Research on Doctrine of Privity of Contract
|Course||Civil and Commercial Law|
|Keywords||privity of contract contract for the benefit of third party freedom of contract|
The thesis lists out the origin and historical development of the doctrine of privity of contract and investigates its role and status on the modern contract law. By means of comparing the doctrine of privity of contract with the corresponding systems of our national contract law and summarizing its true definition and due functions, the paper aims at pointing out the right attitude towards the doctrine of privity of contract taken by our national legislative policies and judicial practice. Besides the introduction and conclusion, the thesis is also made up of four chapters. The main contents of each chapter are as follows:Chapter One mainly states the basic principles of the doctrine of privity of contract, including three parts. Part one is about the concept of the doctrine of privity of contract. Part Two is about the relationship between the doctrine of privity of contract and contract parties. Part Three is about what are the exceptions of the doctrine of privity of contract. The thesis holds that doctrine of privity of contract means contracts come into effect only to the contract parties and the third parties must not assume any benefits or obligations of the contract. However, the exceptions of the privity of contract mean that the third parties should assume the benefits and obligations of the contract , in other words, the contract is efficient to both contract parties and third parties.The second chapter is mainly about the origin and modern developing history of privity of contract. Pointing out that privity of contract originated from the famous legal maxim—“Alteri stipulari nemo potest”, and analyzing the modern developing history of privity of contract in Continental Law System and Anglo—American Law System, the chapter comes to a conclusion that there are some similarities between the privity of contract in Anglo-American system and the relativitat forderungsrechts in Continental system. During its developing process, privity of contract is always accompanied by all kinds of exceptions. The third chapter is devoted to the discussion of the problems of privity of contract in its modern development. In the chapter, the author first makes an introduction of the modern development of the theories of privity of contract in Continental system and Anglo-American system, including the generalization of third party beneficiary contract, the French system of right of direct action, the German system of protecting third party by contract and the American system of third party beneficiaries of warranties express or implied. Then the author makes analyses of the third parties of the above modern contract laws respectively. Based on the analysis of the modern development of privity of contract, the chapter concludes that the existence of the third party in modern contract law does not lead to the subversion of privity of contract and the socialization of contract theories is limited.The fourth chapter primarily discusses the present state and future of China’s privity of contract. Based on the analysis of the theories and practices of China’s privity of contract and the comparative study of other nations’corresponding systems, the paper suggests that adhering to privity of contract, China should, according to the parties’intention, recognize the third party’s rights and obligations and should be wary and apprehensive in dealing with other third parties’, who exist by law but not by the third party beneficiary contract, sharing of the rights of a contract and directly asking a debtor for rights.