Selected Papers of the Jurist (法学家) Volume 7
Edited by Jichun Shi
Chapter 10: The meaning of silence in civil and commercial interactions: multi-level balance of private autonomy
Because of the lack of any value of declaration, silence, in general, does not in itself have any legal meaning. Silence is allowed by private autonomy. However, in exceptional cases, silence can also have some legal meaning, which is displayed in a certain type of hierarchy and embodies the multi-level balance of private autonomy. No matter what the real intention of the party is, silence can be regarded as the fictional expression of declaration of will in some legal or agreed situations. This is the strongest balance of private autonomy. When one party has a certain obligation of declaration but keeps silent, which causes a loss by the other party, that party needs to bear the liability of compensation for the damages of negative interest. This is the middle balance of private autonomy. If the other party is in goodwill and the reliance of the other party is reasonable when one party’s silence leads to the reliance of the other party, the party who keeps silent needs to bear the reliance-based liability of fulfillment to protect the positive interest. This is the weakest balance of private autonomy. This multi-level structure constitutes a fundamental paradigm for the balance of private autonomy.
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