How American Common Law Doctrines May Inform Mainland China to Achieve Certainty in Land Sale Contracts
26 Pages Posted: 1 May 2016 Last revised: 6 Nov 2018
Date Written: November 22, 2015
This paper explores one of the most significant problems confronting Mainland China in relation to contract and property law today, which is, whether or not written form is mandatory for land sale contracts. In practice, Chinese courts have delivered contradictory cases in relation to contractual form. Some courts regard the written form as being mandatory and therefore no contractual remedies are available to enforce oral land sale contracts. In contrast, other courts hold the opposite view that oral contracts may still have some degree of contractual effect. This results in uncertainty throughout Mainland China, which may cause injustice and unfairness to claimants and may undermine the authority of the law and the courts. This paper argues that the solution to the problem is to propose a legal reform initiative to articulate that written form is mandatory for land sale contracts. This initiative will end the contradictory cases and ensure claimants are treated equally at law in this particular matter.
In order to support and underpin the legal reform initiative, this paper utilizes American doctrines to enrich the Chinese literature and draws on the American experience (particularly Professor Lon Fuller's analysis) in establishing that written form is desirable for land sale contracts in Mainland China. This is through a comparative law approach known as functionalism that examines the similarities and differences of the compared jurisdictions.
Furthermore, this paper has analyzed Professor Llewellyn’s empirical study as to why written form is desirable in commercial settings. This study not only reinforces the attributes of formality, but also provides Mainland China with empirical evidence of the operation of written form in the real world.
Given the importance of land contracts, the legal reform initiative proposed in this paper may have social, political and economic and legal significance in a transitional China.
Keywords: Written Form, Contract, Land, China, Comparative law, Lon Fuller, Formality Functions, Karl Llewellyn
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