On The Fair Standard Of The Validity Of Contracts

Although contracts contain the unfair clauses as norm, the modern contract lawholds that contracts should be performed regardless of unfairness. With the thought offairness booming, laws had paid attention to the way to identifying the validity of thecontract through the fair clause in many countries since20th century.Unconscionability system is one of the fair standards of the validity of contracts. Thisarticle aims to explain how fairness of clauses impact on identifying the validity ofcontracts to sort out the fair standard, and to improve the system on the basis ofanalyzing the unconscionability system in China.In addition to the introduction and conclusion, this article is divided into fourmain parts:“Freedom to fairness: the value change of contract law”,“Fair as thelegislative mode of standard of the validity of contracts”,“Unconscionability systemin China and its evaluation” and“The specific standards of unconscionability”.Chapter Ⅰ discusses the influence of fair ideas to standard of the validity ofcontracts in social changes firstly. Then I discuss the substance of the fair standard ofthe validity of contracts, its relationship with traditional standard and how to dealwith its relationship with the the principle of freedom. Freedom is always the core ofprivate law and should not be replaced by fair, so the appliance of fair standardshould bases on the principle of freedom and be used carefully.Chapter Ⅱ introduces three typical patterns of the fair standards of the validityof contracts: the very loss rule in France, the exorbitant profiteering system inGermany and the Anglo-American doctrine of unconscionability. Then I analyze andevaluate the three patterns on the basis of analyzing the theory of value.Chapter Ⅲ relates to the discussion of the standard of unconscionability inChina, which includes the guiding Principle of unconscionability, the legislativemodel of unconscionability in China and its relationship with other rules. I try toimprove the system to several rules as the principle, the basic standard and thespecific standards of unconscionability and define the basic standard. Chapter Ⅳ mainly discusses the substantive standards and the proceduralstandards of the specific standards of unconscionability. Typical situations andproblems that require attention in three constitutive requirements are analyzed in asmuch detail as possible, to help the judicial practice more conveniently.