The Discussions For Standard Items

Traditionally it is through negotiating individually to form a contract. The parties can decide the content of the contract. However, by the end of 19th century and the beginning of 20th century with the development of the society and economy, in order to adjust to the changes of a mass of dealings, a new method of forming a contract came into being. The method is different from what has been used, which forms a contract by standard items. In this method the other party has to accept all the items that are offered by one party. Almost no negations exist in forming a contract in this method, so the cost of forming a contract is saved, which is beneficial to the society. As we can see, however, the users of standard items often arrange interest unjustly in forming a contract by this method. The result comes from the method of forming a contract. However it is not the inevitable result but that the user misuses the liberty that the law endows. So in order to correct the disadvantage, we must intervene by legislation, judicature, administration and the society.The first question is the concept of the standard item and relevant problem. The analysis of any question needs a starting point. One Party study out items in advance in order to form a contract with others. The other party can only approve the items on the whole but not have leeway to consult further in principle. But what is standard item, what relations between the standard item and items of standard form contract, standard form contract? In author's view, it is necessary to distinguish distinctly. So proceeding from relevant view of the concept of standard item in this section, I will define the standard items firstly. On the basis of the definition I have distinguished the standard item and standard form contract, and standard form contract items and the standard item. At the end of this part, I also have described the characteristic of the form clause.The second question, the standard items are the bargaining terms that one party puts forward. Forming a contract with the standard items is different from concluding the contract in an ordinary way. In principle the other party only approve all the items, but can't bargain. In order to balance this kind of disparity of concluding a treaty status, our law set down some rules .In other words standard items being brought intocontract should accord to some rules. In this part, on the basis of distinguishing the consuming contract and commercial contract, I will discuss the rules from positive and passive respects.Third question, because of all kinds of factors such as language, understanding ability, etc. Contracts forming with the standard items also can appear phenomena of difference of understanding, ill-defined meaning, etc. So, after the standard items are included in the contract, we must explain it in order to confirm its meaning if above-mentioned problems have appeared. In this part, I think firstly, the explanation to the common contracts can certainly apply to the standard items in a situation not to conflict with explaining purpose. But the standard items are different from the ordinary clause after all, so in explaining, there must be one's own special rules. Therefore set out, I carry on the discussion on form explanation principle and rule of clause.The fourth question, concluding the contract with the standard items has economized the cost of the trade, raised the efficiency, met the development of social economy, but produced some questions at the same time. Certainly the formulation of these questions is less important, not inevitable, so long as we appropriately control the standard items, we can unquestionably accomplish " divided by its fraud ", revitalize its profit. "So, in this part, from four respects of legislation, administration of justice, administration, society, combined with the reality of our country, I will carry on the discussion of the controlling of the standard items.