On The Meaning Of Separation

This essay consists of three parts: the definition of "abhanden gekommene Willenserkl?rung",the legal effect of "abhanden gekommene Willenserkl?rung" and the summary.The first part is the introduction of "delivered",including the concept,the essential factors and the functions of "delivered".The difference between "abhanden gekommene Willenserkl?rung" and ordinary one is that "abhanden gekommene Willenserkl?rung" occurs the lack of ideographic man's meaning.The study of "delivered" lead to the study of "abhanden gekommene Willenserkl?rung".Scholars believe that consent must be delivered with ideographic man's meaning.The meaning expression,which is without the acceptance of the intention of the other,is delivered when send out by ideographic man completely and finally.The meaning expression,which need the acceptance of the intention of the other,"delivered" is a way to send expression and under normal circumstances the ideographic man can know the its arrive.The important of "delivered" reflect on functions of it: improve the ideographic man has the final meaning expression;judge the time of the ideographic man's civil capacity;judge the time of error's time;prepare for arriving.What follows in the passage is typical cases to illustrate the meaning of "abhanden gekommene Willenserkl?rung".A received an offer from B.Then A wrote a letter to B to accept the offer.In order to think more about the offer,A didn't send out the letter immediately.A's wife saw the letter on the desk and helped A to send out the letter with misunderstand.When B received the letter,did the contract between A and B have the legal effect? How about the sender was the other member of family or a friend or the housekeeper instead of the wife at home,or the secretary at company? There might even be the burglary stealing the belongings with the letter and send it out.The meaning of "abhanden gekommene Willenserkl?rung" is different from misinformation,apparent agency or unauthorized agency.The distinguish between these concepts can be useful to illustrate the concept of "abhanden gekommene Willenserkl?rung" more clearly.The second part analyzes the legal effect of "abhanden gekommene Willenserkl?rung".Firstly,this study presents the disagreement in the fields of "abhanden gekommene Willenserkl?rung".About whether the "abhanden gekommene Willenserkl?rung" is established,the disagreement can be summarized as three points: one is whether the ideographic one with legal responsibility has the influence on the establishment of "abhanden gekommene Willenserkl?rung";the other is whether the meaning of behavior is still a necessary part to "abhanden gekommene Willenserkl?rung";the third is what is the principle to judge the imputation is true.In the aspect of the compensation for the "abhanden gekommene Willenserkl?rung",there are two views: one is whether the ideographic subjective state is the constitutive element of compensation for damage.Based on the "German Civil Code" 122 nd rule,compensation for damage is no relationship to the ideographic subjective state.But in term of Culpa in contrahendo to protect the interests of contracting negligence,the ideographic subjective state should be charge,which narrows the applicable situations.The other is the scope of compensation for the interests is reliance interest or performance interest.The "German Civil Code" 122 nd rule presents that compensation for damage is reliance interest and to protect the reliance interest,the compensation shall be decided according to the type of Culpa in contrahendo.Therefore,we have to think that "abhanden gekommene Willenserkl?rung" is similar to which type of Culpa in contrahendo.Then,this study discusses results of different theories and Chinese law via three kinds of case type after presenting the reason for case discussing.The first case is type A(husband)received an offer from C.Then A wrote a letter to C to accept the offer.In order to think more about the offer,A didn't send out the letter immediately.B(A's wife)saw the letter on the desk and helped A to send out the letter with misunderstand.When C received the letter,did the contract between A and C have the legal effect? The second type is A(manager)received an offer from C.B(A's secretary at company)helped A to send out the letter with misunderstand.The third one is A(husband)finishing the letter at home.While the burglary stolen the belongings with the letter and send it out to C.The paper also analyzes the solution to these three case types according to German civil law and Chinese law.There are three main solutions in German civil law.The first one is to emphasize self-determination of the ideographic man.While the meaning of action is the necessary element of “Willenserkl?rung”,there still be two kinds of situations according whether the ideographic one has legal responsibility.In the first case,the issue can be attributable to the ideographic man and “Willenserkl?rung” take effect which basis on Imputation subject.The expression can be revoked,based on the "German Civil Code" 122 nd rule to be liable for damages.In the second one,the issue can't be attributable to the ideographic man,“Willenserkl?rung” is false for the absence of key component.The ideographic man doesn't have responsibility for the other,without revoking the expression.The second one is reliance responsibility.“Willenserkl?rung” do not take effect according to the viewpoint of Canaris.When the state compliance with constitutive requirements of reliance responsibility,the ideographic man must bear damages on the basis of "German Civil Code" 122 nd.The third one is risk imputation.Under this theory “Willenserkl?rung” divides into two parts: man can launch law meaning from the perspective of objective and rational recipient and the ideographic man may be liable according to the principle of risk.When the ideographic man meets the requirements of the above elements,“Willenserkl?rung” take effect.Besides the ideographic man can revoke and balance the compensation according to "German Civil Code" 122 nd.This study analyzes the results of different theories in Chinese law through discussing different cases.The first one is the analogy of major misunderstanding.The second is the analogy of apparent agency and the third one is the analogy of communication error.The analogy of major misunderstanding give the ideographic man the right to revoke,which matches with “General principles of civil law” 59 th and “contract law” 54 th.According to Culpa in contrahendo,the ideographic man must give compensation.The analogy of apparent agency applies to expression which takes effect.It matches with “contract law” 49 th.One of the results is that the principal shall bear civil liability for the agent's acts of agency.The analogy of communication error is inappropriate because there is no active intervention of the ideographic man in "abhanden gekommene Willenserkl?rung".Provision of explaination of “General principles of civil law” 77 th is not comprehensive.Scholars generally believe that the legal effects of communication error and error are the same.And in practice communication error is classified into major misunderstanding.But the double analogy in this solution is undesirable.The third part is summary chapter."abhanden gekommene Willenserkl?rung" is in part of "delivered" and it is substantially a defective "delivered" without ideographic man's agree.Could "abhanden gekommene Willenserkl?rung" be identified as real “Willenserkl?rung”,and is there any different way to solve compensation problems,they are all meaningful."German Civil Code" provides reference to us,how to balance the freedom of expression with the guarantee of reliance interest.