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从诉讼的视角看,罗马法以给物作为要物合同产生债的根据是为赋予给付人以诉权。它之所以有此举证责任要求,是因为传统要物合同有产生于朋友之间的无偿关系的背景。此深层原因为讨论现代法上要物合同的存废提供了参考。传统要物合同因具有无偿性从而可以借助法律伦理、法律目的方面的正当性,因袭法律传统而予保留,有偿要物合同则因不具备相应的社会基础而应予改造。
From the litigation point of view, the law of Rome to give objects as a contract to generate debt is based on giving the right to pay people. The reason why it has this burden of proof is that the traditional material contract has a background of unpaid relationships that have arisen among friends. This deep reason provides a reference for discussing the existence and abolition of the contract of modern law. Legitimate material contracts can be retained due to their legal ethics and legal purposes due to their non-payment nature. Due to their legal tradition, contracts of surplus property should be remoulded because they do not have the corresponding social foundation.