On The Theoretical Basis,Conditions And Realization Path Of Incorporation Of Pre-Contract Promised

The traditional civil law theory holds that the content of the contract should be based on the contract text,and the external evidence should not be used as the basis to judge the relationship between the rights and obligations of both parties in principle.However,with the change of business environment,the convenience of information dissemination and access,in the field of consumer contracts and long-term trading occasions,there are a large number of promises outside the written contract text,which are usually expressed as The traditional civil law theory holds that the content of the contract should be based on the contract text,and the external evidence should not be used as the basis to judge the relationship between the rights and obligations of both parties in principle.However,with the change of business environment,the convenience of information dissemination and access,in the field of consumer contracts and long-term trading occasions,there are a large number of promises outside the written contract text,which are usually expressed as legitimacy and necessity to give its contract effect.As to the legal attributes of the prior contract promise,there are offer,invitation,unilateral promise,direct contract and implied clause in practice.Although the unilateral promise theory,the direct contract theory and the implied clause theory have their own legitimacy,the above theory is either lack of practical operation under the framework of our civil law system,or has certain limitations,or is the same as the offer theory,so it is not recoverable.The offer theory can cover all types of pre-contract promise occurring in practice and has logical self-consistency.According to the theory of contract,we can Mainland the reason theory of the law system,the contract theory of the common law system,the theory of promise prohibition and the rule of oral evidence.In reason theory,it is considered that an objective reason is a prerequisite for an act to be legally binding." Reason theory" excludes the absolute way of legal effect under pure will,only by the agreement of both parties.In theory,it is considered that the promise of mutual transaction inducement in the transaction is the basis for the enforcement of the promise.According to the theory of contract,we can Mainland the reason theory of the law system,the contract theory of the common law system,the theory of promise prohibition and the rule of oral evidence.In reason theory,it is considered that an objective reason is a prerequisite for an act to be legally binding." Reason theory" excludes the absolute way of legal effect under pure will,only by the agreement of both parties.In theory,it is considered that the promise of mutual transaction inducement in the transaction is the basis for the enforcement of the promise,so the former contract promise,which constitutes the inducement of the contract,should be given enforcement even if it is not entered into the contract text.The principle of prohibition of promise proves how an informal promise can be enforced on the basis of the trust of the promise,the core purpose of which is to protect the reasonable trust of the parties,which coincides with the inner spirit of the contract rules.For the rules of oral evidence,it applies on the premise that the written contract is an indivisible agreement.When the text of the contract is not the final or full expression of intention made by the parties to the contract on the transaction,it can play the role of modifying the contract,explaining and supplementing the contract as external evidence promised by the former contract.Because of the limitation of the adjustment scope of the relevant legal norms of the former contract promise,the uncertainty and harshness of the applicable standard,the court has no unified judgment benchmark for the disputes caused by whether the former contract promise should be entered into the contract,and the legitimate rights and interests of the promise can not be effectively protected.Therefore,it is an urgent problem to determine under what conditions the former contract promise can produce the contract effect.The conditions for the pre-contract promise to constitute an offer include having the necessary points for the establishment of the contract and the intention of being bound,and should be lenient.For pre-contract promise of non-contract type,the conditions of entering into the contract must mainly consider reasonable trust,the importance of the promise and the specific and clear three elements.For the path of the pre-contract promise to enter into the contract,in the pre-contract promise,the promise behavior of the relative person not only includes express,under certain conditions,it carries out certain behavior because of reasonable trust in the content of the promise,It can also be inferred that a contract concluded by promise should be regarded as an independent main contract.For the pre-contract promise of non-contract type,the dispute clause and contract loophole can be modified and supplemented by the route of contract interpretation.