论“约因论”在英美法系的衰落

约因理论是英美契约法的独特内容,该理论的成熟形态是"交易约因论",即契约的成立以当事人之间的交换关系为基础,通常表现为受诺人的"法律受损"的"约因"就是交易的符号。"约因论"的衰落表现在多方面,既有"禁反言"等新的契约理论对它的挑战,也有成文法对约因要求适用范围的限制,而且,传统的约因法则在司法实践中也发生变革。"约因论"固有的形式主义、僵化性、技术性等弊病决定了其衰落的历史必然性,而"约因论"的衰落也标志着英美契约法从古典向现代的历史转型。

A Decay of the Doctrine of Consideration in Common Law System

Consideration doctrine is unique in contract law of common law system.It attains its maturity where "bargain doctrine" comes into being that prescribes that a contract is established based upon the parties' exchange of promises.As such,consideration,which is usually explained as a "legal detriment to the promisee," can be deemed a symbol of bargaining.The decay of the doctrine of consideration is attributed to many aspects:the challenge posed by new theories such as estoppel;and confinement of application of consideration imposed by statutes.In judicial practice,traditional rules of consideration have also changed.The inherent formalism,rigidness,and technical defects of the doctrine of consideration dooms its decay in the history of development,which,in return,indicates the transition of Anglo-American contract law from the classical stage to a modern one.