| In Civilian tradition, civil codes usually adopt different rules on deceit by third party and duress by third party. In the case of deceit by third party, if the counter party is in good faith, the party under deceit can not avoid his declaration of will. But in the case of duress by third party, the party under duress can always avoid his declaration of will, even if the counter party is in good faith. This solution is usually held to have its origin in Roman law. But the actio metus casa in Roman law is an instrument mainly serving for the scope of the restitutio in integrum, and has its peculiar social backgrounds. The traditional pattern of civil codes has some obvious defects in protection of party in good faith and becomes a great threat to the safety and stability of transactions. And it can not logically explain why some damage caused illegally by the third party should be transferred to the party in good faith. Based on these arguments, the uniform model which sets the same rule on deceit by third party and duress by third party should be adopted. This model gives more protection to the party in good faith and emphasizes more on the value of stability and certainty of transactions. Moreover, this model has not the defect of over-commercialization. Through the rule on the definition of the “third” party and the concrete criteria on “good faith”, the different social-economic conditions of the parties involved in the transaction will be valued and balanced quite sufficiently. In the codification of Chinese civil law, we should adopt the uniform model on deceit by third party and duress by third party. |
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