Private Law Theory

ABSTRACT
Chinese law on contractual fairness has recently been modified to resemble that of the United States and Europe. For a contract to be invalid, there must be both substantive and procedural unfairness. Such an approach is a reaction to the will theories of contract which arose in the nineteenth century. Substantive unfairness contradicts the will theories which were concerned only with what the parties willed and not with what is fair. Requiring procedural unfairness is an attempt to salvage an element of these theories by suggesting that the reason for giving relief is some defect in the will such as a failure in the bargaining process. As we will see, it fails to account for what is really at stake. The result is an incoherence in doctrine which China imported from the West. Chinese law would have been better off on its own.

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Hao Jiang and James Gordley, Fairness in Chinese Contract Law: A Borrowed Mistake, European Review of Private Law, volume 32, issue 2, pp 1-18 (2024).