On The Limitation Of The Right To Rescind The Entrustment Contract At Will

As a special legal right to rescind a contract,the right of arbitrary termination of a contract can give the right holder the freedom to terminate the contract at any time to realize the liberation of its obligations.It widely exists in a variety of typical contracts,including entrustment contract,contract contract,property service contract and so on.Among them,the right of arbitrary termination of the entrustment contract is the most typical and the most controversial.In the period of contract Law,the norm on the right of arbitrary termination of entrustment contract is relatively simple,neither distinguishing the type of entrustment contract nor defining the scope of compensation for losses.On the other hand,Article 933 of the Civil Code adopts the way of distinguishing between paid entrustment and unpaid entrustment,and the change of the content of the legal provisions actually reflects the legislator’s attitude of indirectly restricting the right of arbitrary termination of the entrustment contract.Based on this,the focus of academic attention is on how to reasonably limit the right of arbitrary termination and fairly define the scope of loss compensation.Restricting the right of arbitrary rescission is intended to realize the reshaping of freedom and the rebalance of interests,and to recognize the fact that the basic value transformation and legitimacy of the right of arbitrary rescission are gradually dispelled under some circumstances brought about by the development of market economy and the transformation of economic structure.make the performance of the contract return to the background of good faith and take the market order as the basis for performance.There are two ways to classify the restriction path of the right of arbitrary termination of entrustment contract,namely,explicit limitation and hidden limitation,intentional limitation and legal restriction."clear" and "hidden" are the expression of position,while "special appointment" and "legal" are the forms of effect,which can be combined with each other and have varying degrees of influence on the social relations they want to regulate.The choice of limiting path needs to take into account the differences in the allocation of factors in different entrustment contracts,comprehensively consider the compensation of rights,the reciprocity of obligations,the continuity of payment and the commercial nature of the contract,and respect the particularity of the contract.As a statutory limited path of damages,when applicable,we should distinguish the different scope of damages and allow some parties to exercise the right of termination cautiously,and should avoid confusing the liability for loss with liability for breach of contract and tort liability.it is more appropriate to define it as legal liability for compensation,and it is more appropriate to judge whether termination leads to the imbalance of overall interests according to the purpose attribute of the entrustment contract and the specific content of the contract.According to the legislative intent of Article 933,the cause of liability should be interpreted differently when determining the compensation for losses.As a special agreement to limit the path of intention,when the parties specially agree to exclude or restrict the right of arbitrary termination of the entrustment contract in advance,the arbitrariness of the norm of the right of arbitrary termination should be affirmed,the autonomy of will between the parties should be respected,and the parties should be allowed to make consultation arrangements for the exercise of rights,and the judge without special legitimate reasons shall not negate its effect.What is more special is that when both parties of the contract make an agreement on the matter of compensation,there will be a coincidence between the intended limitation and the legal limitation of liability.at this time,the purpose of the special agreement made by the parties should be considered,and the compensation agreement should be divided into compensatory and punitive nature.in order to avoid the alienation of autonomous rights,the system of liquidated damages can be used for reference when necessary to reserve space for judicial adjustment of the special contract between the parties.