Three elements of contract establishment: judging whether a contract is established from the elements that constitute a contractual relationship, we can analyze it from the following three aspects: whether the subject of the contractual relationship exists; Whether the object of the contractual relationship exists; Whether the content of the contractual relationship exists. Only when these three questions are answered positively at the same time can the contractual relationship be established. Therefore, the establishment of a contract should meet three conditions: the existence of the subject of the contractual relationship, the existence of the object of the contractual relationship and the existence of the content of the contractual relationship. These three conditions are called the three elements of a contract.

Existence of subjects of contractual relationship: that is, the establishment of contractual relationship requires the existence of more than two subjects of contractual relationship. The stipulation that "a person cannot conclude a contract with himself" in Anglo-American law refers to this condition. Does the subject of contractual relationship here refer to the subject of contract or the subject of contracting? In the first chapter, the subject of contractual relationship, as we have already introduced, the so-called contractual subject refers to the subject who actually undertakes contractual rights and obligations; The contracting party refers to the person who actually enters into a contract. There are five situations in the relationship between the contracting subject and the contracting subject: it can be combined into one, that is, the contracting subject is the contracting subject; It can also be separated from each other, that is, the contracting subject and the contracting subject are not the same person, for example, an agent can be entrusted to conclude the contract; However, it is meaningless in reality to have only the subject of contract without the subject of contract, and neither of them. The last situation is that there is only the signing subject without the signing subject (for example, A signs the contract in the name of fictitious company B). This situation constitutes fraud because of the fictional subject who actually undertakes the rights and obligations of the contract, which is obviously illegal and has no legal effect, and should bear the responsibility for contracting negligence. However, the contract is still valid because there is an agreement or agreement on the expression of will. Therefore, the existence of the contracting subject, rather than the existence of the contracting subject, is the premise of the existence of the contractual relationship.

The object of the contractual relationship exists: that is, the contractual object is certain and possible. The determination of the subject matter of the contract includes two situations: confirmed and determinable, with the undetermined or undetermined subject matter as the subject matter of the contract. For example, generally speaking, I want to sell you a batch of goods or lend you a sum of money, and I can't think that there is a contractual relationship between the parties; The possibility of the subject matter of the contract means that the subject matter of the contract can be paid, performed or realized, and the non-payment as the subject matter of the contract constitutes non-payment. Payment cannot be divided into initial impossibility and subsequent impossibility, subjective impossibility and objective impossibility, temporary impossibility and permanent impossibility, factual impossibility and legal impossibility. From the point of view of contract formation, when concluding a contract, the subject matter of the contract may mean that it is impossible from the beginning, objectively impossible forever (for example, I want to sell the atomic bomb), and I have to bear the responsibility for concluding the contract, and then what I can't do subjectively temporarily involves the performance of the contract and the liability for breach of contract. However, some people think that the condition of "the possibility of the subject matter" should be attributed to the validity of the contract, because it is very difficult to distinguish the initial performance and subsequent performance of the subject matter, which is of little practical significance. In China's judicial practice, such problems are treated as fraud, major misunderstanding, etc., that is, as invalid contracts. But it doesn't make sense in theory. A contract without a goal can be said to be irrelevant and meaningless.

The subject matter of the contract must be determined. It means that the subject matter of the contract has been determined from the beginning and can be determined. Regarding whether the subject matter of the contract is necessary, the former German Civil Law and Taiwan Province Civil Law stipulate that it is an effective requirement of the contract. And distinguish between the initial impossibility and the subsequent impossibility. However, there is no need for the state to intervene whether the subject matter of the contract shall generally not affect the national interests and social interests. If the contract comes into effect, even if the subject matter cannot be performed, the breaching party can be held accountable. For example, the newly revised German Civil Code in 2002 no longer regards the possibility of the subject matter as an effective element of the contract, and cancels the distinction between the initial impossibility and the subsequent impossibility.

The content of contractual relationship exists: contractual relationship is essentially an agreement that has been formed, that is, the parties have reached an agreement on their rights and obligations. Whether there is a contractual relationship depends on whether there is such an agreement in addition to the above two conditions. The criterion for reaching an agreement is that all parties agree on the expression of their will. Agree with you? This problem is called "ideal range". The original "Economic Contract Law" stipulated that "the main clauses are consistent in meaning", that is, the contract was established. However, the new "contract law" does not make clear provisions on this. According to the spirit stipulated in Article 6 1 and Article 62 of the new Contract Law, it is more relaxed than the original provision of "expressing agreement on the meaning of main clauses", and the parties can either supplement the agreement or make an explanation by the judge. Other countries have also experienced a regulatory process from strict to loose.

Second, the special elements of the establishment of the contract

1. statutory additional conditions

Legal conditions for the establishment of a contract: the establishment of a contract may also require legal additional conditions. There are two main situations: substantive contract and substantive contract.

Material contract: Material contract is a practical contract. The establishment of an actual contract requires not only the coincidence of the two parties, but also the delivery of the goods. For example, Article 367 of the Contract Law stipulates: "A custody contract is established when the deposit is paid, unless otherwise agreed by the parties." Article 2 10: "The loan contract between natural persons shall come into effect when the lender provides the loan." Article 293: "When the carrier delivers the passenger ticket, the passenger transport contract is established, unless the parties have otherwise agreed or have other trading habits." Article 186: "The donor may revoke the gift before the right to donate the property is transferred. The provisions of the preceding paragraph shall not apply to gift contracts or notarized gift contracts with the nature of social welfare and moral obligations such as disaster relief and poverty alleviation. " In addition, the loan contract is generally considered as a practice contract, and its establishment also needs to be conditional on the delivery of the borrowed goods.

Necessary contract: the establishment of a necessary contract requires that the contract must have a specific form, usually in written form. Paragraph 2 of Article 10 of the Contract Law stipulates that written form shall be used if it is required by laws and administrative regulations. Such contracts are generally important contracts. In order to make the parties more cautious when concluding a contract, reduce disputes after conclusion and facilitate the preservation of evidence, many laws and administrative regulations in our country stipulate that a contract should be established in written form. There are many such provisions in the specific provisions of the Contract Law, such as Articles 197 (loan contract), 2 15 (lease contract with a term of more than six months), 238 (financing lease contract), 270 (construction project contract), 330 (technology development contract) and 238. There are also labor contract (Labor Law) Article 19, real estate transfer contract, real estate mortgage contract, house lease contract (Articles 40, 49 and 53 of Urban Real Estate Management Law), ship transfer contract (Article 9 of Maritime Law) and insurance contract (Article 12 of Insurance Law).

In addition, the specific forms also refer to authentication, notarization, registration, examination and approval, auditing and other forms. According to the law, some contracts must have one of these forms before they can be regarded as established.

2. Agreed additional conditions

Agreed conditions for the formation of a contract: additional conditions may be agreed upon for the formation of a contract, for example, the parties may agree to use written form as a condition for the formation of a contract. Paragraph 2 of Article 10 of the Contract Law stipulates: "If the parties agree to use written form, it shall be in written form." The "agreement" mentioned here means that the parties make an agreement on the conclusion of a contract; As for the parties who directly conclude a written contract, there is of course no need to make another agreement to conclude a contract in writing. The parties may also agree to pay a deposit as a condition for the establishment of the main contract.

Confirmation of contract: Article 33 of the Contract Law stipulates: "If the parties conclude a contract by means of letters or data messages, they may request to sign a confirmation letter before the contract is established. The contract was established when the confirmation letter was signed. " Confirmation is actually linked to acceptance. After the two sides reach an agreement, one party requires that its final confirmation shall prevail, so that the confirmation he signed is actually his final, clear and affirmative commitment to the offer. Before signing the confirmation letter, the two sides reached only a preliminary intention, which is not really binding. It can be seen that in a contract concluded in the form of letters or data messages, if the parties request to sign a confirmation letter, the confirmation letter is actually the final part of the acceptance, and it is an important element to judge whether to make a commitment, and it is not a special requirement of the contract.

Case: The plaintiff complained to the court that she was widowed and sickly, and her life needed to be taken care of by others after her husband died. From 65438 to 0999, her colleague's daughter was accused of taking care of the plaintiff's daily life, and then the defendant asked the plaintiff to give her the house in her name. On June 17 of the same year, the plaintiff gave his own house to the defendant, and the gift book also stated that "this gift was established after the donee accepted the gift and went through the house transfer formalities", and the defendant also signed the gift book, both of which were notarized, but the house transfer formalities were not gone through. Now, because the defendant did not take care of the plaintiff, the court was originally asked to cancel the gift contract. Question: How to understand the special terms in the gift contract?

Analysis: First of all, the contract concluded by both parties at that time cannot be regarded as an appointment contract because it is stated in the gift book that "the gift will be established after the donee accepts the gift and goes through the house transfer formalities". Compared with this contract, an appointment contract refers to a contract that the parties agree to conclude in the future, and this contract refers to a contract concluded in the future to fulfill the appointment contract. The effect of this contract is different from that of an appointment contract. The effectiveness of an appointment contract lies in the fact that the parties should conclude the contract, but there is no substantive relationship between the two parties. The effectiveness of the contract lies in determining the relationship between the rights and obligations of the parties. As far as this case is concerned, in the contract concluded in June 1999, both parties did not agree to conclude another contract in the future, so this contract was concluded at that time.

Secondly, this special explanation in the gift letter cannot be understood as a "conditional contract" because: First, Article 45 of the Contract Law stipulates that "the parties may stipulate the conditions for the validity of the contract. A contract with effective conditions shall take effect when the conditions are met. The stipulation that a contract with dissolution conditions is invalid when the conditions are met is about the conditions attached when the contract becomes effective or invalid, not about the conditions attached when the contract is established. Secondly, according to the general theory, the conditions attached to a conditional contract must be agreed by the parties and cannot be legal, and the conditions of "handling the house transfer procedures" attached to the gift contract are exactly what the real estate transfer contract stipulated in the Urban Real Estate Management Law should have. Therefore, even if the agreed conditions are interpreted as the effective conditions attached to the gift contract, it is redundant and meaningless and will not affect the establishment and effectiveness of the gift contract; Third, the plaintiff sued the court, and the lawsuit request was to cancel the gift contract, indicating that the plaintiff has recognized the establishment and effectiveness of the contract, because the revocable contract must be an established and effective contract.

Finally, this special explanation in the gift book should be understood as a contract with conditions of establishment, but it is not a contract with legal conditions of establishment, but a contract with agreed conditions of establishment. The two parties to a contract may stipulate the conditions for the formation of a contract, for example, "if the parties conclude a contract in the form of letters, data messages, etc." They can ask to sign a confirmation letter before the contract is established. The contract was established when the confirmation letter was signed. " (Article 33 of the Contract Law) In practice, the parties may also stipulate that a contract is formed when one party provides a guarantee (such as paying a deposit and providing a guarantor); It can be agreed that the contract will be established when one party pays the advance payment; It can be agreed that notarization or witness is the condition for the establishment of the contract. This shows that a contract can stipulate additional conditions for its establishment according to the will of the parties to show that it is not bound and prevent the legal effect of the contract. In this case, the contract does not actually exist, let alone take effect, so what actually exists at this time is only a preliminary agreement, which is called "incomplete agreement" in Anglo-American contract law.

However, there are no general provisions on the conditions attached to the establishment of contracts in China's contract law, and most contract law textbooks have not discussed them. Article 2. 13 of the Principles of International Commercial Contracts formulated by the International Institute for the Unification of Private Law (UNIDROIT) 1994 stipulates: "In the negotiation process, if one party insists that the conclusion of a contract is conditional on reaching an agreement on specific matters or forms, it is not allowed to conclude a contract before reaching an agreement on these specific matters or forms." The association's interpretation of this clause is: under certain circumstances, the parties to a contract may think that a particular matter is very important, and if the two parties cannot solve this matter satisfactorily, they have no intention to conclude a binding contract. But this intention must be expressed very clearly, and simple expression is not enough to prove the existence of this intention, so the word "persistence" is used in the article.

The main differences between a conditional contract and a contract with effective conditions are as follows: a conditional contract is not established when the conditions are not met; A contract with effective conditions is established, but the contract does not take effect when the attached conditions are not fulfilled; If the conditions are established, the parties may deliberately make it not established, but it can only lead to the consequences of the contract not being established; Effective conditions, if "the parties improperly prevent the realization of the conditions for their own interests, it is deemed that the conditions have been realized; If the conditions are improperly publicized, it is deemed that the conditions have not been met. " (Paragraph 2 of Article 45 of the Contract Law)

In this case, the two parties to the gift contract agreed that "the gift will be established after the donee accepts the gift and handles the house transfer procedures". Literally, this is a condition attached to the gift contract, but it cannot be understood as a condition attached to the gift contract, because the plaintiff, that is, the donor, did not take the house transfer procedure as a condition for the establishment of the gift contract, and put forward it separately with special emphasis, and made it very clear whether it would be fulfilled according to his future wishes.

To say the least, even if this agreement is understood as the condition that the donor uses to control the establishment of the gift contract, it will lead to self-contradiction because this condition directly violates the purpose of the gift contract, so that this condition will not have an impact. Because in the house gift contract, it is a legal obligation for the donor to handle the house transfer formalities after concluding the gift contract. On the one hand, the donor expressed his willingness to give the house to the donee free of charge, on the other hand, it was regarded as a prerequisite for the establishment of the gift contract. This is tantamount to saying that he is willing to give the house, but whether to fulfill the gift depends on the donor's own future wishes. Therefore, the agreement should not affect the establishment of the gift contract, and the court should take the notarized gift and the donee as the criteria for determining the establishment and effectiveness of the contract.

Three. Time and place of contract establishment

1. time of contract establishment

The time and place of the establishment of a contract involves the occurrence of the rights or obligations and responsibilities of the parties. There are mainly the following situations:

The contract is established when the acceptance takes effect: this refers to non-contract.

This contract is established when both parties sign or seal it: this refers to the basic contract. Article 32 of the Contract Law: "If the parties conclude a contract in the form of a contract, the contract is established when both parties sign or seal it."

When signing the confirmation letter, the contract is established: the main contract also has the form of contract confirmation letter. Article 33 of the Contract Law: "If the parties conclude a contract by letter or data message, they may request to sign a confirmation letter before the contract is established. The contract was established when the confirmation letter was signed. "

The time when a contract is established is the time when the counterpart completes an act according to the promise, and the time when the offeror receives the result of the act is the time when the contract is established.

2. The place where the contract was established

The place where the contract is established involves the jurisdiction of the case. There are mainly the following situations:

The place where the acceptance takes effect is the place where the contract is established: this refers to unnecessary contracts. Article 34 of the Contract Law: "The place where the acceptance takes effect is the place where the contract is established. Where a contract is concluded in the form of a data message, the recipient's principal place of business is the place where the contract is established; If there is no main place of business, its habitual residence is the place where the contract is established. Unless otherwise agreed by the parties, such agreement shall prevail. "

The place where both parties sign or seal the contract or confirmation letter is the place where the contract is established: this refers to the basic contract. Article 35 of the Contract Law: "If the parties conclude a contract in the form of a contract, the place where both parties sign or seal is the place where the contract is established."

Place of formation of a contract to realize the will: unless the offeror makes a statement in advance or the trading habits are conclusive, the place where the offer takes place is the place where the contract is formed.