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Atletico commander gives up on Chelsea defender who failed to win in the past
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Agreement(Contract,Luo: pactum, Buddha: contract, British: contract) Is a system that creates legal rights and obligations between the parties by the agreement of multiple parties.So, the agreement is made with the expectation that it will be legally binding.Gift-Buying and selling-exchange-Rent-Contract-employment-Delegation-DepositThere are many things that determine "who, for whom, what, how much, and what to do in case of default".
Private law contract
Continental lawIs a countryGermany,JapanThen,Private lawOpposite to the above contractManifestation of intentionEstablished by matchingLegal actionTo say.On the other hand, the concept of contracts in Anglo-American law has characteristics that are slightly different from the concept of contracts in continental law.JoalehFeatures such as (consideration) or deed being a requirement for contract validity..
For example, commodity trading has been carried out by sales contracts for a long time, but in modern society, activities that are not originally trading are also carried out by contracts...The binding force of the contract is beforeModernIt has been recognized by the society of the world, but it was closely related to the social status relationship...However, in modern society, it has come to be considered that human beings are free and equal legal entities, and that the acquisition of rights and the burden of obligations should be granted only on the basis of their free will...For example, the labor process of producing goods was a relationship between a master and an apprentice until the Middle Ages, but since modern times it has become a kind of business relationship in which workers provide labor to employers and pay wages as compensation. Are..In addition, land use used to have a status relationship between the lord and the territory, and the lord collected annual tribute from the territory instead of protecting the territory...However, in modern society, the landowner rents the land to the farmers, and the farmers pay the rent as compensation...It is a characteristic of modern society that life in general is carried out by contract, which extends to the areas regulated by the social division system in the Middle Ages...A word that expresses this is "from status to contract" by the British legal historian Maine..
The social background is that what was a self-sufficient economy until the Middle Ages developed economic liberalism in the modern era with the establishment of capitalism..Capitalist economySociety underMonetary economyIs highly developed, sales contracts in the product distribution process, employment contracts in the capital production process (Labor contract) Are the core of the two contracts, and others are owned by others.Real estateThe lease contract for using the product as a means of production, the loan agreement for capital procurement, etc. play important functions..
In addition, as a spiritual background, there is a shift from authoritarian ideas to rationalism (modern natural law) after the Renaissance, in which rights and obligations can be freely generated according to one's will...However, since the modern era, as long as it is concluded based on free will, there is a contract supreme principle that the agreement between people is absolute regardless of the content. On the other hand, if the contracting parties are not on an equal footing, the problem is that a contract with unreasonable content is concluded, and in modern times, contracts that significantly lose their social relevance and rationality.Public order and moralsViolation orForced lawThe binding force is denied as a violation,Principle of changing circumstancesHas come to be corrected by.
Freedom of contract
Freedom of contractThat is, private life relations should be formed by individuals who are free and independent legal subjects, and the state should not interfere but respect the will of the individual.Principles of private autonomyRefers to the principle derived from..This principle is said to have meaning as a legal manifestation of the idea of "Laissez-faire"..
- Freedom to conclude a contract
- You are free to choose whether or not to conclude a contract, and the freedom to conclude a contract can be divided into freedom of application and freedom of consent..
- Freedom of choice
- Freedom to decide the contract details
- You are free to conclude any contract.
- Freedom of contract method
- You are free to conclude a contract in any way.EuropeIn中 世Although formalism dominated until, with the development of the commodity exchange economy17st centuryThe freedom of the method was established in.
- Restrictions on freedom to conclude contracts
- Freedom to conclude contracts is restricted in public businesses and monopoly businesses (Compulsory contract・ Compulsory conclusion / compulsory contract)..There are various restrictions on the freedom of conclusion, The restrictions on the freedom to conclude contracts under Japanese law are as follows.
- Restrictions on consent
- Public legal restrictions
- Electrical-gasSupply obligations to businesses such asElectricity Business LawArticle 18,Gas Business LawArticle 16,Heat supply business lawArticle 13,Oil Pipeline Business LawArticle 22), underwriting obligations are stipulated for road transportation and maritime transportation companies (Road transport lawArticle 13,Sea Freight LawArticle 12), the freedom of consent is restricted in both cases.
- Public restrictions
- Public interest restrictions
- Doctor-DentistToDuty to serveThere is (Doctor lawArticle 19,Dentist lawArticle 19,Pharmacist methodArticle 21,Public Health Nurse Midwife Nursing Law(Article 39)
- Private law restrictions
- Application restrictions
- When it is not allowed to exclude a specific person as the other party of the contract (withdrawal from the labor union is a condition of employment)Unfair labor practicesIn some cases, only a specific person is allowed as the other party to the contract (Article 7, Paragraph 1 of the Labor Union Law, etc.)Closed shopSuch).
- In addition, the restriction of freedom to conclude a contract will inevitably be accompanied by the restriction of freedom of choice of the other party..
- Restrictions on the other party's freedom of choice
- In hiringUnionRequires to be a member ofLabor union law OfClosed shop(Article 7, Paragraph 1 of the Labor Union Law) corresponds to this.
- Restrictions on freedom to decide contract details
- The restrictions on the freedom to decide the contents of the contract are as follows.
- Dating contract
- Dating contract(Subordinate contract) Is an electricity / gas supply contract,insuranceLike contracts and deposit contracts, contracts are concluded using contracts prepared in advance by one of the parties to the contract and the other without the freedom to choose the content of the contract.In modern times, the contracting party has developed a dating contract in which the economically superior side creates a contract clause unilaterally..
- Protection of the financially vulnerable
- labor law-Economic law-Social lawFreedom to decide the contract contents is limited in the field of,Employment contract,Real estateThe provisions regarding lease contracts, etc. are enforced by various laws of the Labor Law, special laws such as the Land Lease Law and the Agricultural Land Law..
- In addition, consumerFreedom of contract content may be restricted from the perspective of protection..Under Japanese lawConsumer Protection Basic Law,Food Sanitation Act,Pharmaceuticals and medical devices law,Consumer Product Safety Act,Unfair Competition Prevention Law,Legal,Product Liability LawIt is due to such.
- Restrictions on freedom of contract method
- There are also restrictions on the freedom of contract methods.For example, a gift contract is a consent contract under Japanese law, but in other countriesRequired contractOften said, a notarial act is required under German and French civil law...Even in Japanese lawFarmlandOr, there are contracts that require a certain method, such as the lease contract for pasture grazing land that must be written (Article 21 of the Agricultural Land Law), and the amount and complexity of the contract will increase.CommerceExceptions are made in the Commercial Code to clarify and speed up business relationships..
- Essential contracts are contracts that require delivery of goods and cannot be concluded by agreement alone, which limits the freedom of contract methods, but these contracts are considered essential contracts for historical reasons...Under the Japanese Civil Code, a consumer loan under Article 587 is a key contract (however, Article 2017-2020 was newly established under the revised Civil Code of 4 (scheduled to come into effect on April 1, 587), and in the case of a written consumer loan, it is a thing. Issuance was not required)..Under Swiss Civil Code, only real gifts are required contracts..
Typical contract / atypical contract
- Typical contract
- The contract type stipulated by the Civil Code is called a typical contract.In Japanese lawGift,Buying and selling,exchange,Consumption loan,Loan,Rent,employment(Employment),Contract,Delegation,Deposit,combination,Annuity,settlement13 types of contracts.Famous contractAlso called..In a broad sense, a typical contract is a contract type stipulated by the Commercial Code, that is, in Japanese law,Commercial lawPart 2 Nine types of contracts stipulated in commercial activitiesTrading(Buying and selling),Alternate calculation,Anonymous union,Brokerage business,Wholesaler business,Transportation handling business,Transportation business,Trading deposit(Deposit),insuranceIncluding..For typical contracts, the legal system that is defined dually by the Civil Code and the Commercial Code (French Civil Code and German Civil Code) and the legal system that is collectively defined (French Civil Code and German Civil Code)Swiss Civil Code), But in Japan the former legislation is adopted..
- Under ancient Roman law, only four types of contracts were typical contracts: sale, lease, delegation, and union...However, in the Middle Ages, the number of typical contracts increased due to the complexity of transactions..
- The types of typical contracts vary from country to country. For example, French Civil Code stipulates 11 types of typical contracts: sale, exchange, lease, company, lease, deposit, dispute deposit, shooting contract, consignment, guarantee, and settlement..
- Although the content and effect of a contract can be freely determined between the parties based on the principle of freedom of contract, the meaning of stipulating a typical contract by law is that the contract type is almost constant in the society of the same age. In addition, it is to be used as a standard for contract interpretation when the intention of the parties is unclear..
- Atypical contract
- Regarding specific contracts, contracts that do not conform to the standard contract (typical contract) in whole or in part are called atypical contracts...In Japan, this is a publishing contract..Anonymous contractAlso called.
- In the Middle Ages, typical contracts were called "clothed agreements", while contracts that did not fall under typical contracts were called "naked agreements" and were not legally effective...In modern times, human beings are considered to be able to freely generate rights and obligations according to their own will, so that anonymous contracts are also legally effective..
- Mixed contract
- Regarding a specific contract, if you look at the elements contained in it individually, it seems that it belongs to the fixed form of the contract (typical contract), but as a whole, it is connected to each other and the parties are considered as one. Contract.Mixed typical contract,Mixed contractAlso called.This is the product supply contract (mixed contract and sales contract)...In addition, from the principle of freedom of contract, it is basically said that the contents and effects of contracts can be freely determined between the parties.It is said that mixed contracts should be reasonably interpreted in consideration of the intentions and practices of the parties, and the provisions of typical contracts should not be applied mechanically..
Bilateral contract / one-sided contract
- Bilateral contract
- A contract in which both parties have a debt of a consideration nature..Taking a sales contract as an example, the seller is obliged to transfer the property right to the buyer (debt), and the buyer is obliged to pay the price to the seller (debt).Therefore, it can be said that the sales contract is a bilateral contract because both the seller and the buyer are in debt to each other (have a claim).Whether or not a debt has a value-based nature is determined not by the objective but by the subjectivity of the parties...In the typical contract of the Japanese Civil Code, seven types of contracts are always bilateral contracts: sale, exchange, leasing, employment, contract, union, and settlement...Bilateral contracts have special effects such as survival and extinction..
- One-sided contract
- A contract in which only one of the parties to the contract owes a debt of a consideration nature.Gifts, loans for consumption, and loans for use are always one-sided contracts...Of these, gifts include burdened gifts (the burden of burdened gifts is a subordinate relationship, and it is not a counter-benefit that stands on an equal footing, but a one-sided contract.).
- The three types of mandate, deposit, and annuity may be bilateral or one-sided..
- In addition, since the seal certificate or joaleh (compensation) is a valid requirement of the contract under the Anglo-American law, for example, a contract that is a mere gift contract under Japanese law is valid as a contract under the Anglo-American law unless it is based on the seal certificate. do not become.
Paid contract / free contract
- Paid contract
- A contract that is recognized as having a payout (economic loss) in the entire process of the contract..In the typical contracts of the Japanese Civil Code, seven types of contracts are always paid contracts: sale, exchange, leasing, employment, contract, union, and settlement...There are four types of loan, delegation, deposit, and annuity, which may be paid or free...As a general rule, the provisions of sales contracts apply mutatis mutandis to paid contracts (Civil Code Article 559).
- Free contract
- A contract that does not have a payout (economic loss).In the typical contract of the Japanese Civil Code, two types of contracts, gift and loan for use, are always free contracts...There are four types of loan, delegation, deposit, and annuity, which may be paid or free...Most of the bilateral contracts are paid contracts, and most of the one-sided contracts are free contracts, except that the interest-bearing loan agreement is a one-sided paid contract...The classification of bilateral contracts and one-sided contracts isRoman lawDerived from.
- Free contracts often have less duty of care than paid contracts, Responsibility for objects and rights is also limited (Civil Code Article 551, Paragraph 1, Civil Code Article 590, Paragraph 2, Civil Code Article 596).As for the gift contract with a burden, the nature of the contract is actually recognized as a paid contract within the limit of the burden, so we are liable for collateral within that limit (Civil Code, Article 551, Paragraph 2)..
Consent contract / essential contract
- Consent agreement
- A contract that can be established only by the agreement of the parties without the need for delivery of the contract object..Modern lawIn principle, the contract is based on the agreement of the parties, because of the freedom of contract., The Japanese Civil Code follows this.In addition, European Contract Law Principle 2-101 states that "a contract does not need to be concluded or proved in writing and does not require any other terms of form". The principle is stipulated.
- Essential contract
- A contract established not only by the agreement of the parties but also by the delivery of the object.Practice contractOrPractical contractAlso called..The existence of essential contracts depends on historical background.
- Under the Japanese Civil Code, a consumer loan under Article 587 is a key contract (however, Article 2017-2020 was newly established under the revised Civil Code of 4 (scheduled to come into effect on April 1, 587), and in the case of a written consumer loan, it is a thing. Issuance was not required)..The French Civil Code and the Dutch Civil Code also stipulate a consumer loan contract as an essential contract (Article 1892 of the French Civil Code, Article 7 of the Dutch Civil Code 1791A).The German Civil Code used to stipulate a loan agreement as a key contract, but it was amended in 2001 to make it a consent contract.In Japan, under the revised Civil Code of 2017, the use loan and deposit of typical contracts became consent contracts, and the accord and satisfaction contract also became consent contracts (scheduled to come into effect on April 2020, 4).
Required contract / unnecessary contract
Required contractIs a contract that requires a certain method to conclude a contract,Unnecessary contractMeans a contract that does not require any method to conclude a contract.Since the principle of freedom of contract (specifically, freedom of contract method) is strongly valid for contracts in property acts, contracts that require formalism are limited to certain cases.Therefore, most property act contracts are unnecessary contracts.On the other hand, most of the contracts are formal contracts because the act of identification requires careful consideration of the parties, clarification of their intentions, and public notice to a third party.婚姻,Adopted childAdoption is a typical contract that requires notification).
The Japanese Civil Code is from the perspective of making the guarantor's will cautious and clear.securityThe contract is a required contract (for the guarantee contract)HeiseiDue to the revision of the Civil Code in 16446 articleIt was decided to make a formal contract in Section 2).In addition, under German law, as a requirement for establishing changes in real estate property rightsregistration(Article 873, Paragraph 1 of the German Civil Code).Under French law, gifts, mortgages, buying and selling of real estate to be built, etc.NotaryIt is necessary to prepare a public office certificate by.
As will be described later, in the United States, various contracts are required to be made in writing..
One-time contract / continuous contract
One-time contractIs a contract that ends with a single benefit, such as a sales contract,Renewal contractMeans a contract in which the contractual relationship continues, such as leasing...There is a difference between the two in that the effect of the contract is retroactively extinguished by the cancellation of the one-time contract, while the effect of the contract is extinguished only in the future in the continuous contract (in addition, continuous). When canceling a contract, cancellation due to destruction of the relationship of trust is permitted.The doctrine of breaking trust(See).
Caused / non-caused contract
In the establishment of a debt, a contract that is linked to the cause fact and the claim becomes invalid if the cause fact does not exist or is not established.Contribution contractTo say..On the contrary, even if the cause fact does not exist or is not established, the contract will not be invalid for the claim.Non-causal contractHowever, all typical contracts under Japanese Civil Code are causal contracts (however, it is possible to conclude non-causal contracts from the principle of freedom of contract)..
Main contract / Subordinate contract
When a master-slave relationship is recognized between multiple contracts, a loan agreementMain contractThen, the guarantee contract and the interest contractSubordinate contractTo say.
Conclusion of contract
The contract isMatching of application and consent of the partiesThis is the basic form of contract formation.An objective match (objective match between the contents of the application and consent) and a subjective match (intention to conclude a contract between the parties) are required to conclude a contract..
Matching application and consent
A contract is concluded by the agreement of two manifestations of intention, application and acceptance between the parties.For example, if the seller says "sell this" to the buyer, while the buyer says "then buy it", a sales contract is concluded between the two.
In Japanese law, the principle of consent is that a contract can be concluded only by manifesting the intention.On the other hand, the idea or norm that a certain method must be adopted in order to conclude a contract is called a formula principle (for example, a guarantee contract iscontractIt will not be established without it, etc.).
Even in the Anglo-American Contract Law, the conclusion of a contract is based on application and consent, but the contract cannot be enforced without the deed or consideration described below..
- Significance of application
- An application is a manifestation of intention to conclude a contract with consent...To a concept that distinguishes it from an applicationAttracting applicationsRefers to the act of encouraging others to apply..Of transportationTimetablePosting (passenger transportation contract), sending product inventory and product samples (sales contract, etc.), etc..
- When the application arrives
- Under Japanese law, the manifestation of intention of an application takes effect from the time the notice reaches the other party, according to the principle of manifestation of intention.97 articleItem 1).The application can still be withdrawn as the manifestation of intention has not taken effect before the notification arrives..
- Formal effect of application(Binding force)
- The formal effect of an application (passive effect, binding force) means that the effect of the application continues for a certain period of time and cannot be withdrawn...In principle, the binding force of an application is not recognized by Roman law, French law, and English law (it can be freely withdrawn without the consent of the other party), whereas German Civil Code, Swiss Debt Law, and Japanese Civil Code do so. Admit..If the binding force of the application is extinguished, the applicant can freely withdraw the manifestation of intention of the application and extinguish the effect of the application (the withdrawal also extinguishes the consent eligibility and the contract is not established)..
- Under Anglo-American law, a definitive application that promises not to withdraw an application for a certain period of time is called a firm offer...In principle, English law does not allow binding of contract applications, but it is because such promises also require joaleh, and there are joaleh factors such as the other party paying the price. Unless the application is not binding..However, this is inconvenient, so under US lawUniform Commercial CodeRecognizes the validity of the promise not to withdraw the application for a certain period of time with a certain time limit(Details will be described later).
- In Japan, it is understood that the provisions of prize advertisement should be applied mutatis mutandis to applications to an unspecified number of people, and in principle it can be withdrawn at any time, but the right to cancel is waived when a period is set for the designated act. Presumed to be (530 article）.
- Substantial effect of application(Eligible for consent)
- Substantial effect of application (active effect, eligibility for consent) means the legal possibility that a contract can be concluded immediately with consent...The expiration of the formal effect (binding force) of the application only allows the applicant to withdraw the manifestation of intention of the application, and unless the applicant withdraws, the actual effect (eligibility for consent) of the application will not be lost. The other party can still accept.
- For example, the German Civil Code stipulates that the eligibility for acceptance of an application with no fixed acceptance period will cease to be effective after a considerable period of time (Article 146 of the German Civil Code).
- Significance of consent
- When consent takes effect
- Under English law, the contract is established when the consent is sent, and under German law, the contract is established when the consent is reached..
- Under the Japanese Civil Code, the revised Civil Code of 2017 will take effect when the applicant reaches the declaration of consent and the contract will be concluded...Before the amendment, the principle of transmission was taken for manifestation of consent (former Article 526, Paragraph 1).
Crossover application and intention realization
As an irregular contract formation formCross applicationとRealization of intentionThere is.
- Cross application
- A crossing application means that the parties to the contract accidentally make an application that matches the contents of each other, and in this case as well, the contract is concluded because the parties are allowed to agree on the manifestation of intention..
- Realization of intention
- Realization of intention means that the contract is concluded when there is a fact that should be recognized as manifestation of consent if the applicant does not require notification of acceptance due to manifestation of intention or business practice (526 article(Section 2).Realization of intentionAlso called.
Culpa in contradiction
On the other hand, if the other party suffers damage due to negligence in the process of concluding the contract, he / she will be liable for damages within the scope of trust profit (Culpa in contradictionSay).
The effect of the contract
In order for a contract to take effect, it must be valid as a prerequisite.In order for a contract to be valid, (1) determinability (contents can be specified to some extent), (2) feasibility (contents that can be realized at the time of contract conclusion), and (3) legality. Need sex..In some cases, the social validity is divided from the legality and four are analyzed as the requirements for effectiveness..
The contract isPublic order and moralsIf it violates (Article 90) or violates the mandatory regulations (Article 91), it becomes invalid.If the application or consent that constitutes a contract is invalid (such as the proviso of Article 93), it is also expressed as "the contract is invalid".Similarly, if the application or consent that constitutes a contract is canceled (such as Article 96, paragraph 1), it is also expressed as "the contract has been cancelled."This confusion of terminology arises because there is no point in distinguishing between the validity of manifestations and the validity of contracts.
Effectiveness between the parties to the contract
General effect of the contract
Once the contract is in effect, the parties are bound by it and are obliged to keep the contract.The parties to the contract exercise the claims arising from the contract and fulfill their obligations.Even if a contract differs from the provisions of the Civil Code, the contents of the contract take precedence as long as the provisions are voluntary. This is because it is said that a contract becomes a law between the parties.
The debtor does not voluntarily fulfill the debt caused by the contract (Default) When the creditorLawsuitprocedure·EnforcementBy following the procedure, the debtor can be forcibly requested to realize the contents of the debt (compulsory performance, compulsory performance).In addition, in the event of default, the creditor will be responsible for the contract.ReleaseOr to the debtorRestitution for DamagesYou can make a claim.
Effectiveness peculiar to bilateral contract
The Civil Code of Japan has a clause on the validity of contracts, but in reality, the issue of "effectiveness of contracts" is, after all, the issue of "effectiveness of claims", which is stipulated in the chapter on general rules of claims. There is.In addition, the subsection of the effect of the contract includes provisions unique to contractual relationships (especially bilateral contracts) that cannot be covered by the Obligation Law.
- Performance check-in Simultaneous performance defense(533 article）
- Survival integrity- Risk taking(534 article）
The effect of the contract on a third party
Under modern law, it was originally thought that only the contracting party would acquire the rights and obligations by contract, and that no one else could bring profits or disadvantages (the principle of contract relativity). be called)..However, as business relationships have become more complex, contracts have led to contracts in which one of the parties promises to provide a benefit to a third party, such contracts.Contract for a third party(537 article) (For more informationContract for a third partySee).
A contract made for a third party promises that one of the parties will provide benefits to the third party and is established between three parties, each with a different independent position.Three-sided contractIs different.In addition, in the contract for a third party, the rights and obligations belong to the abstracter and only some of the rights belong to the beneficiary, so all the rights and obligations belong directly to the person.proxyIs different.Historically, Roman law did not allow the conclusion of contracts for others, but French civil law did not, in principle, allow the conclusion of such contracts under Roman law (exceptionally the conditions for gifting to others). However, German law and Swiss law have adopted legislation that allows the conclusion of such contracts..
Termination of contract
Cause of contract termination
The causes of termination of the contract are performance (payment) in the case of a one-off contract, expiration in the case of a continuous contract with a fixed period (rejection of renewal if renewal continues), and fixed period. If there is no continuous contract, there is a cancellation request..In addition, there are cancellations and cancellations of agreements as general causes of termination of contracts (note that cancellation of agreements is an independent contract in itself and is different from exercising the right to cancel)..
Cancellation of contract
The contract can be terminated by canceling it, but there are two main cases when the contract is canceled.
One is when one of the parties unilaterally cancels the contract, and usually "cancellation" refers to this.At this time, the authority to unilaterally cancel the cancellation contract (cancellation right) that occurs under certain conditions (for example, default of debt) according to the provisions of the law is called the statutory cancellation right, and it occurs according to the conditions specified in the contract etc. What you do is called the right to cancel the contract.
Regarding the cancellation of the above meaning, in the courseRetroactive effectThose who have is classified as "cancellation" and those who do not have it are classified as "cancellation (notification)", but both are "cancellation" in the legal text of the Civil Code.Another cancellation is the cancellation of the agreement, which the parties to the contract discuss and decide not to have the contract.Rescission is also a contract called "a contract that makes a contract absent."
Aftereffect of contract
Good faithIn addition, the parties who stand in the contractual relationship are obliged not to end the rights and obligations even after the termination of the contract and to prevent the other party from suffering any disadvantage...This is called the aftereffect of the contract and is a concept derived from German law...As a positive law of this, in Japanese law, Article 654 of the Civil Code (disposal after the end of mandate) and Article 16 of the Commercial Code (Article XNUMX of the Commercial Code)Duty to avoid competition)and so on.
Contract under civil law
Obligation in a narrow sensedebt) Agreed for the purpose of occurrence (Credit contract: English contract, French contract) only, in a broad sense, changes in rights (other than the occurrence of obligations)Changes in property rightsOr an agreement for the purpose of quasi-property rights change (Property rights contractas well as the Quasi-property agreement) Including (French: convention), and even婚姻,AdoptionAgreement for the purpose of setting or changing status such asIdentification contract) Including..It is a system to protect by legal force when persons in different profit situations agree to provide a certain amount of benefits for the purpose of mutual benefit.
"Contract" refers only to credit contracts in a narrow sense, and includes property rights contracts and quasi-property rights contracts in a broad sense.German Civil Code,French civil lawGenerally refers to a contract in a broad sense, whereasJapanese Civil Code"Contract" is generally used in a narrow sense..A bond contract is established by the agreement of multiple parties for the purpose of creating a certain bond relationship.Legal actionMeans.
Even in Japanese law, the provisions regarding contracts under the Civil Code should be applied mutatis mutandis to property rights contracts and quasi-property rights contracts..
Contract under Anglo-American law
In Anglo-American law, a contract means a legally enforceable agreement between two or more parties.Comparing civil law and Anglo-American law, the legal fields of contract law are very similar to those of legal fields such as bankruptcy law...For example, the conclusion of a contract is based on application and acceptance...In principle, consent must not change the application, and if the application is changed or conditions are added to the application, it will be treated as a new application...On the other hand, there is also a feature that the contract cannot be enforced without (deed) or cause (consideration)..
In common law, in order for a contract to be concluded, it must be prepared in a strict document called a deed, or the promise of content must be supported by the Consideration doctrine. is there..Concidalation is "the benefit or disadvantage that one party of a contract receives from the other party in exchange for its promise" and is irrelevant to morality, justice, or British practice. consideration is "JoalehIs translated.
Contract establishment requirements
The requirements for establishing a contract areapplication(Offer),Consent(Agreement), Consideration, (Capacity),LegalityThere are five (Legitimacy), and in principle, joaleh is required.Continental lawIt is a big difference from other countries.In addition, certain contractsStatute of fraudMust be prepared in writing in accordance with the provisions of.
Seal certificate and joaleh
Under the Anglo-American Contract Law, a contract cannot be enforceable without a deed or consideration..
- Seal (deed)
- A seal (deed) is a stamped form..
- Joaleh refers to the consideration incurred between the contracting parties..Consideration means the existence of exchange transactions between the parties and is considered to be the most distinctive feature of contracts under Anglo-American law..
- Anglo-American law contracts are premised on the cause, that is, the existence of exchange transactions (consideration). Does not apply to the above contract..Therefore, it is said that no remedy by equity can be obtained (the legal effect on equity is not effective).
Applying for a contract under Anglo-American law
The effect that the applicant cannot withdraw the application made by himself / herself is called the binding force of the application, but in principle, the binding force of the application is not recognized in the United Kingdom..
Under Anglo-American law, a definitive application that promises not to withdraw an application for a certain period of time is called a firm offer...In principle, English law does not allow binding of contract applications, but this is because it is believed that a promise not to withdraw an application for a certain period of time also requires a joaleh, and the other party pays the price. The application is not binding unless there is a cause such as..In principle, the applicant can withdraw the application if there is no contract and the contract has not been concluded yet.
However, this is inconvenient, and US law allows the Uniform Commercial Code to enforce the promise of not withdrawing an application for a period of time with a three-month deadline... When a firm offer for more than 3 months is required, if the other party pays the applicant a consideration (usually called Option tee), a joaleh will occur and the applicant will be bound by the application. , Can get a firm offer valid for more than 3 months.
Formal contract under Anglo-American law
In the United States, various contracts are considered to be required contracts in writing...500 in the Uniform Commercial CodeDollarIt is said that the above goods sales contract will not be valid without a document signed by the other party...Also, in many states, real estate sales contracts and guarantee contracts are required to be written..
In the UK, the Law Reform Act of 1954 removed the written requirement for many contracts, but guarantee contracts and real estate sales contracts require written documents..
As a treaty on international contractsUnited Nations Convention on Contracts for the International Sale of GoodsThere is (CISG)..Japan joined the United Nations Convention on Contracts for the International Sale of Goods in 2008 and came into effect on August 2009, 8..
Internationally, the dominance principle is the time when the manifestation of consent reaches the applicant regarding the time when the contract is concluded in the contract between remote persons.In the context of international transactions, the United Nations Convention on Contracts for the International Sale of Goods stipulates that the manifestation of consent for an international sale of goods contract shall take effect when the applicant is reached (the Convention 18). Article), it is said that the contract will be concluded when the consent becomes effective (Article 23 of the Convention).
Public law contract
Significance of administrative contract
Administrative entity (Country,Local governmentEspecially the contract that is concluded as one partyAdministrative contract(Administrative contract in a narrow sense)..In addition, a contract concluded between administrative entities is also one of the administrative contracts.
There are a wide variety of examples of administrative contracts that administrative entities conclude with private individuals, but there are a wide variety of examples of administrative contracts, such as donation contracts for renting public facilities and granting subsidies, contracts for public projects (above, preparatory administration type), and water supply Water supply (above, benefit administration type), when concluding an agreement such as a pollution control agreement (regulatory administration type), sale of state-owned property to local governments (inter-administrative entity type) can be mentioned.
In the past, contracts concluded by the government were classified into "private law contracts" and "public law contracts", but nowadays, contracts in which the administrative entity is a party to the contract are collectively called "administrative contracts" (administrative contracts). ).
An administrative contract is also a type of contract, but since the administrative entity is the party concerned, special consideration may be required.For example, in principle, any contract may be concluded (principle of freedom of contract), but contracts that give full control of the law and give power to the administrative entity are restricted.Otherwise, powerful administrative action must be done in accordance with the law.Administrative principles by law"Can be watered down.Furthermore, it is believed that discriminatory treatment without a reasonable reason is also prohibited (application of the principle of equality).In addition, although it should be free to conclude a contract, there are cases where it is obligatory to conclude a contract in a benefit contract such as water supply.
In principle, the form of administrative action is the rule of regulation, but the contract method is exceptionally permitted.Regarding the contents of pollution control agreements, there are cases where on-site inspection rights are stipulated as well as stricter regulations than the law stipulates, but it is a judicial precedent that no punishment or compulsory investigation is permitted.
Regarding contracts between administrative bodies, the sale and payment of state-owned property to local governments is a pure civil law contract, but the entrustment of affairs is a delegation of authority, so legal grounds are required.
- Request for collection based on collection order (Supreme Court case, December 48, 12)
- Confirmation of invalidity of sale disposal, etc.(Supreme Court case, December 62, 05)
- Ordinary local public bodiesVoluntary contractA contract concluded in violation of the decree concerning the restriction of the above is subject to private law only if there are special circumstances that would result in the purpose of the decree that restricts the conclusion of the free contract unless the contract is invalidated. It becomes invalid.
- Confirmation of status under water supply contract, etc. (Supreme Court Case February 11, 01)
- Claim for damages (Supreme Court Case February 16, 07)
Local government law
- Conclusion of the contract(234 article）
In principle, contracts shall be open competitive bidding, and designated competitive bidding, free contracts or auctions shall be limited to cases specified by Cabinet Order (Article 234, Paragraph 2).
- Claim for damages (Supreme Court Case February 18, 10)
- The above contractors correspond to the measures of the village that did not appoint a contractor who had been nominated for many years and continuously participated in the designated competitive bidding of public works ordered by the village and did not participate in the bidding after a specific year. It was said that the court's judgment that it was not illegal for that reason was illegal.
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