要物合同的存与废——兼论我国《民法典》的立法抉择

尽管要物合同源自罗马法,并为近代部分大陆法系国家民法所继受,成为实证法上合同的一个类别,然而,传统要物合同中的各合同有着不一样的社会与经济功能;从技术结构而言,各合同中的“交付”也各自产生不同效力;将如此不同的各种合同以“交付”作为连结点凑合成一个类别其实并没有令人信服的理由。我国未来的《民法典》应当明确否定要物合同．

Towards the Validity and Invalidity of Contracts of Major Affairs: With a Discussion of Legislative Choices of Our National Civil Law Code

Although contracts of major affairs,which originated from Roman Law,have been inherited by civil laws of some modern countries governed by the law system and become a category of contracts within laws of authentic proof,yet the various contracts which fall in the traditional contracts of major affairs possess different social and economic functions.In terms of technical structure,"the consignment" of the various contracts produce different effects.Actually,it is not convincing at all to put into the same category such widely different contracts which are only connected by "their consignment".Our national Civil Law Code to be codified in the future should definitely negate contracts of major affairs.