What Is a Contract Proposal?

An altruistic contract refers to a contract in which both parties agree to pay to a third party. The debtor has an obligation to the creditor to pay to a third party, and the third party must directly request the debtor to pay itself. Altruistic contracts break the principle of contract relativity, and a third party who is not a party to the contract can obtain the right to request performance from the debtor of the contract.

Altruistic contract

An altruistic contract refers to a contract in which both parties agree to pay to a third party. The debtor has an obligation to the creditor to pay to a third party, and the third party must directly request the debtor to pay itself. Altruistic contracts break the principle of contract relativity, and a third party who is not a party to the contract can obtain the right to request performance from the debtor of the contract.

Chinese name

Altruistic contract

Features

Participate and profit from third parties

Meaning

A contract in which the parties pay money to a third party

Origin

Debt chaos

in spite of

First, on what basis does a third party obtain rights, that is, what is the source or basis of a third party's right to claim? There are mainly the following theories: 1. Creditor's right transfer theory, the claim of a third party is subject to the creditor's right. 2. Direct acquisition: The claim of a third party is obtained directly by law. 3. Management without cause says that the third person is the managed person and enjoys the right of course. 4. The agent said that the third party obtained the right of claim because of recognizing the unauthorized agent. 5. The transfer of claim right said that the third party does not directly transfer the creditor's right, but the claimer's power and the creditor's right is still enjoyed by the creditor. A similar situation exists when the "natural right" is eliminated.

Secondly, when the third party expressly opposes the legal consequences of the parties setting rights or refusing to accept the payment of the third party, that is, when the third party waives the rights, does the creditor have the right to request the debtor to pay himself? the answer should be confirmed. As mentioned above, the creditor's transfer to the third party is only the claiming power. When the third party does not exercise or waive the claiming right, the creditor can exercise the claiming right based on the right.

After the "Contract Law" was passed, scholars have different understandings of the meaning of Article 64 and Article 65. Many scholars understand these two provisions as provisions on contracts involving other parties. Among them, Article 64 stipulates "altruistic contracts" and Article 65 stipulates "burden contracts". Article 64 of the Contract Law stipulates: "If the parties agree that the debtor shall perform the debt to a third party, the debtor shall not perform the debt to the third party or the performance of the debt does not comply with the agreement, and shall be liable to the creditor for breach of contract." Article 65 states: "If the parties agree that a third party should perform the debt to the creditor, if the third party fails to perform the debt or if the performance of the debt does not meet the agreement, the debtor shall bear the liability for breach of contract to the creditor." I believe that Article 64 of the Contract Law is not a provision for altruistic contracts Article 65 is also not a requirement for burden contracts. The main reasons are as follows:

First, from the content of drafting the contract law. The "Proposal on Contract Law Experts" has stipulated the basic rules of altruistic contracts, recognized the third party's right of direct claim, and this right arises from the third party's acceptance to the debtor. The debtor can defend against the creditor's defense against Three people. However, in the "Contract Law" formally adopted, the above provisions were abolished and Articles 64 and 65 were designed. It can be seen that the provisions of the Contract Law are completely different from the design of expert drafts.

Second, from

Altruistic contracts are a type of contract involving him. The contract involving him is the content of the contract, that is, the contract's validity involves a third party contract. In other-related contracts, if the contract right involves a third party, it is an altruistic contract, which can also be called a third party benefit contract, a contract paid to a third party, a contract for a third party to obtain a claim, and a third party. Contracts made with interest, etc .; if the contractual obligations involve a third party, the contract is a burden, also known as a third party payment contract. The so-called altruistic contract refers to a contract in which one party does not set rights for himself, but sets a right for a third party, and makes the other party perform the obligations to the third party. The third party thus obtains a contract that directly requests the performance of the right . Altruistic contracts are a very important type of contract in the laws of various countries, and have received widespread attention from various countries.

Altruistic contract in civil law

A contract is the result of a consensus between the parties. Therefore, the validity of a contract generally does not involve a third party. This is the so-called principle of contract relativity. Altruistic contracts were not initially recognized in Roman law, which is based on the principle that no one may enter into a treaty for others (Alteri stipulati nemo potest) and considers a contract reached for the benefit of a third party to be invalid in principle. The reason for its invalidity is that : "Contracting shall be concluded between the offeror and the offeree" (inter stipulantem et ptomittentem negotium contrahitur). And according to the classical system, the binding of the contract is mainly based on "nrgotium" or "cause", not on meaning. However, out of practical spirit or editor's thought penetration, one finds a reason in this invalid situation: payment to a third person does not bring benefits to creditors. However, when the contractor and the performer have an interest, it is more accurate to say that when the payment to a third party is a payment that should be performed by the contractor, it can be said that the latter is essentially a contract for itself Contracting for the benefit of a third party is effective. After recognizing the validity of the contract between the contracting parties, it is another question whether the third person enjoying the payment also has the right to sue. Roman law recognizes this third party's right to sue in many exceptions, which was stipulated by Justinian or added to the classical literature by him.

Affected by Roman law, French civil law has not abandoned the principle that "no one can conclude a contract for another", and only allows the setting of interests for third parties under certain circumstances. Article 1165 of the French Civil Code states: "A contract is effective only between the contracting parties. Such a contract does not harm the third party, and it can only be enjoyed by the third party under the circumstances specified in article 1121 of this code. Interests. "Article 1121 states:" A contract for the benefit of a third party is a condition for entering into a contract for himself or a condition of gifting property to another person. Those who are willing to enjoy the benefits of the contract cannot be revoked by the person who made the contract. "The above provisions show that French civil law does not fully recognize altruistic contracts, but rather strictly limits altruistic contracts to a certain extent. In French civil law, there have always been different theories as to why a third person acquired rights. One is the transfer theory, which considers that the altruistic contract includes two different stages of behavior: one is for the parties to obtain a right by entering into a contract, and the other is for the parties to transfer their rights to a third party. There is a contract for the transfer of rights between people, and it is for this reason that a third person acquires rights. The second is non-administrative theory, which considers that the parties have entered into a contract with another person for the purpose of establishing rights for a third party in order to "manage" the beneficiary's affairs, and once the third party expresses acceptance, the party's management behavior is recognized. The third is the direct occurrence of rights. It is considered that although the third party is not a party to the contract and is not the agent of one party's behavior, it directly obtains a right because of the contract. This is an exception to the principle of contract relativity. This doctrine is endorsed by most French scholars. The controversy of the French scholar mentioned above shows that the theory of French third party law always regards the third party's interest clause as an "additional condition" attached to the contract concluded by the parties, so it cannot form the basic concept of a profit contract.

Altruistic contract

German civil law has changed the practice of French civil law and made the third-party interest clause independent. The German Civil Code has a special section (section 3) in the second chapter of the "Relationship of Debts" Chapter 2 "Relationship of Debts Due to Contracts", which stipulates in detail the "Agreement on the Performance of Payment by a Third Party" To establish a complete altruistic contract system. Article 328 of the law states: "The parties can contract to make payments to a third party and give the third party the right to request payment directly." The reasons for the validity of the altruistic contract are controversial in German civil law, and there are four main types. Views: First, the promise theory, that is, the parties jointly make an offer, and the third party promises it; second, the agency theory, that is, the reason for the third party to obtain the rights according to the relationship without the right of agency; third, it is said that The third party is the assignment of the rights of the offeree; the fourth is the theory of direct acquisition, that is, the third party acquires the rights directly because of the contract between the parties. Why a third person directly obtains the right is a separate act for a third party; a contractual act; a contractual act that has a legal effect that is beneficial to someone other than the parties. This is a contractual statement and is today Tong said.

Altruistic contract

Since then, civil law in civil law countries has provided for altruistic contracts. For example, "Italian

Altruistic contract

Article 1411 of the Code states: "A contract made for the benefit of a third party is valid when it is in the interests of the contractor. Except to the contrary, the third party obtains the right to fight the promiser on the validity of the contract. However, The contract may be revoked or changed by the contracting party before the third party expresses a desire to obtain contractual benefits. "Article 537, paragraph 1, of the Japanese Civil Code states:" According to the contract, one party shall implement a certain When paying, the third person has the right to request payment directly from the debtor. "

Altruistic contracts in common law

In British law, due to the influence of the principle of contract relativity, the United Kingdom did not recognize the general rules of altruistic contracts, but only judged the third party in some contract lawsuits involving third party interests, based on the so-called "statutory promise ", That is, third parties other than creditors (recipients) who are recognized (promises) through legal fiction also have the right to sue. For example, in relation to contractual rights trusts, insurance contracts, business practices, contracts on land, transfers, agency (including the doctrine of anonymous parties), transfers due to death and bankruptcy or inability to pay, etc. Exceptions to the sexual principle. In the United Kingdom, the principle that a third party cannot obtain rights under contract requires considerable criticism in courts and scholars, because it is only used to destroy the legitimate hope of a third party, and will virtually damage the public in terms of security of transactions. Social interests, and not conducive to trade. Therefore, the Legal Review Committee made the following recommendation in its sixth interim report: If a contract has a clause expressly stipulating that the third party is directly granted an interest, as long as the contractor has the right to effectively raise a claim against the third party In any defence, the third party is entitled to enforce the provision in his own name. The rights of the third party may be revoked due to the provisions of the contract, but they must be agreed by the parties to the contract and must be exercised before the third party expressly accepts or accepts the contract. But it was not until 1996 that the Law Commission of England and Wales introduced a draft bill on the "Contract Protection of Third Parties", again proposing "to make it easier for the contractor to grant the right to enforce the contract to a third party outside the contract. "And after the British Parliament passed the implementation on November 11, 1999, the issue of protecting the rights of third parties was truly resolved in legislation.

In US law, US courts have long acknowledged altruistic contracts. Lawrence v. Fox, heard by the New York Court of Appeals in 1859, is considered to be the first jurisprudence to recognize third-party litigation rights in US contract law. The "Restatement of the US Contract Law" of 1933 specified the protection of altruistic contracts in detail and divided the third party into three categories: first, beneficiaries (Donne beneficiaries), beneficiaries (Creditor beneficiaries), and unexpected beneficiaries (Incidental beneficiaries). The first two types of beneficiaries can obtain legally enforceable rights according to the contract, while accidental beneficiaries cannot obtain any rights according to the contract. The 1981 Restatement of the Third Contract Law made some amendments to the legislation on altruistic contracts. The creditor and the beneficiary were collectively referred to as "intende beneficiaries". The contract stipulates that if the beneficiary refuses to accept the contract, it shall be deemed that the rights have not been obtained from the beginning. The beneficiary's uncertainty does not affect the validity of the contract. As long as the beneficiary can determine the contract, the promisee can oppose the beneficiary based on the defense arising from the contract. If the contract does not give the beneficiary an irrevocable right, the parties have the right to change or cancel the contract, unless the beneficiary's trust in the contract has substantially changed his status, or a lawsuit has been instituted, or Show the parties to the contract acceptance of the benefit.

Altruistic contract

Second, the function and reasons of altruistic contracts Altruistic contracts have become an important system of contract law in various countries, which is a breakthrough in the principle of contract relativity. Some scholars argue that the recognition of altruistic contracts is based on the following three reasons: one is based on respect for the parties' intentions, the other is the need to protect the trusted interests of third parties, and the third is the consideration of cost savings. The reason why altruistic contracts can be recognized by the laws of various countries is that it can meet the special needs of the parties to the contract and has special functions, which mainly reflects: On the one hand, altruistic contracts are convenient for the parties. In altruistic contracts, creditors often have some sort of payment obligation to third parties, and creditors should have fulfilled this obligation. However, by signing an altruistic contract with the debtor, the creditor does not perform the obligation to the third party, but causes the debtor to perform the obligation directly to the third party. In this way, one person's performance actually eliminated the debts of the two, and achieved the effect of the creditor's own performance to a third person, which shortened the performance time and simplified the performance procedures. Therefore, some scholars refer to the altruistic contract with this function as the "shortened third-party benefit contract"; on the other hand, the altruistic contract is helpful to assist the third party. In altruistic contracts, sometimes the creditor has no obligation to pay to the third party, but the creditor takes care of the third party and causes the debtor to perform the obligation to the third party, thereby achieving the purpose of assisting the third party. If a beneficiary's life insurance contract is specified, the insurer signs a contract with the insurance company in order to assist the beneficiary. Therefore, some scholars call the third-party interest contract with this function "a third-party interest contract with care".

The altruistic contract itself is not a specific contract type, but a summary of the specific contract between the parties to which the third party's interest contract is added. In terms of its structure, altruistic contracts, although there are claims that the basic contract and the third party's interest agreement are two contracts coexist, and there is a master-detail relationship, but the claim that the two constitute a contract is the general theory. In a contract, why is the debtor willing to agree with the creditor to set rights for a third party, and why does the creditor want the debtor to perform its obligations to the third party? There must be a reason relationship. Among them, the former is the relationship between creditors and debtors, which is called compensation relationship; the latter is the relationship between creditors and third parties, which is called consideration relationship.

The compensation relationship is the legal relationship between the creditor and the debtor. This legal relationship is a debt relationship, which can only arise from a contract, not from other reasons. In fact, the compensation relationship is the basic contractual relationship between the parties. This contractual relationship can be dual-service and paid, such as sales contract, transportation contract, insurance contract, etc., and it can also be single-service and unpaid, such as gift contract and loan contract. Some people think that the compensation relationship does not necessarily have to be a creditor's right arising from the contract. It can also be a debtor's right based on other reasons, for example, a person who is liable for damages based on tort and pays a third party instead of to the creditor A third-party benefit contract for payment. The compensation relationship can only be a debt relationship arising from the contract. Because in the altruistic contract, the compensation relationship can only be beneficial to the existence of the other contract if it is reflected through the basic contractual relationship between the parties. In the case of the debt relationship based on torts and other reasons, the creditor causes the debtor to perform to a third party to perform in place of the creditor. This is not a third party interest contract issue, but only a third party performance issue.

The consideration relationship is the legal relationship between the creditor and the third party, also known as the interest relationship. This type of legal relationship is diverse. In terms of nature, it can be divided into debt relationships and other legal relationships. The debt relationship includes all debt relationships based on contracts, improper gains, non-cause management, torts, etc. Other legal relationships are legal relationships other than debt relationships; from the perspective of reasons, they can be divided into The consideration relationship for the interests of creditors and the consideration relationship for the interests of third parties. The consideration relationship for the benefit of the creditor is the legal relationship that the creditor has with a third party for the benefit of the creditor, either to destroy the existing debt or to obtain the creditor's right. In this case, the creditor is for the benefit of the third party only in form, but for his own benefit. This is the case for the "shortened third party benefit contract". The creditor's consideration relationship for the benefit of the third party is the relationship between the creditor and the third party for the benefit of the third party. In this case, the creditor is in the interests of a third party, both formally and essentially. This is the case for "contracts of interest for third parties".

Compensation relationship and consideration relationship are two kinds of interrelated and independent cause relationships in altruistic contracts, but they play different roles in altruistic contracts. The compensation relationship plays a decisive role in the establishment of the interests of third parties. Only when the compensation relationship exists, the altruistic contract exists, the compensation relationship does not exist (such as invalidity or cancellation), and the altruistic contract does not exist. Without a decisive role, the parties need not indicate the existence of the consideration relationship when entering into an altruistic contract. The validity of the consideration relationship has no effect on the establishment of the altruistic contract. Therefore, the debtor shall not refuse to perform to the third party on the ground that the consideration relationship is invalid. If the debtor has performed to the third party, the debtor shall not request the return, but only the creditor may request the third party to return unjustly.