Discussion On The Contract For The Benefit Of Third Party

“alteri stipulari nemo potes”,as a traditional principle of Schuldrecht, is widelyobserved by civil law countries and common law countries. In principle, rights andobligations set by the contract can only restrain the contractors. Nevertheless, in themodern countries, the principle of “Relativitat Forderungsrechts” has gradually beenbroken in legislation and judicial practice and exceptional rules have been stipulated.Many countries have established the legal system of “Contract for the benefit of thirdparty” in the field of “contract law” to satisfy the need of the society development andsolve new legal issues. The breakthrough of this kind of system, except that the thirdparty of the contract is entitled according to the contract, but also the transactionalefficiency is promoted, the cost of transaction is reduced and the benefit of third partyis protected.The Civil Law and the Contract Law of China is lacking in general regulations of“Contract for the benefit of third party”. Article64of Contract Law “Where theparties prescribed that the obligor render performance to a third person, if the obligorfails to render its performance to the third person, or rendered non-conformingperformance, it shall be liable to the oblige for breach of contract” is regarded bysomeone as “Contract for the benefit of third party”, which is argumentary. Differentopinions are raised by many scholars. Some of them definite the “article64”as“Contract for the benefit of third party” and, on the contrary, some of them definitethe “article64”as “delivery by the indicated”. Cases of “contract for the benefit of third party” are frequently occurring in real life like trust, insurance, chain businessetc., as typical. The existence of these controversies and the indistinct legislation aregoing against solving the real issues and the construction of a sound legal system ofour country. It is very necessary to probe into the “Contract for the benefit of thirdparty”.This paper is divided into four chapters to discuss “Contract for the benefit ofthird party”.Chapter1: Different understanding of the concept of “Contract for the benefit ofthird party” which concludes the content of the contract. Duing to the breakthrough ofthe principle of “Relativitat Forderungsrechts”, it discusses the principle of“Relativitat Forderungsrechts” of common law system and civil law system and thenecessities of “Contract for the benefit of third party” are further discussed.Chapter2: Duing to the indistinct concept of “Contract for the benefit of thirdparty” in theory and in practice, this chapter is aiming to compare the similar conceptof “delivery by the indicated”，“Delegatio nominis” and “assumption of debtredemption” to make clear the main features of “Contract for the benefit of thirdparty”.Chapter3: It discusses the composing conditions of “Contract for the benefit ofthird party”and the efficacy on obligee, obligor and the third party throughconstructing the systematic structure of “Contract for the benefit of third party”referring to matured experiences of legislation and theory perspective.Chapter4: This chapter discusses the present situation of legislation andconceiving improvement. There is no general regulations of “Contract for the benefitof third party” and this chapter is aimed to probe into the spirit of64th article of“Contract Law” through discussing and analysis of the article. The system of“Contract for the benefit of third party” should be added into the civil law in thefuture and satisfy the practical need of presence through many other ways like judicialinterpretation.