Contract Formation and Legally Binding Effect: a Study on Contract Formation in New Contexts
Date Issued
2014
Date
2014
Author(s)
Li, Jing-yi
Abstract
The thesis is on the application of traditional rules and the development of approaches of contract formation in new transaction contexts. Through analyzing the following four issues, the difficulties are pointed out when searching for the solutions of the issues from the modern practice under Taiwan and Mainland China civil code theory. Aiming at getting closer to the reality and improving the efficient transactions, the thesis uses the approach of comparative law for better solutions for those four issues in new transaction contexts.
First, the letters of intent. In many cases, the parties make written statement of provisional agreement during the months of years of negotiations. Such cases consider the legal effect of such statement. The problem appears to occur across all legal systems but the results are not necessarily exactly the same. However, such transactions usually involve a great amount of money. If the distinction in attitude to legal effect of the statement between the judge and the parties, the parties would suffer a great financial loss. According to analyzing the comparative law, the legal effect of the letters of intent should not depend on the names of them, but many other aspects like wording, open provisions, etc. All the circumstances in the contents and contexts of the statement should be taken into consideration to determine whether there was an intention to be bound by the parties.
Second, the gentlemen’s agreement. Such cases consider the denial of legally binding effect，and the key point is whether the parties have an intention to contract. The courts have made use of presumptions in this area. Generally, in a family or social setting there is a presumption that the parties do not intend to contract. In a commercial setting there is a strong presumption that the parties intend to contract. When the presumptions apply, the onus of proof shifts and the party who wishes to challenge the legal efficacy of the agreement must bring into evidence facets that rebut the presumption. One technique used to rebut the presumption in the commercial setting is the honor clause. In some developed industry, businesses have their own rules and disputes resolution with honor bound. In that case, the court should respect the parties. Besides, the courts should take all possible factors into consideration to determine the parties’ intention.
Third, the battle of forms. The cases are about the conflicts between standard form contracts used by two commercial entities. The problem should be divided into two parts: whether the standard terms are incorporated into the contract and whether there is a contract. The latter issue also involves which standard terms should be the content of the contract when there is such conflict. Referring to the comparative law, there are three approaches: “the First Shot Theory ”, “the Last Shot Doctrine” and “the knock-out rule ”. Actually, no matter in which approach, the conflicts between standard terms from two commercial entities do not affect the existence of the contract. Considering which terms should be the content of contract, “the knock-out rule” is a better solution.
At last, the contract formation online. Everything is the question of intention, both online and in the real world. The issue is to determine whether the seller online manifested their intention through the websites, the automatically-sent email, and the service clause. Besides, whether the seller could withdraw his intention when he set the wrong price on the website, and whether the payment by consumers would make the contract exist are two other issue in the discussion. The answer of those questions should be found case by case. However, the law should encourage the sellers online to manifest their intention clearly and without ambiguous, for protecting the rights of the consumers and improving the efficient transactions.
Subjects
契約成立
契約拘束力
意向書
君子協議
標準訂單表格之爭
網路契約
Type
thesis
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