Many principles controlling the modern western civil law, such as consideration, prescription and capacity, have taken shape in history. This paper, from a historical perspective, explores the logic and rationale behi...Many principles controlling the modern western civil law, such as consideration, prescription and capacity, have taken shape in history. This paper, from a historical perspective, explores the logic and rationale behind Chinese common law by focusing on the formation of contract in the Qing Dynasty. The first section shows that in the Qing Dynasty, the delivering of the subject matter was a basic requirement to form a loan contract between two parties. However, an agreement for transferring the item in advance worked as a consensual and bilateral contract, and the aggrieved party could ask for compensation or contractual fine or retain the deposit when the other party broke the contract. The second section argues that in the Qing Dynasty, the writing of a loan contract （Shuqi） is not a contract in and of itself, but is only one of the forms of contracts. The writing worked as the primary evidence of the existence of a contract. In the third section, the requirements of consideration and prescription are used to understand the practice of civil trials in the Qing Dynasty. Back then, when the loan contracts provided by two parties entailed some defects, the judges would adjudicate a loan dispute on the basis of consideration, with an assumption that people acted in their own interest and only in this sense were their acts rational. The judges could also identify the right（s） of parties due to the lapse of time. The fourth section argues against the view that equality was not used as a principle to form civil contracts in Chinese history. In Ancient China, there was indeed inequality between officials and laymen and within family or clan. However, in the Qing Dynasty, the different social status of the parties had little to do with the formation of contract. The restrictions for junior individuals （e,g, beiyou） to dispose his family property were actually restrictions on their capability instead of limitations on his capacity to enjoy private right or to have private obligation.展开更多
文摘Many principles controlling the modern western civil law, such as consideration, prescription and capacity, have taken shape in history. This paper, from a historical perspective, explores the logic and rationale behind Chinese common law by focusing on the formation of contract in the Qing Dynasty. The first section shows that in the Qing Dynasty, the delivering of the subject matter was a basic requirement to form a loan contract between two parties. However, an agreement for transferring the item in advance worked as a consensual and bilateral contract, and the aggrieved party could ask for compensation or contractual fine or retain the deposit when the other party broke the contract. The second section argues that in the Qing Dynasty, the writing of a loan contract （Shuqi） is not a contract in and of itself, but is only one of the forms of contracts. The writing worked as the primary evidence of the existence of a contract. In the third section, the requirements of consideration and prescription are used to understand the practice of civil trials in the Qing Dynasty. Back then, when the loan contracts provided by two parties entailed some defects, the judges would adjudicate a loan dispute on the basis of consideration, with an assumption that people acted in their own interest and only in this sense were their acts rational. The judges could also identify the right（s） of parties due to the lapse of time. The fourth section argues against the view that equality was not used as a principle to form civil contracts in Chinese history. In Ancient China, there was indeed inequality between officials and laymen and within family or clan. However, in the Qing Dynasty, the different social status of the parties had little to do with the formation of contract. The restrictions for junior individuals （e,g, beiyou） to dispose his family property were actually restrictions on their capability instead of limitations on his capacity to enjoy private right or to have private obligation.
