On The Effect Of Article 51 Of Contract Law On The Right To Dispose Of Contract

The Article 51 of Contract Act is the first provision in legislation on the disposal contract concluded with no proper right. But there is still great divergence on the legal validity of the untitled property disposal contract. In general, there are three basic opinions: total null and void, validity to be confirmed and complete validity.The Jus Rerem Law of our county promulgated in 2007 has established a property disposal mode on the basis of the Doctrine of Compromise. Although this mode has distinguished the contract validity and the effect of real right change, there is still great controversy on the validity of untitled property disposal contracts resulted in the Article 51 of the Contract law.According to the facts that the Civil Law of our country has not adopted the Theory of Property Formalism and especially the Property Law has established a property disposal mode resulted from the compromise doctrine, this essay tries to make a comprehensive and deep interpretation about the Article 51 of the Contract law, the related provisions of the Property Law and the The judicial interpretation of the Supreme People’s court. Through all the work, this essay intends to illustrate the conclusion that under the circumstances of our legal system the untitled property disposal contract should be judged as valid.In addition to the Introduction, this essay consists of 5 chapters: 1, the introduction of the untitled property disposal;2,the legal analysis of the ‘disposal’ in the Article 51 of the Contract law on the basis of the Property Formalism; 3,the mode of real right change and the disposition with no right;4, the imperative choice of the validity of the untitled disposal contracts according to property change mode of our country; 5, the stance in judicial practice.The first chapter comprehensively discusses the concepts of “disposal” and ‘untitled disposal’. The meanings of the two are quite divergent under different legal backgrounds. In the legislation which distinguishes the acts of liability and disposition, the untitled disposal merely means the act of disposition, including the juristic act of real right and the Quasi juristic act of real right, but not the act of liability. On the contrary, the untitled disposal represents the act of contracts conducting which sets up the creditor-debtor relationship, such as sales contracts.The second chapter analyzes the fact that whether or not our country has adopted the Property Formalism. According to the limitations of this theory, from the basic legislative purposes o f the Contract Law and the Real Right Law, by comprehensively analyzing the mainstream views in the judicial circle, this essay gets the conclusion that our Civil Law doesn’t admit the property formalism.The third chapter analyzes the correlation between the modes o f real right change and the untitled disposal. There are 3 modes o f property change: the Doctrine o f Autonomy, the Property Formalism and the Compromise Doctrine. The legal validity o f the untitled disposal contracts differs under the basis o f the 3 modes. The property Law o f our country sets up the mode o f Compromise Doctrine, which has a great impact on the legal validity o f the untitled disposal contracts.The forth chapter comprehensively discusses why the untitled disposal contracts should be judged as valid in our country. Logically speaking, the legal validity is inevitable, because this judgment can not only protect the related third party in the contract, but also take the interests o f the right holders into consideration. Thus this is a result o f value judgment.The last chapter briefly introduces the main points o f views in deciding the legal validity o f the untitled property disposal contracts in judicial practices during different developing periods o f our country.