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Concept of contract establishment |
| 2009-9-22 17:00:56 来源： 编辑： |
I Concept of contract establishment
Contract establishment means that contracts are regarded as objective existing facts by law because the contracts are in line with certain key factors. In the perspective of law, contracts are not treated as objective existence unless the contracts have legal or agreed structural key factors. Otherwise, the contracts will not be regarded as existing facts. This is an issue of fact judgment. 【1】
The concept of contract establishment shows that contract establishment shall have certain elements, which generally including the following:
1 Subject key elements
Establishment of any contract needs two or more parties that have legal capacity for private rights and capacity for civil conduct. A contract is a legal conduct of two or multiple parties, so the subject key elements of a contract need two or more parties involved in contract. If there is only one party, there cannot be any contract no matter how many people there are in this party.
2 Subjective key elements
A contract requires two or more parties of the contract to reach acceptability about the terms of the contract. “Joint meaning” originates from Roman law. It means that the internal meanings of the parties in the contract are the same. Otherwise, the contract is not acceptable. For example, in Roman law, a mistake is not a reason to cancel a contract. It is one of the factors that deny the establishment of the contract. 【2】There are two modes in the theory of German civil law to differentiate “joint meaning”: a) “Heart-felt” meaning; b) “Meaning of meaning expression”. The Contract Law of our country adopts the second mode. It means, if the external expressions of the parties are the same, the contract is recognized, no matter whether or not the true meanings of the parties are the same. Meidicuz pointed out: “It is meaningful to differentiate legal conduct and meaning expression only when a legal conduct is established under the condition that it must have several meaning expressions, such as when a contract is signed. The establishment of a contract must have two effective expressions of meaning, namely ‘offer’ and ‘acceptance’. ”【3】 Therefore, joint meaning of the parties is an important mark of recognition of contract and the meaning of one party only cannot set up a contract.
3 Objective key elements
In addition to the key elements mentioned above, establishment of some contracts needs some other conditions. For example, article 32 in the Contract Law of our country stipulates: “Where the parties conclude a contract in written form, the contract is established when both parties sign or affix a seal on it.” Article 33 stipulates: “Where the parties conclude the contract in the form of a letter or data-telex, etc., one party may request to sign a letter of confirmation before the conclusion of the contract. The contract shall be established at the time when the letter of confirmation is signed.”
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