and the termination of the rights and obligations of contracts.Chapter 1: the origin of the purpose of contract.In the middle ages,jurists firstly introduced the concept of "cause of purpose" from Aristotle’s philosophical theory to express the purpose of concluding contracts.Cause of purpose has normative function in the interpretation and termination of contracts;In modern French civil law,"reason" refers to the purpose of the parties to enter into a contract,which is divided into proximate cause and remote cause.,this distinction provides a theoretical reference for the study of the construction of the purpose of the contract.Since then,the French debt law reform abolished the concept of "reason" and replaced the legitimacy control function of reason with the purpose of contract;From the perspective of the development of the system of rescission of contract in German law,the essence of rescission of contract is the non benefit of performance,and the non benefit of performance is that the purpose of contract cannot be realized.According to the traditional theory,the purpose of the contract rescission system is to punish the debtor for not performing his obligation,but the new theory defines the rescission system as a system that allows the parties(mainly the creditors)who lose the interests of maintaining the contract to break away from the contract.In order to cope with this change in understanding,it is necessary to design the elements that is different from the traditional elements of contract termination,and the core of the discussed element is the concept of contract purpose.The choices of normative model of termination of contract in the uniform documents of civil law,common law or international contract law are all basically back to the contract purpose;The fundamental breach and non performance of contract in the unified documents of Anglo American law and international contract law are also the failure to realize the purpose of the contract in essence.In a word,from the perspective of cause of purpose,cause,relationship between termination of contract and purpose of contract,fundamental breach of contract,we can outline the theoretical development of purpose of contract.The presentation of the theoretical context of the purpose of contract also lays a theoretical foundation for further exploring the connotation of the purpose of contract and its systematic development path in the contract law.Chapter 2: the connotation of the purpose of contract.The concept of contract purpose itself has the dual connotation of subjective purpose and objective purpose,or dual structure.This dual connotation is also manifested in the purpose of contract and the motivation of signing contract,direct purpose and indirect purpose,basic purpose and further purpose,etc.The division of subjective purpose and objective purpose comes from the characteristics of the concept of contract purpose and the standpoint of subjective interpretation and objective interpretation of intention expression.The connotation of the purpose of contract in the contract is divided into three aspects,that is,the purpose of contract,as the motivation of the parties to the contract,mainly plays a normative role in the judgment of the validity of the contract,such as fraud,false expression of will,illegal reason performance,knowing and buying fake,and some acts against public order and good customs As the content of agreement,that is,the content and effect of performance,it plays a normative role in the fields of contract interpretation and obstacles to contract performance.China’s civil law theory and civil justice mainly understand and apply the purpose of the contract in the content and meaning of the performance of obligations,and endow the purpose of the contract with a strong objective color;but limiting the purpose of the contract to the objective purpose,that is,the content of the performance of obligations,can not explain some terminations of contracts caused by breach of contract,force majeure,change of circumstances,and the termination of related contracts.The purpose of contract is not only the motivation and content of signing contract,but also has the meaning of expressing the basis of transaction.If the purpose of the contract is defined as the transaction basis,the failure of the purpose of the contract will lead to the loss of the transaction basis and affect the existence of the contractual relationship.As the basis of transaction,the purpose of contract also plays a normative role in the fields of contract interpretation and obstacles to contract performance.On the whole,China’s civil law theory and civil justice have insufficient understanding of the purpose of contract as the basis of transaction.Chapter 3: the practical significance of the purpose of contract.The purpose of contract plays a decisive role in contract interpretation.The purpose of the contract can be found through the ways of meaning,performance behavior,contract type,nature of legal relationship and rules of experience.The purpose of the contract connects the subjective and objective interpretation of the contract,and it is the interface between the external norms of the contract.The purpose of the contract connects the internal agreement and the external norms of the contract,and it is the channel for the circumstances beyond the performance obligations of the contract to act on the contract.As the fundamental intention of the contractor,the purpose of the contract can play the normative role of discovering meaning,amending meaning and supplementing meaning.With the help of the radiation effect of the purpose of the contract on the terms of the contract,the purpose of the contract tests the vague meaning of the terms of the contract,eliminates the parts that are inconsistent with the purpose of the contract,eliminates the ambiguity,and finds and corrects the meaning.The purpose of the contract can be the "legal source" of the parties’ hypothetical intention in the supplementary interpretation of the contract.The hypothetical intention of the parties needs to be found through the purpose of the contract.Once the "purpose of contract" is derived,the contract specification that should be set can be inferred from the purpose of contract.When there is no specific agreement on a certain issue in the contract,it should be made up according to the inference of "contract purpose".In order to prevent the abuse of the interpretation of contract purpose,if there is no sufficient and legitimate reason,the conclusion drawn from the interpretation of contract purpose can not exceed the meaning boundary contained in the text of the contract.In addition,the interpretation of contract purpose should be filtered and tested by the basic principles of good faith,public order and good customs.The purpose of contract plays an important normative role in expressing the motivation of signing contract and judging the validity of contract.The essence of judging the legality of the purpose of a contract is to judge the legality of the subjective purpose of the contract,that is,the motivation of signing the contract.It is easy to infringe the security of transaction and freedom of will by examining the motivation of signing a contract,so the control of the motivation of signing a contract needs to balance the security of transaction and the protection of social interests.When Chinese courts judge the types of cases,such as fraud,legal form covering up illegal purpose,legal act not in accordance with the name,knowing false to buy false,illegal reason performance,violation of public order and good customs,judges essentially examines the motivation of the parties to sign the contract.Which kind of motive will be given the negative legal evaluation,in addition to adhering to the spirit of good faith,judges also need to evaluate the social moral concept,judges should limit the motive of signing a contract to the illegal or immoral purpose closely related to the content of the contract,the specific circumstances of signing the contract,and the results of the contract.judges should take the principle that the parties to the contract know the motive,but judges should have certain discretion space.Chapter 4: The purpose of the contract cannot be realizedⅠ.The failure to realize the purpose of the contract in the civil code exists in three forms: termination of the contract by force majeure,termination of the contract by breach of contract,and judicial termination(article 580 of the civil code).In the failure to achieve the purpose of the contract caused by breach of contract,the normative meaning of "failure to achieve the purpose of the contract" is the fundamental breach of contract.In terms of specific judgment criteria,Chinese judicial judgment essentially considers such factors as the relevance between the time limit of delay in performance and the realization of the purpose of the contract,the seriousness of the consequences of breach of contract,and whether there is possibility of remedy,and excludes the subjective purpose of the contract from the scope of the purpose of the contract caused by breach of contract.Because the concept of contract purpose is full of tension and flexibility,different types of contracts,different transaction modes lead to different judgments on the impossibility of contract purpose,there is no absolute and unified standard,instead,it is necessary to discuss the subject matter,content and non performance of debts of the contract.China’s Civil Code insists that the failure to achieve the purpose of the contract is regarded as the judgment standard of fundamental breach of contract,which is in line with the development trend of the theory and practice of the contract rescission system.The purpose of the contract in article 563(1)(1)of the civil code can be objective or subjective.The constitutive requirements and legal effect of article 563(1)(1)are different from that of article 533.If force majeure does not lead to the failure of the purpose of the contract,if it meets the constitutive requirements of article 533,it can be regulated by article 533.In practice,it should be judged primarily according to the claims of the parties.The second paragraph of article 580 of the civil code establishes the system of the parties applying for judicial relief after the contract is deadlocked,which is connected with the judicial practice.The judgment standard of the contract deadlocked is also that the purpose of the contract cannot be realized.The application scope of the impossibility of contract purpose in Chinese law is further extended to the system of termination of contract rights and obligations except for the legal rescission of contract,which marks the further improvement of the status of contract purpose in the judgment of termination of contract rights and obligations.In the judgment that the purpose of the contract cannot be realized in this article,we can also refer to the judgment that the purpose of the contract cannot be realized in the fundamental breach of contract.Chapter 5: The purpose of the contract cannot be realizedⅡ.There is no distinction in Chinese law between the realization of purpose and the impossibility of the realization of purpose.There are no clear norms for the realization and impossibility of the purpose in Chinese law.Many judicial decisions use the basic principles of civil law,such as the principle of fairness and good faith,to justify the realization and impossibility of the purpose.Judges have not yet found specific legal provisions outside the basic principles as the basis of claims.The realization of the purpose and the failure to realize the purpose can be included in the adjustment of the failure to perform,and articles 577 and 580 of the civil code can be applied.The frustration of contract purpose in common law is established in “the coronation of the king”,the applicable conditions of frustration of contract purpose are very strict,and the frustration purpose is subjective.Chinese judicial judgment mainly understands and applies the purpose of contract in the sense of objective purpose,there are obvious differences in the nature of the purpose of the contract between common law and Chinese law.Secondly,the scope of application of frustration of contract purpose in common law is different from the scope of application of the impossibility of the realization of purpose in Chinese law.In addition to force majeure and judicial rescission,China mainly applies to the rescission of contract for breach of contract.The unfulfilled purpose of contract is the core judgment standard of legal rescission of contract in China.The system of frustration of contract purpose in common law corresponds to the system of the change of circumstances in continental law,dealing with the change of circumstances after the establishment of the contract.China’s civil law theory and civil justice still have deficiencies in the cognition of the subjective purpose of the contract,which confines the purpose of the contract to the objective purpose,resulting in the lack of flexibility in the concept of the purpose of the contract and limiting the normative function of the purpose of the contract in Chinese law.In the case that the content of performance is closely related to the intention of performance and the intention of performance becomes the basis of calculation of the equivalence of performance between the two parties,it is necessary to evaluate whether the subjective purpose of the contract is realized or not. |
