Introduction:
A contract is an agreement between the parties to establish, change and terminate the relationship between creditor's rights and debts. Article 12 1 of the Contract Law determines the principle of liability for the relativity of contracts. The relativity of contract here, also known as the relativity of contractual relationship, is one of the important characteristics that distinguish contractual relationship from other civil legal relationships. The traditional theory of contract relativity holds that the contract only takes effect between the parties to the contract and does not take effect on the third party outside the contract; The parties to a contract shall not agree on matters involving the interests of a third party in the contract, and neither party shall have rights and obligations with a third party, otherwise the contract shall be invalid. However, with the rapid development of modern market economy and the unprecedented prosperity of commercial trade, it is increasingly difficult to balance social interests and reflect judicial justice by strictly observing the principle of relativity of contracts. Social and economic life puts forward new requirements for the social function of contracts. [1] In order to meet the needs of reality and improve the efficiency of social and economic operation, all countries have expanded the scope of contract effectiveness to a certain extent, which is manifested in legislation and judicature. The scope of the third party affected by the validity of the contract is getting wider and wider, and the principle of relativity of the contract is gradually impacted. There have been many exceptions to the relativity of contracts, which some scholars call "the breakthrough of the relativity of contracts". This paper will discuss the historical evolution and breakthrough performance of contract relativity.
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First, the historical evolution of the relativity of contract
There is no unified theoretical explanation for the principle of contract relativity. At present, the authoritative explanation is the definition given by Mr. Wang Liming: the relativity of contract means that the contract is legally binding mainly between the specific parties to the contract, and only one party to the contract can make a request or bring a lawsuit against the other party based on the contract, but not a third party who has no contractual relationship with it, nor can it set contractual obligations for the third party without authorization. Contract creditor's rights are also mainly protected by contract law. In the civil law system, the relativity of contract originates from the theory of "relativity of debt" in Roman law, which holds that debt is a legal relationship in which one party requests the other party to pay, and creditor's right is a claim that can only take effect on a specific person. The characteristic of this particular obligee asking a particular obligor to do or not to do a particular act is "the relativity of debt". A contract is a form of debt. Therefore, as far as the scope of validity of the contract is concerned, the main meaning of this principle of relativity is that the contract only takes effect between the parties to the contract and does not take effect on the third party outside the contract; The parties to a contract shall not agree on matters involving the interests of a third party in the contract, and neither party shall have rights and obligations with a third party, otherwise the contract shall be invalid. This rule has a great influence on the debt law of modern civil law system, and is regarded as a natural principle determined by the nature of creditor's rights in theory.
Second, the breakthrough performance of contract relativity:
After the establishment of contract relativity, due to the development of social economy, in order to better protect the legitimate rights and interests of creditors and third parties and maintain the normal social and economic order, the contract legislation of modern civil law countries has made a breakthrough in the rules of contract relativity, and the theory of contract relativity has also been developed and improved.
(a) the third party infringes on the creditor's rights
The so-called infringement of creditor's rights by a third party generally refers to the act that a third party outside the contract knowingly carries out some infringement for the purpose of damaging the creditor's rights of others, so that part or all of the creditor's rights cannot be realized and the creditor's rights are damaged. Infringement of creditor's rights occurs from time to time in practice, but the current law in China has not established the system of infringement of creditor's rights by a third party. However, in real life, due to the increasingly close economic activities, the correlation between civil lawsuits is increasing, and the probability of conflicts and interactions between various rights is also increasing. If the creditor's rights are infringed by a third party, it is difficult to protect the creditor's interests just because the creditor's rights are relative rights, which obviously violates the jurisprudence that there must be relief for infringement. However, the scope of infringement of creditor's rights by a third party should be strictly controlled, and the infringement of creditor's rights should also meet the following conditions: First, the infringement of creditor's rights by a third party must be legal. If it is illegal creditor's rights, even if it is infringed, it will not bear the responsibility, because illegal creditor's rights are not protected by law. Second, the infringement committed by the third party is illegal, which leads to the inability to perform the contract debts. If the third party's behavior is legal, even if the contract cannot be performed, it does not constitute a third party's infringement of creditor's rights, but it will bear other criminal responsibilities. Accordingly, the non-performance of the contract is not caused by the illegal behavior of the third party, nor does it constitute the infringement of the creditor's rights by the third party. Therefore, only when there is a causal relationship between the illegal behavior of the third party and the non-performance of the contract, the third party infringes on the creditor's rights.
(2) creditor's rights preservation system.
In real economic life, in order to avoid debts, some debtors secretly transfer property, or transfer or even give property at a low price, or delay the exercise of creditor's rights or even give up creditor's rights, which seriously damages the interests of creditors. However, according to the traditional principle of privity of contract, the creditor can't penetrate his will into the contract between the debtor and the third party, which affects the "freedom of contract" between the debtor and the third party, and there is nothing he can do about it. This imbalance of interests will inevitably lead to the loss of transaction security in the whole contract field. Therefore, in order to seek a balance between the debtor's autonomy of will and the creditor's expected interests, and to maintain the principle of good faith, the debt preservation system naturally arises. The basic principle of this system is to give the creditor certain rights-subrogation right and cancellation right-to the debtor or the relevant third party. Among them, subrogation means that when the debtor delays the right to a third party and endangers its creditor's rights, the creditor can exercise this right in its own name and demand the third party to perform its obligations. The right of cancellation means that when the debtor donates his own property for free or transfers it to a third party at an unreasonably low price to avoid the debt, the creditor can apply to the court for cancellation and declare the act invalid.
(c) "Real right of leasehold"
Article 229 of China's Contract Law stipulates that "if the ownership of the leased property changes during the lease period, the validity of the lease contract will not be affected." That is, when the lessor transfers the ownership of the property to a third party, the lease contract is still valid for the new owner. This is the rule of "sale does not break the lease" in the theory of civil law, which makes the lease right (creditor's right) generated according to the lease contract have the effect of resisting the property right of the third party. According to the relativity of debt, the lease contract should only be valid for the lessor and the lessee. When a third party purchases the leased property and becomes the owner of the real estate, the buyer is not a party to the lease contract, and should not be bound by the contract, and can take back the leased property at any time. However, after the Second World War, with the emergence of urban expansion and housing shortage, in order to solve social contradictions, countries have set up an exception of "buying and selling without breaking the lease", that is, when the lessor transfers the leased subject matter to a third party, the original lease contract will continue to be valid for the transferee. At first, Article 57 1 of the German Civil Code stipulated that the rule of "buying and selling without breaking the contract" was applicable to land lease, and later it was extended to all real estate.
(4) Contracts with the function of protecting the third party.
"The system with the function of protecting the third party" means that when the third party with special relationship suffers damage due to the performance of the debtor's debt, it can not only claim tort liability from the debtor, but also break through the relativity of the debt and ask the debtor to bear the contract liability, so as to better protect its interests. This claim is based on the contractual collateral obligations such as protection and care based on the principle of good faith. In other words, the debtor's contractual obligations not only point to the creditor, but also point to the third person who has a special relationship with the creditor. This is the German precedent and theory that established the system of "contract with the function of protecting the third party" to strengthen the protection of the interests of the third party who has a special relationship with the creditor. Although the system strengthens the protection of the third party, it also risks aggravating the debtor's liability, and the scope of the third party should be strictly limited. Generally, the third party includes relatives, laborers, employees, renters and other people with personality characteristics who have the obligation to protect and take care of them. Therefore, we can see that "the system with the function of protecting the third party" only breaks through the principle of relativity of contracts to some extent.
(V) The establishment of the theory of inviolability of creditor's rights.
Traditional theory holds that real right is an absolute right that can directly control the subject matter, claim rights from any third party, and eliminate any third party's obstruction to real right; Creditor's right is a relative right, which can only be claimed to a specific party, but not to a third party, so it does not rule out the effect of interference by others. In order to protect creditor's rights from illegal acts, it is necessary to further establish a new theory of rights, [3] so scholars advocate recognizing the inviolability of creditor's rights. 1853 England decided Lumley v Gye, which set a precedent for a third party to infringe on creditor's rights. Lumley, the plaintiff in this case, signed a contract with an actor to perform in the plaintiff's theater for several months, stipulating that the actor should not perform in other theaters. Defendant Gye knew the existence of the contract and still induced the actor to breach the contract. The court ruled that Gye, the defendant, violated the contract and should be responsible for Lumley, the plaintiff. Since then, the theory of illegal infringement of creditor's rights by a third party initiated by this case has been accepted by many countries. Unlawful infringement of creditor's rights refers to the act of a third party intentionally damaging the creditor's rights of others and obstructing the debtor's performance of debts. [4] According to the inviolability theory of creditor's rights, after the creditor's rights are illegally infringed, the creditor can file a lawsuit for damages on the grounds of creditor's rights, and investigate the responsibility of the third party, which expands the effectiveness of the debt and covers all the third parties who infringe the creditor's rights. This is also a major breakthrough in the relativity of contracts.
(6) Contracts involving the interests of third parties.
A contract for the benefit of a third party refers to a contract in which the contractor creates rights not for himself but for others. The legal feature of this kind of contract is that (1) the third party is not a party to the contract, and he does not need to sign the contract through an agent or participate in the conclusion. (2) A contract can only create rights for a third party, but not obligations for it. (3) The conclusion of this contract requires no prior notice or consent from a third party. A contract for the benefit of a third party is an altruistic contract. If the debtor fails to perform his obligations, both the third party and the creditor may require him to bear the responsibility. It is precisely because contracts for the benefit of the third party will take effect on the third party that such contracts are exceptions to the relativity of contracts.
(7) representing liquidation.
Repayment on behalf of the debtor, also known as subrogation, refers to a system in which a third person who has an interest in debt performance pays off the debt on behalf of the debtor and obtains the creditor's rights within the scope of repayment. The third party can repay the debtor on behalf of the law or the agreement between the parties, but for whatever reason, the third party has broken through the principle of relativity of debts, mainly in two aspects: (1) The third party has fulfilled the debt that can only be performed by a specific debtor according to the relativity of debts, breaking through the limitation of debtor's relativity; (2) After the third party pays off on its behalf, within the scope of its payment, the third party obtains the status and rights of the creditor and enjoys the right of claim against the debtor, which breaks through the limitation of the relativity of creditor's rights. Of course, it is not arbitrary to break through the relativity of debt by paying off on behalf of others. Certain conditions must be met: (1) According to the nature of the debt, it must be paid off by a third party; (two) there is no special agreement between the creditor and the debtor, which cannot be paid off by a third party; (3) It does not violate public order and good customs, and does not harm the interests of creditors and debtors.
(8) Confirmation of the disclosure system. Article 403 of China's Contract Law stipulates that the trustee enters into a contract with a third party in his own name, and the third party does not know the agency relationship between the trustee and the principal. If the trustee fails to perform his obligations due to the third party, the trustee shall disclose the third party to the principal, so the principal may exercise the rights of the trustee to the third party. If the agent is unable to perform his obligations to the third party due to the principal's reasons, the agent shall disclose the principal to the third party, and the third party may therefore choose the agent or the principal as the counterpart to claim rights. The establishment of notification system is also a breakthrough in the principle of relativity of contracts.
In addition, agency, insurance and trust, as special cases of contracts for the benefit of third parties, gradually break away from the constraints of contract relativity and become independent systems; At the same time, the transfer of debt is also regarded as an exception to the principle of privity of contract.
Third, break through the essence of contract relativity.
To sum up, although there are various situations to break through the relativity of contracts, fundamentally speaking, it is a question of whether the validity of contracts is related to the third party under specific circumstances, which mainly covers the following three aspects:
First of all, the subject of the contract involves a third party. The relativity of contract subjects means that the contractual relationship can only occur between specific subjects, and only one party to the contract can make a request or bring a lawsuit to the other party based on the contract. In the case of creditor's rights and real rights, a third party can lease against the house purchaser. Another example is that in the "contract with the function of protecting the third party", the third party can ask the debtor to bear the contract responsibility, and many countries directly give consumers the right to directly sue the producer. Secondly, contractual rights and obligations involve third parties. The relativity of contract content means that, unless otherwise stipulated by law and contract, only the parties to the contract can enjoy the rights and undertake the obligations stipulated in the contract, and a third party other than the parties to the contract cannot claim the rights in the contract. In a contract for the benefit of a third party, the parties may agree to pay the benefit to the third party, or set the payment obligation for the third party with its consent; In the preservation of creditor's rights, contractual rights and obligations are also binding on the third party; The assignment of creditor's rights will directly involve the third party in the contractual rights or obligations.
Third, the contractual liability involves a third party. The relativity of contractual obligations inevitably determines the relativity of contractual liability, that is, the liability for breach of contract can only occur between specific parties, and people outside the contractual relationship do not bear the liability for breach of contract, and the parties to the contract do not bear the liability for breach of contract. From this point of view, only the "contract with the function of protecting the third party" breaks through the relativity of contract liability, making the producer directly liable to the consumer for breach of contract. Many countries solve the difficulty of contract relativity by strictly distinguishing the liability for breach of contract and tort liability, such as product liability system and third party infringement of creditor's rights system. However, the principle of privity of contract does not absolutely exclude the liability of the third party. For example, in the guarantee contract, when the guaranteed debtor fails to perform the contractual obligations, the creditor may directly ask the guarantor to perform the contract or bear the liability for breach of contract. For another example, in the debt transfer contract, the third party replaces the debtor as the main body of the contractual relationship, and the new debtor will bear all the debts. It can be considered that only the third party voluntarily undertakes the contractual obligations and becomes a party to the contract will bear the liability for breach of contract.
Mr. Shi Shangkuan once said: From individual consciousness to social consciousness, the meaning and value of contract are gradually re-evaluated from the social standpoint. [3] Therefore, the law should establish the principle of contract relativity as the main body, and at the same time recognize the breakthrough of contract relativity to protect the circulation of property more fully and perfectly. The significance of establishing this model lies in: on the one hand, it strengthens the protection of creditor's rights, expands the effectiveness of debts, recognizes the diversity of debt occurrence and performance methods, promotes the effective performance of contracts, improves the efficiency of civil transactions, and is conducive to the growth of social wealth and social progress; On the other hand, on the interactive level of debt and other social relations, from the extreme emphasis on freedom of contract and respect for autonomy without interference, it has changed to giving consideration to social justice and paying more attention to the reasonable balance between the interests of the parties to the contract and the third party and social interests.
China's "Contract Law" has no specific provisions on contracts for the benefit of third parties. As a general law to adjust the contractual relationship, the contract law should make specific provisions on the contract for the benefit of the third party. Therefore, from the analysis of the development of contracts for the benefit of third parties in various countries and regions in the world, and from the actual needs of our country, it is really necessary to further improve our legislation.