¹⁴⁶ See below.

¹⁴⁷ While there are compilations of decrees, etc., there does not appear to be a comprehensive compilation of all relevant decrees on any topic. Moreover, it is not unlikely that many important laws are not published.

¹⁴⁸ See note 25 in Part. I.

¹⁴⁹ Aside from the usual danger inherent in relying on any single source, there are additional dangers at this time in relying on a source produced by the Chinese government and relating to the civil law. First, it may be merely propaganda. Second, even if it is not merely propaganda, lack of trained personnel to apply policies stated in the source may make it a nullity in effect. Third, in any event, the régime is still pressing the revolution and may not be willing to subject itself to law, and it may be said that on no account is it willing to adhere for long to any unchanging set of laws. Fourth, the law set forth in the source appears to be merely a carbon copy of Russian law, not something the régime has developed itself and, therefore, not something to which it has a strong commitment.

The facts suggest that while these dangers do exist they are not sufficient to preclude substantial reliance on this source for purposes of reaching tentative conclusions.

It appears unlikely that The Book was compiled and published merely for the ends of propaganda. The Book purports to have been compiled from a series of lectures given in early 1957 to students—prospective political-judicial cadres—at the Institute of Civil Law, Central Political-Judicial Cadres' School. It was revised and published in 1958 purportedly as “a reference for incumbent political-judicial cadres …” The Book, p. 7.Google Scholar

Thus, The Book appears to have been written as a practical handbook to guide the enforcement of state policies throughout the country. In view of the strategic importance assigned to the training of cadres and their role in implementing the policies of the regime, it is highly improbable, accepting the purported purpose of The Book, that it is mere propaganda. And, since the need for better-trained cadres has been acknowledged repeatedly by the régime, the publication of this book seems in fact to have been designed to answer that need.

The second danger—that the book will have no practical significance because of the lack of trained personnel to execute its policies—is a real one. However, this lack of trained personnel in China is not confined to the administration of law, and one might as well in earlier years have refrained from speaking of the role of statistical analysis for the same reason. Although the lack of such personnel will impede execution initially, it is likely that the situation will improve, as it already has in the realm of statistics. Moreover, the fact that the régime supports these policies has great importance without regard to their immediate effect in practice.

The third danger can be virtually discounted in light of the Russian and early Chinese experience. While it is clear that in the near future law will not assume the importance it has in the Occident, it is also clear that it has and increasingly will continue to perform necessary functions for the régime. As suggested above, the question of ultimate subjection of the régime to the rule of law will not arise in the ordinary cases, and in this sphere the role of law will be vital. The Communists' experiences have illustrated that law can be used to implement the goals of the revolution, particularly to realise the goals of economic planning. Although the specifics of “contract” law may be modified as the context changes, it is probable that set in the context of economic planning, the broad policies will remain relatively constant.

Finally, the fact that the law presented in The Book for the most part is merely a transplanting of Russian law makes it more, not less, likely that the régime is strongly committed to it. The régime, having previously adopted the Russian model for economic development, will almost certainly utilise the Russian experience in pressing that development. It should be emphasised that the Chinese Communists have adopted Russian law as it developed under economic planning, not simply as it appears in the 1922 Code. Of course, the Chinese régime will continue to mould its own actions to fit conditions in China, but unless it rejects the fundamentals of the Russian model it is unlikely to reject the Russian experience.

This common-sensical inference is buttressed by the ideological commitment to the proposition that law is a reflection of economic conditions, that economic conditions require overall economic planning and, therefore, that law should reflect the needs of economic planning. Moreover, the Chinese have not accepted Russian law in every detail. The existence of a degree of selectivity indicates that the adoption of Russian law manifests a conscious commitment.

¹⁵⁰ See Gsovski, , Vladimir, , Soviet Civil Law (Ann Arbor: Un. of Michigan Law School, 1948), I, pp. 15–235Google Scholar, for a translation of the 1922 Code. It should be noted that technically it is a misnomer to call this Code the Russian or Soviet Civil Code. As Gsovski points out in this volume, pp. 4–6, this Code is the Code of one of the Republics, the R.S.F.S.R., of the Soviet Union. And, while many of the other republics have copied this Code verbatim or with only minor changes, there appears to be no all-union code. In this latter connection see also Berman, , “Soviet Law Reform,” op. cit., pp. 1199–1202.Google Scholar

¹⁵¹ For excerpts from the German Civil Code (BGB) of 1900 see von Mehren, , The Civil Law System (Englewood Cliffs: Prentice-Hall, 1957), Appendix B, pp. 874–899.Google Scholar It should be noted that the laws of the Republic of China were also strongly influenced by German laws and -therefore are quite similar in this respect. The possible relationship between Republican and Communist law is however not explored in this article.

¹⁵² Gsovski, , Soviet Civil Law, I, p. 415.Google Scholar

¹⁵³ The Book, pp. 37–116.Google Scholar

¹⁵⁴ Ibid. pp. 117–175.

¹⁵⁵ Ibid. pp. 176–199.

¹⁵⁶ Ibid. pp. 215–324.

¹⁵⁷ ibid. pp. 45, 69–72, 176 et seq.

¹⁵⁸ Ibid. p. 177; see ibid. pp. 65–77 for a discussion of the subjects of juristic relations.

¹⁵⁹ Ibid. p. 69; see ibid. pp. 69–72 for a discussion of a citizen's disposing capacity.

¹⁶⁰ See ibid. pp. 180–182 for a discussion of these three sources of obligations.

¹⁶¹ See excerpts quoted in von Mehren, , The Civil Law System, op cit., pp. 463–464.Google Scholar

¹⁶² Idem.

¹⁶³ Gsovski, , Soviet Civil Law, 1, op. cit., p. 424.Google Scholar

¹⁶⁴ With regard to both German and French law see von Mehren, , “Civil Law Analogues to Consideration: An Exercise in Comparative Analysis,” Harvard Law Review, LXXII, p. 1009.Google Scholar

¹⁶⁵ In light of the discussion in von Mehren, ibid., it appears, for example, that the evidentiary and cautionary functions of consideration as a formality in effect are performed by direct formal requirements. In this regard see Gsovski, , Soviet Civil Law, 1, pp. 431–432.Google Scholar With respect to the function of screening individual transactions for unfairness see Gsovski, ibid. p. 425, with reference to the right of avoidance in situations where a party “under the pressure of distress” has entered a contract “clearly unprofitable to him.”

¹⁶⁶ The function of consideration at common law to screen individual transactions for gross unfairness is performed by a direct right to redress in Chinese law. See below, p. 135, for reference to the right of an oppressed party to avoid a contract that is obviously unfair if that party was in an unfair bargaining position when he concluded the “contract.”

¹⁶⁷ The Book, p. 204.Google Scholar

¹⁶⁸ Ibid. pp. 204–208; and for a brief discussion of the comparative practice of “freedom of contract” in Western and Soviet law see Herman, , The Nature and Functions of Law (Brooklyn: Foundation Press, 1958)Google Scholar, Part III, particularly pp. 93–96.

¹⁶⁹ See below.

¹⁷⁰ The Book, p. 203.Google Scholar

¹⁷¹ Ibid. pp. 203–204.

¹⁷² BGB, Articles 145–148Google Scholar, translated in von Mehren, , The Civil Law System, p. 881.Google Scholar

¹⁷³ Idem.; see also excerpts in ibid. pp. 492–493 regarding the effect of the clause “freibleibend.”

¹⁷⁴ Ibid. pp. 492–493, discussing the impact of the rules regarding offer and acceptance in the common law, French law and German law.

¹⁷⁵ The Russian Civil Code, sections 132–135, translated in Gsovski, , Soviet Civil Law, II, pp. 111–112.Google Scholar

¹⁷⁶ The Book, pp. 180 and 236.Google Scholar

¹⁷⁷ Ibid. p. 213.

¹⁷⁸ Yang and Li, “Apply the Contract System,” op. cit.

¹⁷⁹ See discussion in von Mehren, , The Civil Law System, op. cit., pp. 472–473.Google Scholar

¹⁸⁰ Restatement of the Law of Contracts (St. Paul: American Law Institute Publishers, Student ed., 1933)Google Scholar, sec. 12 and comments thereto.

¹⁸¹ The Book, pp. 258 and 282–283.Google Scholar

¹⁸² Restatement, sec. 45.Google Scholar

¹⁸³ See note 181.

¹⁸⁴ The Book, p. 281.Google Scholar

¹⁸⁵ For example, see below for reference to limitation of a carrier's liability for breach of contract.

¹⁸⁶ von Mehren, , The Civil Law System, p. 473.Google Scholar

¹⁸⁷ The Book, p. 211.Google Scholar It is interesting to note that the reasoning in the section of The Book, dealing with terms of contracts, pp. 208–211, is not unlike that in the famous common law cases of Scammell v. Ouston, in the House of Lords [1941] 1 All E.R. 14, and Foley v. Classique Coaches, Ltd. [1934] 2 K.B. 1, appearing in Fuller, , Basic Contract Law (St. Paul: West Publishing Co., 1947), pp. 76 and 81 respectively.Google Scholar

¹⁸⁸ The Book, pp. 200–213.Google Scholar

¹⁸⁹ Idem; for a brief discussion of “the basic conditions of supply” in Russia, see Berman, , Justice, op. cit., p. 71Google Scholar; and see Berman, , “Commercial Contracts,” op. cit., pp. 201–202.Google Scholar

¹⁹⁰ The Book, pp. 227–232.Google Scholar

¹⁹¹ Ibid. p. 234.

¹⁹² Ibid. p. 201; see below for a discussion of penalties.

¹⁹³ Ibid. p. 80.

¹⁹⁴ The Russian Civil Code, section 137 (a), translated in Gsovski, , Soviet Civil Law, II. op. cit., p. 112.Google Scholar

¹⁹⁵ The Russian Civil Code, section 135, ibid. p. 112; see also Gsovski, ibid. I, pp. 431–432.

¹⁹⁶ The Book, p. 316.Google Scholar

¹⁹⁷ Ibid. pp. 79 and 213–214.

¹⁹⁸ Ibid. pp. 278 and 80.

¹⁹⁹ The Marriage Law of the People's Republic of China, Article 6, translated in Yang, C. K., The Chinese Family in the Communist Revolution (Cambridge: Technology Press, 1959), p. 222.Google Scholar

²⁰⁰ The Book, pp. 80–81.Google Scholar

²⁰¹ Berman, , “Commercial Contracts,” op. cit., p. 210.Google Scholar

²⁰² Gsovski, , Soviet Civil Law, I, p. 425.Google Scholar

²⁰³ For a brief discussion of uniqueness and specific performance at common law, see Fuller, , Basic Contract Law, op. cit., pp. 27–31.Google Scholar

²⁰⁴ See Berman, , Nature and Functions, op. cit., p. 390et seq.Google Scholar

²⁰⁵ Restatement, op. cit., sec. 358 et seq.

²⁰⁶ Ibid. sec. 347.

²⁰⁷ Ibid. sec. 275.

²⁰⁸ See below.

²⁰⁹ See discussion in von Mehren, , The Civil Law System, op. cit., pp. 501–505.Google Scholar

²¹⁰ For example, by the mid-1930s Mao had evolved a strategy whose basic features, at least by implication, were opposed to important features of Marxism-Leninism. For a fine and detailed discussion of this see Schwartz, Benjamin I., Chinese Communism and the Rise of Mao (Cambridge: Harvard Un. Press, 1958), particularly pp. 189–204.Google Scholar

²¹¹ The Book, pp. 180–181.Google Scholar

²¹² Ibid. pp. 180 and 236.

²¹³ For example, ibid. p. 281.

²¹⁴ See above.

²¹⁵ The Book, pp. 234–237.Google Scholar

²¹⁶ Idem.; for a brief discussion of general, local and direct contracts in Soviet law see Gsovski, and Grzybowski, , Government, Law and Courts in the Soviet Union and Eastern Europe (New York: Praeger, 1959), II, pp. 1149–1150.Google Scholar

²¹⁷ The Book, p. 236.Google Scholar It is important to note that it is not clear which administrative organs decide such disputes. So long as the disputes are between enterprises that are under the same specialised industrial company or the same ministry, the problem of which organ decides is relatively unimportant. However, since there is no public arbitration organ in China comparable to Gosarbitrazh in Russia (see The Book, p. 214Google Scholar; and see Berman, , Justice, op. cit., p. 63et seq.)Google Scholar, it is uncertain how disputes between enterprises under different ministries will be settled where the ministries themselves are unable to agree. It seems unlikely that the State Council, the only executive body above the ministries, would take the trouble to settle all such disputes itself.

²¹⁸ The Book, p. 228.Google Scholar

²¹⁹ Ibid. p. 241.

²²⁰ Ibid. pp. 242–244 and 191.

²²¹ Ibid. pp. 231–232.

²²² Zile, Z. L., Remedies for Breach of Contractual Obligations in Soviet Law (Student Paper, Harvard Law School, Comparative Legal Research, 1960), p. 14.Google Scholar

²²³ The Book, pp. 321–332.Google Scholar

²²⁴ Ibid. p. 240.

²²⁵ Ibid. p. 185.

²²⁶ Ibid. pp. 240–241.

²²⁷ Idem.

²²⁸ Zile, , Remedies, op. cit., pp. 12–13.Google Scholar

²²⁹ The Book, p. 193.Google Scholar

²³⁰ Ibid. pp. 192–193.

²³¹ Idem.

²³² Ibid. p. 241.

²³³ Ibid. p. 193.

²³⁴ Ibid. pp. 185–187; see below for discussion of “contractual”; “fault”; force majeure; and impossibility.

²³⁵ See discussion in The Book, p. 202.Google Scholar

²³⁶ Mihaly, , “The Role of Civil Law Institutions,” op. cit., pp. 323–324.Google Scholar

²³⁷ The Book, pp. 193–194.Google Scholar

²³⁸ Idem.

²³⁹ Zile, , Remedies, p. 38.Google Scholar

²⁴⁰ The Book, p. 193.Google Scholar

²⁴¹ This notion is suggested with regard to the parallel Russian law in Zile, , Remedies, pp. 38–39.Google Scholar

²⁴² The Book, p. 193.Google Scholar

²⁴³ Restatement, op. cit., sec. 339.

²⁴⁴ The Book, pp. 186–189Google Scholar

²⁴⁵ Ibid. p. 241.

²⁴⁶ Ibid. p. 185.

²⁴⁷ Ibid. p. 326.

²⁴⁸ With regard to the emphasis on “Law as a Teacher and Parent” in Russia, see Bennan, , Justice, op. cit., pp. 203–206et seq.Google Scholar

²⁴⁹ Under the expectancy measure, “The law attempts to put the plaintiff in as good a position as he would have occupied had the defendant performed his obligation.” von Mehren, , The Civil Law System, op. cit., p. 507Google Scholar; and see Restatement, op. cit., sec. 329 et seq.

²⁵⁰ The Book, p. 187.Google Scholar

²⁵¹ See generally Fuller, and Perdue, , “The Reliance Interest in Contract Damages”, 1, 46Google ScholarYale Law Journal, I, p. 52.Google Scholar

²⁵² The Book, p. 187.Google Scholar

²⁵³ Ibid. p. 188.

²⁵⁴ Ibid. pp. 188 and 335.

²⁵⁵ Zile, , Remedies, op. cit., p. 54.Google Scholar

²⁵⁶ See The Book, pp. 188 and 335.Google Scholar

²⁵⁷ The Book, p. 290.Google Scholar

²⁵⁸ Ibid. pp. 91, 196 and 340.

²⁵⁹ Ibid. pp. 185–187.

²⁶⁰ For the definition and rules regarding impossibility at common law see Restatement, sec. 454 et seq.

²⁶¹ Such a conclusion does not seem unreasonable under the terms of ibid. sec. 460, particularly illustration No. 12 in the comments thereto.

²⁶² Berman, , “Force Majeure and the Denial of an Export Licence under Soviet Law: A Comment on Jordan Investments, Ltd. v. Saiuznejteksport,” Harvard Law Review, LXXIII, p. 1128.Google Scholar

²⁶³ The Book, p. 238.Google Scholar

²⁶⁴ Ibid. pp. 84–87.

²⁶⁵ BGB, Article 138Google Scholar, translated in von Mehren, , The Civil Law System, p. 881.Google Scholar

²⁶⁶ The Book, pp. 87–88.Google Scholar

²⁶⁷ Idem.

²⁶⁸ Ibid. pp. 83–84.

²⁶⁹ Ibid. p. 83.

²⁷⁰ See Gsovski, and Grzybowski, , Government, Law and Courts, op. cit., pp. 1140–1144.Google Scholar

²⁷¹ The Book, pp. 88–91.Google Scholar

²⁷² Idem.

²⁷³ See discussion in Gsovski, , Soviet Civil Law, I, op. cit., pp. 426–431Google Scholar; and see Berman, , “Commercial Contracts,” op. cit., pp. 211–212.Google Scholar

²⁷⁴ Gsovski, , Soviet Civil Law, I, p. 426.Google Scholar

²⁷⁵ See above.

²⁷⁶ See note 273.