I. Contents of the Principle of Relativity of Contract The principle of relativity of contract contains very rich and complicated contents, which are widely embodied in various systems of contract. The legal circles generally summarize it as the following three aspects [2]: 1. Relativity of subjects, that is, contractual relationship can only occur between specific subjects, and only one party to a contract can make a request or bring a lawsuit to the other party based on the contract. Specifically, because the contractual relationship is a legal relationship that only happens between specific people, only the parties to the contractual relationship can make requests to each other. Non-contractual parties and a third party without contractual rights and obligations cannot make a request or bring a lawsuit to the parties to the contract according to the contract. In addition, one party to a contract can only make a contract request and bring a lawsuit to the other party, but not to a third party unrelated to the contract. 2. Relativity of 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 no third party other than the parties can claim rights or undertake the obligations stipulated in the contract. In the contract between the two parties, it also shows that the rights of one party are the obligations of the other party, and the rights and obligations correspond to each other, which is a "convection state". The rights of creditors can only be realized through the debtor's performance of obligations. Several specific rules can be deduced from the relativity of contract contents. First, the rights granted by the contract to the parties are not as good as those of the third party in principle, and the obligations assumed by the parties under the contract generally cannot be binding on the third party. Second, the parties to a contract have no right to set contractual obligations for others. Third, contractual rights and obligations are mainly binding on the parties to the contract, and the special provisions of the law are exceptions to the principle of relativity of contracts. 3. Relativity of liability means that the liability for breach of contract can only occur between the parties in a specific contractual relationship. 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. The relativity of liability for breach of contract includes three aspects: first, the breaching party should bear the liability for breach of contract caused by its own fault and cannot pass the responsibility on to others. Second, when the debt cannot be performed due to the behavior of a third party, the debtor should still be liable to the creditor for breach of contract. After assuming the liability for breach of contract, the debtor has the right to recover from the third party, and the debtor is responsible for the behavior of the third party, which is not only the embodiment of the principle of relativity of contract, but also the necessity of protecting the interests of creditors. Third, the debtor can only be liable for breach of contract to the creditor, but not to the state or a third party. In addition, in Mu's "Zou Yi's Principle of Relativity of Contracts", in addition to the above three items, a fourth item is added, that is, the relativity of validity judgment, that is, when determining that a contract is valid, invalid, revocable or uncertain, a decision should be made according to the facts provided by the contract itself to see whether the contract itself meets all the requirements of the contract law. I think the so-called contract relativity is mainly about the relationship between the contract and the third party, and it is too far-fetched and not rigorous to take the validity judgment as the content of the principle of contract relativity. Second, the legal evaluation of the principle of relativity. Both legal systems regard the principle of privity of contract as the basic principle of contract law. Although there are some differences in the specific rules, they all think that the principle of privity of contract means that "a 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 to the other party based on the contract, but not to a third party who has no contractual relationship with it, nor can it set contractual obligations for the third party without authorization, and the contractual creditor's rights are mainly affected. The relativity of contract is the cornerstone of contract rules and systems, which plays a very important role in debt law or contract law. [3] In English law, the principle of privity of contract has been thoroughly adhered to as a basic principle of contract law. At the beginning of the 20th century, Judge Harding once said: "In English law, some principles are fundamental. One of them is that only the parties to the contract can bring a lawsuit against the contract. Our laws know nothing about the rights of third parties arising from contracts. [4] "The principle of relativity of contract embodies the requirements of the principle of freedom of contract, but with the development of social economy and the increasing frequency of transactions, sticking to this principle does not necessarily meet the wishes of the parties, and it is difficult to meet the needs of balancing social interests to achieve fairness and justice to a great extent. Therefore, we must re-examine the principle of relativity under the realistic social and economic conditions. So, with the modernization of contract theory! On the premise of recognizing the principle of relativity, legislation and judicature in various countries recognize exceptions to the principle of relativity to varying degrees (Yuan Hechuan called it a breakthrough theory), such as contracts for the benefit of the third party, inviolability of creditor's rights, contract preservation measures, and property rights of creditor's rights, which have become the world trend of contract legislation. However, although the breakthrough theory does not follow the principle of contract relativity, it is essentially different from completely denying the principle of contract relativity. Although the application of breakthrough theory is formally manifested as ignoring the relativity principle of contract, in essence, the application result of breakthrough theory is nothing more than an exception to the relativity principle. The existence of this exception or breakthrough does not deny the principle of relativity, but it does not mean the loss of the principle of relativity. On the contrary, it is the maintenance and supplement of the principle of relativity. The function of breakthrough theory is to make up for the deficiency of the principle of relativity of contract, balance the interests of the parties and the third party, and embody the modern contract law concept of inviolability of rights and encouraging transactions. Because the breakthrough theory is essentially an exception and supplement to the principle of relativity in certain circumstances, and because it violates the concepts of justice and fairness, it denies the principle of relativity on the premise of acknowledging the existence of the principle of relativity, rather than completely denying the existence of the system. The principle of relativity is still an indispensable basic principle of contract law. In other words, the breakthrough theory and the principle of relativity are unified in the pursuit of intrinsic value, both of which are the pursuit of substantive justice and social appropriateness, and both of which protect the rights of creditors or the weak from different angles. This breakthrough and relativity are not contradictory in essence, and this slight change will bring great development to contract law, which is also a symbol of the modernization of contract law [5]. The essence of breakthrough theory is that it maintains the purpose of relativity principle and makes it develop on the basis of beneficial supplement and perfection. It is precisely because of the organic combination of these seemingly contradictory breakthrough systems that the principle of privity of contract still has flexibility and adaptability under the conditions of modern market economy, and this ancient principle has completed its modernization process. It is precisely because of the theoretical breakthrough that the principle of relativity has been further revised, thus making the contract legal system more reasonable and further promoting the prosperity and development of social and economic life under the new conditions. 3. Similarities and differences between the relativity of contract and debt in civil law system and the embodiment of the principle of relativity of contract in British cases "Relativity of debt" originated from Roman law. The debt in Roman law is called "legal lock", which means "as far as the binding state between the parties is concerned." [6] In other words, this means that debts can and can only be binding on creditors and debtors. Because debt is essentially a legal relationship between the parties, and one party requests the other party to pay off on its behalf, the creditor's rights cannot be traced back like property rights, and can only be effective for specific people. In order to embody the principle of relativity of debt, in the field of contract law, Roman law has established the rules that "(contracting behavior) should be reached between the offeror and the offeree" and "no one may conclude a contract for others", so a third party may not intervene in the contractual relationship. According to the Roman jurist, the exercise of the right of action must also have direct interests, and because there is no direct interest relationship between the third party and the debtor, it is impossible to make a request to the debtor. This restriction also prevents both parties from signing other contracts. In Anglo-American law, because there is no concept and system of debt in law, the concept of "relativity of debt" in continental law is called "relativity of contract". Its main content is, "The rights and obligations under the contract can only be given or imposed on the parties, and the contract can only be binding on the parties to the contract. Non-contractual parties may not appeal to enforce the contract." [7] In Anglo-American law, the privity rule of contract specifically includes the following contents: First, only the parties to the contract can sue and be sued for the contract. Because a contract is usually defined as "the relationship between people who have legitimate interests (in the same right or property)", "contractual rights are only binding on the parties to the contract, and only they can exercise the rights stipulated in the contract." [8] Secondly, the parties to a contract can create rights for a third party, but the third party cannot require the parties to perform the contract. At this point, it is different from the rules of civil law. [9] This provision is made because there is no consideration relationship between the third party and the parties to the contract. Of course, one party can apply for enforcement of the contract for the benefit of a third party, but the third party can only make a request through one party to the contract, but not in the name of one party to the contract. [10] Thirdly, if the promise to conclude a contract is made to more than one person, the promisee or any one of them can bring a lawsuit against the promise. If the promisor enters into a contract with two or more promisees, any one of them may

Bring legal proceedings to enforce the performance of the promise, although in this case, other promisees may participate in the proceedings as plaintiffs or defendants [1 1]. Fourth, the exemption clause in the contract can only exempt the parties to the contract from their responsibilities, but not protect the non-parties to the contract. In other words, the non-contracting party cannot invoke the exemption clause to defend the claim of the contracting party. As a precedent rule in Britain, the principle of privity of contract originated from the famous case Tweddle v. Atkins in 186 1. In this case, the plaintiff wanted to marry the defendant's daughter, and the defendant promised the plaintiff's father a dowry of 200 pounds, and agreed that the plaintiff had the right to file a lawsuit in the common law court or the equity court to recover the promised money. Later, the plaintiff Tweedel sued the defendant Atkins, and the court ruled that the plaintiff lost the case, arguing that "modern cases have overturned the old precedent, and the consideration must be provided by the person who has the right to file a lawsuit against the contract." The plaintiff is not a party to the contract [12] and has no right to demand the performance of the contract between the defendant and his father. In the case of 19 15, Deng Lupu Pneumatic Tire Company v. Forserich, the British Court of Appeal confirmed the principle of privity of contract as a basic principle. As a manufacturer of automobile tires, the plaintiff sold tires to wholesalers. The contract requires the wholesaler not to resell below a certain price, and requires the wholesaler to obtain a written commitment from the buyer as the plaintiff's agent and agree to maintain the plaintiff's price tag. The defendant bought a batch of goods from his wholesaler and signed a promise. The plaintiff sued the defendant for breaking his promise and selling the goods at a price lower than the prescribed price. The court ruled that the plaintiff lost the case, because there was no contractual relationship between the plaintiff and the defendant, and the plaintiff did not provide consideration for the defendant's behavior and had no right to make a request to the defendant [13]. The court has different opinions on "non-contractual parties can't invoke the exemption clause to defend the request of the contracting parties", but in some subsequent cases, the British court still "confirmed" that the third party can't get protection from the contract clauses that have nothing to do with him. However, since 1950s, a series of cases have shown that the plaintiff can bring a lawsuit based on infringement, thus circumventing the exemption clause in the contract. For example, although the passenger ticket contains a clause exempting the carrier from liability for damages to passengers, passengers can still sue the ship's employees for negligence infringement, even if the exemption clause involves employees, the result is the same, because employees are not the parties to the contract and cannot invoke the matters stipulated in the contract to protect themselves [14]. 4. The exception to the principle of privity of contract in Britain and the appearance of the principle of privity of contract in the Contract (Rights of Third Parties) Act of 1999 have always been regarded as important principles of contract law in Britain, and their status is comparable to the principle of consideration which forms the basis of contract law [15]. In judicial practice, the principle of privity of contract is strictly observed, which requires the law not to ask about the rights of the third party caused by the contract and not to grant the third party the right to perform the contract in his own name, but this has brought many inconveniences and unfair consequences. First of all, it ignores the fact that many parties to a contract intend to make the third party gain benefits when signing a contract in real economic life, which disillusions the legitimate hope of the third party who is not a party to the contract, and the third party cannot directly claim the interests that should belong to him. Secondly, strictly observing the principle of privity of contract may also lead to unfair consequences, such as the parties evading the debts that should have been performed under the contract or evading the contract to obtain benefits that should not have been obtained. Nevertheless, English courts have always strictly abided by the principle of privity of contract, holding that a third party with contractual interests cannot bring a lawsuit according to the contract. However, the court is also aware that in some cases, the interests of third parties should be protected to avoid the inconvenience and injustice that may be caused by strictly observing the principle of relativity of contracts. Therefore, in many cases, the court has determined the exception rule, made necessary restrictions on this principle, and granted the third party rights on the main reasons of exceptions such as trust, agency and contract assignment. For example, "the principle of privity of contract does not apply to insurance contracts and trust contracts that promise to pay a third party", "In a contract that the principal expressly or implicitly agrees with the trustee and a third party, the principal is bound by the exemption clause contained in the contract". British legal circles have been calling for reform or even abolition of the principle of privity of contract. 1937, in a famous report on the reform of consideration system, the British Law Reform Commission suggested abolishing the principle of privity of contract [16]; At the same time, some famous judges in the judicial field also hold different opinions on this principle, such as Lord Denning, who firmly opposes the principle of privity of contract. He doubted whether the relevant cases confirming this principle actually confirmed the existence of this principle, and said: "In essence, it is only a procedural provision. "[17] In this situation, the British Law Commission officially published the proposed draft of the draft law in July after submitting a report on reforming the principle of relativity of contracts, 199 1. 1999 1 1 In June, the British Parliament passed the Contracts (Rights of Third Parties) Act 1999 (hereinafter referred to as the Act). This bill, in the form of written legislation, strictly abides by the principle of privity of contract that has been strictly observed by English courts for a long time, but it has been opposed by many legal professionals. The bill * * * consists of ten articles, and its main contents include the following aspects [18]: (1) General clauses that give a third party the right to demand compulsory performance of contract terms;

(two) the restrictive clauses of the parties to the contract to modify and terminate the contract;

(3) Provisions on the Pledge invoked by the promisor;

(four) the compulsory performance of the promisee's rights and the prevention of the promisor's double responsibility;

(5) Exceptions for granting rights to third parties;

(6) Arbitration clause. The adoption of the UK 1999 Contract (Rights of the Third Party) Act is of great significance to the daily economic activities of the country and the judicial trial practice of the courts. At the same time, it also has certain reference and enlightenment to the relevant contract legislation in China. (1) The Bill better meets the actual needs of real economic exchanges and improves transaction efficiency. After all, in real economic communication, there are many cases in which the parties to a contract intentionally let the third party get the benefits of the contract. Its main purpose is to simplify the transaction procedures and save the transaction costs, which is the concrete embodiment of the pursuit of "efficiency" in economic activities. In order to meet this practical need, the law must give full protection to the realization of the interests of the third party while allowing the parties to the contract to realize their intentions. The bill has done a good job in this regard. (2) The bill only partially revised the principle of privity of contract, but did not completely deny it. The provisions of this law only involve the rights of the third party, that is, how the third party can realize these rights and interests when the parties to the contract assign them to the third party, without changing the other aspect of the principle of relativity of the contract: the parties to the contract cannot impose their contractual obligations on the third party outside the contract. In addition, the law imposes strict restrictions on the third party's right to enforce the contract. The first is the restriction on the scope of the "third person". Secondly, in some cases stipulated in the law, a third party who is not a party to the contract can be regarded as a party to the contract and exercise relevant rights. However, only according to these provisions can a third party have this legal status, and it cannot be extended to other situations. In addition, the exercise right of the third party is not unlimited, and the promisor can claim the right of defense against it. (3) This law pays attention to safeguarding the legitimate rights and interests of the promisor while protecting the realization of the rights and interests of the third party, and has achieved a good balance between the two. Giving the third party the right to demand the compulsory performance of the terms of the contract will clearly guarantee the realization of the rights and interests of the third party, so that it can trust the contract with confidence. In order to solve the conflict of rights between the parties to a contract and the third party, this law clearly limits the behavior of the parties to a contract, which is also an inevitable requirement for the parties to keep their promises and respect the trust interests of the third party. This law not only gives the third party rights, but also protects the promisor's interests to the maximum extent. Therefore, the Bill stipulates the promisor's right to widely invoke relevant defenses when the third party sues, so as to strike a balance between realizing the contractual rights of the third party and safeguarding the legitimate rights and interests of the promisor. (4) The provisions of the Bill have well dealt with the problems of connection and matching with other existing laws [19]. The bill clearly stipulates that the rights of the third party created by it will not affect any other rights or remedies available or existing to the third party, and lists in detail the exceptions granted to the third party to execute the contract (that is, according to the nature of the legal relationship itself or relevant laws and regulations, the rights granted to the third party in the bill should not be applied). A good example is to mention the exemption and limitation of liability clauses in the contract relationship of goods transportation. In view of the contradiction between the provisions of the law granting rights to third parties and the relevant laws regulating the relationship between goods transportation and the legislative policies of international conventions, in order to avoid the conflict between the new legal provisions and the existing legislation that has been widely accepted internationally, the law stipulates that as long as there is an agreement between the parties that conforms to the provisions of the law, if the third party falls within the scope of the protection of the law, the third party may invoke the relevant exemption or limitation of liability clauses according to the law. If a third party is not covered by the bill, he can still ask for the application of the general principles of the existing legislation. In this way, the existing legislation widely accepted by the business community is given priority, and the free will of the parties is fully respected. V. Principle of Relativity of Contract and China Contract Law Our legal system has inherited the tradition of continental law and the theory of "relativity of debt" of continental law. "Debt is a legal relationship between specific parties, and both parties are specific. In principle, the creditor's rights are only valid for the debtor. It is in this sense that debt is a relative legal relationship and creditor's rights are human rights. " [20] The relativity of debt refers to the principle of contract relativity in the field of contract. The scope of validity of a contract is limited to the parties to the contract, and a third party cannot claim the rights or undertake the obligations in the contract. Although China's "Contract Law" does not explicitly put forward the principle of contract relativity as the basic principle of contract law, its basic position in contract law has undoubtedly been widely recognized by scholars and supported by legislators. The development of the principle of privity of contract is closely related to the contract legislation in China. In the early days of accepting the principle of relativity of contract, this principle was strictly observed, which was clearly reflected in the early contract legislation in China. For example, Article 26 of the Law on Foreign-related Economic Contracts stipulates that "if a party transfers all or part of its contractual rights and obligations to a third party, it shall obtain the consent of the other party". 198 1 Article 33 of the Economic Contract Law once stipulated: "If the economic contract cannot be fulfilled or cannot be fully fulfilled due to the fault of the superior leading organ or the competent business organ, the superior leading organ and the competent business organ shall bear the liability for breach of contract." This provision requires the higher-level leading organs and competent departments to bear the liability for breach of contract as the third party. Although it is beneficial to reduce the improper interference of administrative organs in the contractual relationship and guarantee and implement the enterprise's right to operate, it is obviously against the principle of relativity of contract to require the third party to bear the responsibility for breach of contract, so the General Principles of Civil Law has revised it according to the principle of relativity of contract. 1999 article 8 of the contract law "a legally established contract is legally binding on the parties. The parties shall perform their obligations in accordance with the agreement and shall not change or terminate the contract without authorization. " It also establishes the position of the principle of privity of contract in contract law. With the deepening of theoretical research and the development of economic situation, while recognizing the relativity of contract, China has gradually established some exception rules of the principle of relativity of contract, which are embodied in legal provisions. The provisions in Article 64, Article 65, Obligatory Contract of a Third Party, Article 73, Right of Subrogation, Articles 74 and 75, and Article 229 of the Contract Law are exceptions to the principle of contract relativity. In addition, China's contract law, like Japan's civil law, is also impacted by western civil law theory, and there is an increasing trend of exceptions to the principle of privity of contract in legislation. On the premise of adhering to the principle of relativity of contracts, appropriate breakthroughs are not only more suitable for the needs of frequent commodity transactions, but also conform to the principles of transaction convenience and transaction economy, so as to make up for the deficiency of the principle of relativity, balance the interests between the parties and the third party, and between the parties and the society, and also reflect the need to change the legal thinking from personal standard to social standard, which is more conducive to the healthy development of the rule of law and the good operation of the economy in China.