YArticle 471 of the Civil Code of the People’s Republic of China (hereinafter referred to as “the Civil Code”) stipulates that contracts may be formed not only through offer and acceptance but also through “other means.” However, the Civil Code does not provide further clarification on what “other means” entail. This statutory provision represents a departure from the traditional theory of contract formation, which requires a “meeting of the minds.” This study seeks to identify the jurisprudential basis of the Civil Code as a positive law and finds that the theory of de facto contracts, proposed by German scholar Günter Haupt in his lecture titled “On Factual Contractual Relationships” provides a theoretical foundation for the Civil Code’s inclusion of alternative methods of contract conclusion. The theory of de facto contracts argues that for certain types of conduct, the formalities of offer and acceptance are not essential. Instead, contracts can be established through factual processes. This view introduces flexibility to the otherwise rigid doctrine of contractual freedom, allowing for more streamlined and logical judicial analysis. It also balances economic efficiency with principles of fairness and justice, serving the normative values underlying contract law. In this paper, the author proposes that the term “de facto contract” be precisely defined within the context of legislative and judicial practice. This article also recommends limiting the original concept described by Haupt to contracts formed based on legally prescribed factual processes or behaviors. Such contracts can be tentatively termed as “statutory de facto contracts,” which could be examined as a distinct category of contracts in legal theory.
"A Study on the Contemporary Value of the De Facto Contract Theory: From the Perspective of Article 471 of the Civil Code of the People’s Republic of China,"
Contemporary Social Sciences:
5, Article 6.
Available at: https://css.researchcommons.org/journal/vol2023/iss5/6