当前位置:首页 >

Zhu Guangxin: Written Form and the Formation of Contract

In principle, a contract takes effect at the time of its formation. The formation of a contract is a decisive procedure that determines whether and when the contract is legally binding. In addition to making specific provisions on the contracting mode of “offer-acceptance”, the Chinese Contract Law also establishes some special rules for the formation of contracts that should be concluded in written form, namely “the contract is formed when both parties sign or affix a seal on it” and “if one party has performed its main obligation and the other party has received it, the contract is formed”. Systematically speaking, these rules not only have obvious defects in legal theory, legal logic and normative system, but also lead to such undesirable contracting phenomena as “reverse signing” of contract and trading opportunism in transaction practice. The main causes of the legislative defects are the lack of deep and systematic understanding of the relationship between freedom of contract form and form coercion, the normative significance of signature or seal, the constituent elements of statutory written form, and the legal consequences of non-compliance with written form. It is necessary for the Title of Contract in the Chinese Civil Code to construct a new normative relationship between written form and contract formation.