事实契约理论研究

The study on“contract implied in fact”

事实契约理论的提出针对的是社会生活中大量存在的一般契约条款和强制缔约制度,主张排除当事人的意思表示,仅因事实过程而成立契约。这一理论与传统的“意思契约”理论是不相符的,因而受到批判。随着社会经济的发展和契约自由原则的衰落,在合同判断上重要的不再是当事人的真正的合意或意向,而是他们作为有理智的人被认为已经同意或预期的事项。合同从形式化的意志理论中解放出来,责任、激励、救济成为合同法研究的主题。对事实契约理论的解释力也需要重新认识。

The theory of“contract implied in fact”is brought out because of the existence of standard form contract clauses and the compulsory treaty-making institution.It advocates that only by fact can a contract be made without concerning the contracting par-ties' consensus in idem.This idea is different from the traditional contract theory,and is criticized by many scholars.Along with the development of society and economy,the doctrine of freedom of contract is not an absolute truth in contract law any more.To a con-tract,the most important thing is not the contracting parties' real consensus,but things they are supposed to agree as rational per-sons.The contract was released from formal will,duty,stimulation and remedy became subject of contract law.So we should learn the theory of“contract implied in fact”again for its ability to explain many cases.