I. Characteristics and Elements of Liability for Negligence in Contracting

(A) the characteristics of fault liability in contracting

(B) the constitutive requirements of liability for fault in contracting

Second, the difference between liability for fault in contracting and liability for breach of contract and tort.

(a) the difference between liability for fault in contracting and liability for breach of contract

(b) The difference between liability for fault in contracting and tort liability.

Third, thinking about the liability for fault in contracting in contract law.

(A) the scope of application of liability for fault in contracting

(2) Manifestations of liability for fault in contracting.

Reflections on the Liability for Negligence in Contracting in the Contract Law

Keywords: Liability for Negligence in Contracting in Contract Law

Content summary:

Liability for negligence in contracting, also known as liability for negligence in contracting. Its purpose is to solve the problem that in the process of contract conclusion, the contract to be concluded or concluded may be invalid or cancelled due to the negligence or malice of one contracting party, which may bring losses to the other party who trusts the effectiveness of the contract, and may also cause losses to the other party due to the fault of one party. In short, it is the civil liability that one party should bear when it violates the obligation of the principle of good faith and causes the trust interests of the other party to suffer losses. This is exactly the problem to be solved in contract law, and it is also the important significance of the existence of liability for fault in contracting. The emergence of the liability system for fault in contracting is precisely due to the vacuum of the respective adjustment scope of contract law and tort law, which can not solve the damage caused by the fault and negligence of one party in the contracting stage. In order to make up for this loophole, it is necessary to establish the liability for contracting fault in law. Because the liability for fault in contracting is closely related to the contract liability, it is a pioneering work to bring the liability for fault in contracting into the new contract law. This paper attempts to analyze the characteristics and constitutive requirements of liability for fault in contracting, and accurately grasp the difference between liability for fault in contracting, liability for breach of contract and liability for tort. In order to apply the liability for fault in contracting in contract law in practice, we should grasp the constitutive elements of fault in contracting from the scope of application; Accurately confirm whether there is a pre-contract obligation between the parties within the applicable time; In the applicable space, it is necessary to accurately confirm the legal causes of liability for fault in contracting, as well as the various forms and compensation scope of liability for fault in contracting.

Reflections on the Liability for Negligence in Contracting in the Contract Law

Some scholars refer to the liability for contracting negligence as pre-contractual liability, pre-contractual obligation or directly as contracting negligence. What is the liability for fault in contracting? Scholars have different definitions. Generally speaking, it refers to the civil liability when one party violates its obligations based on the principle of good faith, resulting in the loss of the other party's trust interests. It is generally believed that the theory of liability for fault in contracting was first put forward by German jurist rudolf von jhering. 186 1 year, the article "damages caused by contracting fault, invalid contract and imperfection" published by Yelin Theory Annual Report, which was edited by him, pointed out that "the person who is engaged in concluding a contract enters the category of contract positive obligation from the category of negative obligation other than contract transaction, so his primary obligation is to pay necessary attention when signing a contract. The law protects not only the existing contractual relationship, but also the ongoing contractual relationship, otherwise the contract transaction will be exposed without protection, and one party to the contract will inevitably become the victim of the other party's negligence or inattention. The conclusion of a contract creates an obligation to perform, and if this effect is excluded due to legal obstacles, it will create an obligation to compensate for damages. Therefore, the so-called contract is invalid, which only means that it does not take effect, not that it does not take effect. In short, if the parties fail to establish the contract due to their own fault, they shall compensate the counterpart who believes the contract is valid.

Before the promulgation and implementation of the Contract Law, it should be considered that there is no relatively complete theory of liability for fault in contracting in China. The original three contract laws (namely, economic contract law, foreign-related economic contract law, and technology contract law) did not clearly stipulate the liability for contracting negligence. The Contract Law promulgated by 1999 systematically stipulates the liability for fault in contracting, which fills the legal gap.

I. Characteristics and Elements of Liability for Negligence in Contracting

(a) the characteristics of fault liability in contracting; Liability for fault in concluding a contract is a kind of civil liability in the process of concluding a contract. There are different opinions on when the liability for fault in contracting arises and when it ends. One view is that a valid offer should be the starting point. The main reason is that the offer takes effect when it reaches the offeree. At this time, the offer is binding on the offeror and the offeree respectively, and both parties can enter a specific trust field. In this specific trust field, both parties to the contract can make necessary preparations for concluding the contract on the basis of mutual trust. Another view is that it is very difficult and rigid to establish a time point, because the contracting process is a constantly changing process. Therefore, it is ideal to flexibly establish a variable time point according to different pre-contract obligations.

This paper basically agrees with the first view. The liability for fault in contracting begins with the validity of the offer, because the contracting process is a bilateral act. At the beginning of signing the contract, the two parties have no actual contact in concluding the contract, so it is impossible to generate trust interests and have no prior contractual obligations. Only after the two sides contact, understand and be convinced can a trust relationship be created. If one party violates the previous contractual obligations and causes damage to the other party, the liability for contracting negligence can be generated.

The liability for fault in concluding a contract shall take effect from the effective date of the offer to the effective date of the contract. The key to judge the liability of contracting fault lies in whether the contracting parties have the purpose of contracting, and whether one or both parties have violated the obligations of the previous contract, resulting in the loss of the trust interests of the other party.

2. Liability for fault in contracting is a civil liability based on the principle of good faith in civil law. The basis of liability for contracting fault is the pre-contractual obligation under the principle of good faith, or it is called pre-contractual obligation 1. According to the principle of good faith, in the process of concluding a contract, the parties have collateral obligations such as mutual assistance, notification, explanation, care, confidentiality and protection. It is precisely because the contracting parties violated the pre-contract obligations under the principle of good faith in the process of concluding the contract that the liability for contracting negligence is different from the liability for breach of contract and tort.

3. Liability for fault in contracting protects trust interests. According to the principle of "no loss, no responsibility", the liability for contracting fault must also have losses, but such losses must be the loss of trust interests. Trust interest or negative interest generally refers to the actual loss suffered by the innocent party due to the invalidity or invalidation of the contract. At present, there is no clear definition of loss of reliance interest in law, which is difficult to grasp. In judicature, compensation may be too wide or too narrow, and the same kind of cases may have different judgment results. In my opinion, the loss of trust benefits can include: contracting costs; Performance preparation expenses.

4. Liability for fault in contracting is a compensatory civil liability. Although the current law has clearly stipulated the liability for contracting fault, the accompanying pre-contract obligation law has not clearly stipulated it, and only the basic principle of civil law, that is, the principle of good faith, applies. Therefore, the liability for contracting fault is not the performance of interests, nor the expectation of interests. He only exists in the process of concluding a contract, and the loss of trust interest caused by one party's belief in the validity of its contract is the damage to the trust interest of the other party. Therefore, the remedy of liability for contracting fault is only compensatory, and its purpose is to reach the same state as when the contract negotiation did not occur.

(B) the constitutive requirements of liability for fault in contracting

The principle of fault liability is adopted in contracting fault liability, and its composition must include objective elements and subjective elements. Specifically, the constitutive elements of liability for fault in contracting are as follows:

1. Liability for fault in contracting occurs in the process of contracting. The liability for fault in contracting occurs in the process of contracting, or the contract has been established but is confirmed invalid or revoked because it does not meet the legal conditions for the contract to take effect. If the contract has been effectively established, the conclusion process of the contract has ended. If the fault of one party causes damage to the other party, it can only constitute the liability for breach of contract, but not the liability for negligence in contracting.

2. There must be a fault in contracting. Breach of previous contractual obligations or incidental obligations. In the process of concluding a contract, one of the contracting parties violates the obligations of mutual assistance, notification, explanation, care, confidentiality and protection stipulated by law. It is generally believed that the provisions of Articles 42 and 43 of the Contract Law mean that a party to a contract can only bear the contract fault liability caused by the above-mentioned behavior.

There must be a loss. Breach of pre-contract obligations or collateral obligations has caused loss of trust interests to the other party who signed the contract. No loss, no compensation. Compensation for losses is also based on the category of trust interests, excluding performance interests.

4. The actor must be at fault subjectively. The party who violates the pre-contract obligation or collateral obligation must be intentional or negligent subjectively. Fault is the constituent element of civil liability, and the liability for fault in contracting as a kind of civil liability is no exception. There are two basic forms of fault: intention and negligence. The expression of will means that one contracting party foresees that its actions will lead to the invalidity, non-establishment or cancellation of the contract, causing losses to the other party, but still carries out such civil actions, hoping or letting the illegal consequences happen. Negligence refers to the subjective psychological state that a contracting party should foresee that its actions may lead to the loss of trust interests of the other party due to the invalidity, non-establishment or dissolution of the contract, and fails to fulfill the obligations of cooperation, notification, protection and confidentiality due to negligence, although it foresees it, but believes that it will not happen. Therefore, whether it is intentional or negligent, as long as there is a fault, you must bear the responsibility, and if there is no fault, you will not bear the responsibility. If losses are caused during the conclusion of the contract due to the victim, force majeure and other reasons, the party who violates the obligations of the previous contract shall not be liable for the fault in concluding the contract.

5. There must be a causal relationship between the breach of pre-contract obligations or collateral obligations and the losses suffered by the other party. If the loss of a contracting party is caused by other reasons rather than the intention or fault of the other party, the contracting party that suffered the loss shall not claim the liability for fault in contracting from the other party.

Second, the difference between liability for fault in contracting and liability for breach of contract and tort.

(a) the difference between liability for fault in contracting and liability for breach of contract

Liability for breach of contract is an important system in China's contract law, which refers to the civil liability assumed by a party to a contract for failing to perform its contractual obligations or not conforming to the provisions of the contract. The difference between it and the liability for fault in contracting can be summarized as follows: the preconditions for taking responsibility are different. The liability for breach of contract is a civil liability for violating effective contractual obligations, which is based on the existence of effective contractual relationship. The liability for fault in contracting only applies to the contracting process, and the contract is not established, invalid or revoked. The very important criterion for judging the liability for breach of contract and the liability for negligence in contracting is whether the contract is effectively established. If there is an effective contractual relationship between the two parties, the liability for breach of contract shall apply; If there is no effective contractual relationship between the two parties, the liability for fault in contracting can only be applied.

2. Different forms of responsibility. The parties may agree on the form of liability for breach of contract, the amount of liquidated damages and the deposit. The liability for fault in contracting excludes the agreement or exemption clause between the contracting parties, but directly comes from the direct provisions of the law. If the parties have an agreement in the contract, it is also invalid because of the direct provisions of the law, and the responsibility they bear can only be damages, and the parties cannot choose at will. Generally, it is limited to the losses suffered, and the compensation is the loss of the trust interests of the other party.

3. The principle of imputation is different. Liability for fault in contracting can only make the principle of fault liability 1 applicable. That is, the liability for fault in contracting can only be generated if one party is at fault, or both parties are at fault and bear corresponding responsibilities. If one or both parties to the contract are not at fault, they do not have to bear the responsibility for contracting fault, although there is damage and losses are caused to one or both parties. On the one hand, the principle of fault liability requires both parties to be subjectively at fault as the liability for fault in contracting. That is to say, to assume the liability for fault in contracting not only violates the previous contract and causes the loss of the other party's trust interests, but also determines that the contracting party is subjectively at fault; On the other hand, there must be a causal relationship between this fault and the loss of trust interests, in order to determine the scope of liability for contracting fault. The principle of imputation of liability for breach of contract generally applies the principle of presumption of no fault. As an exception or supplement, the principle of presumption of fault also applies. The principle of no-fault liability requires the defaulting party to bear the liability for breach of contract regardless of subjective fault. Article 107 of China's Contract Law confirms this principle. At the same time, the principle of fault liability is applied to well-known contracts, such as Articles 189,19/kloc-0, 320, 374, 406 and 425 of the Contract Law, thus forming a legislative pattern with strict liability as the leading factor and the principle of fault liability as the exception and supplement.

(2) The principles of fairness, honesty and credibility.

Article 5 of the Contract Law stipulates that the parties shall follow the principle of fairness and determine the rights and obligations of each party. The fairness mentioned here is not only manifested in the fairness when concluding a contract, but also in the fact that an obviously unfair contract can be revoked; It is also manifested in the fair handling of contract disputes, which should not only protect the legitimate interests of the observant party, but also prevent the defaulting party from taking too many responsibilities due to minor faults; It also shows that in rare cases, due to the abnormal changes in objective conditions, the performance of the contract makes the interests of the parties seriously unbalanced and adjusts the interests of the parties fairly. Good faith mainly includes three meanings: first, honesty, consistent appearance, and invalid or revocable contracts concluded by fraud. The second is to keep promises, match words with deeds, not be willful, and not talk empty words. Third, from the time when the parties negotiate the terms of the contract, they are in a special cooperative relationship. The parties concerned shall abide by business ethics and fulfill the obligations of mutual assistance, notification and confidentiality.

In the process of drafting the contract law, some comrades put forward the principle of equivalent compensation. Equivalent compensation is the rule of commodity exchange. As a contract law that regulates market transactions, the principle of fairness has already included the content of equivalent compensation. Fairly determining the rights and obligations of all parties means equal value. I think it is better to replace the principle of equivalent compensation in contract law with the principle of fairness. As the law of commodity exchange, equivalent compensation is not reflected in every commodity exchange. What each commodity exchanges is not the value of the commodity, but the price of the commodity. Only in the long-term commodity exchange and the fluctuation of price around value can we show the law of equivalent compensation. The principle of fairness is not only reflected in the transaction order of the whole society, but also in the individual's specific contract. Any contract should follow the principle of fairness and embody its spirit. Because there are many kinds of contracts, some of which belong to free contracts, the principle of fairness is broader than that of equivalent compensation, which can better take care of the needs of various contracts.

With the development of society, the principles of fairness, honesty and credit are more and more widely used in contract law. Some people think that the principle of good faith means fairness according to the requirement of observing business ethics. In addition to the principle of good faith, the Contract Law stipulates that good faith is also applicable to the stage of concluding a contract, that is, the pre-contract stage, and also to the specific situation after the termination of the contract, that is, the post-contract stage. Article 42 of the Contract Law stipulates that in the process of concluding a contract, if one of the following circumstances causes losses to the other party, the parties shall be liable for damages: (1) negotiate in bad faith under the guise of concluding a contract; (2) Deliberately concealing important facts related to the conclusion of a contract or providing false information; (three) there are other acts that violate the principle of good faith. Article 43 stipulates that the business secrets known to the parties in the process of concluding a contract shall not be disclosed or used improperly, regardless of whether the contract is established or not. If the disclosure or improper use of business secrets causes losses to the other party, it shall be liable for damages. The two clauses stipulate the liability for fault in contracting, and the basic basis for assuming the liability for fault in contracting is to violate the principle of good faith. Article 92 of the Contract Law stipulates that after the termination of contractual rights and obligations, the parties shall follow the principle of good faith and fulfill their obligations of notification, assistance and confidentiality in accordance with trading habits. This article is about post-contractual obligations, and the basic basis of post-contractual obligations is also the principle of good faith.

(three) abide by the law and discipline, and shall not harm the public interest.

Article 7 of the Contract Law stipulates that when concluding and performing a contract, the parties shall abide by laws and administrative regulations and respect social morality, and shall not disturb the social and economic order or harm the public interests. This provision has two meanings, one is to abide by laws (including administrative regulations), and the other is not to harm the interests of the public.

Abiding by the law mainly refers to obeying the mandatory provisions of the law. The mandatory provisions of the law are basically related to the public interest and are generally included in the administrative legal relationship or criminal legal relationship. The mandatory provisions of the law refer to the provisions that the state guarantees the implementation by compulsory means such as tax payment and industrial and commercial registration, and shall not disturb the order of competition. The arbitrary provisions of the law are the provisions that the parties can choose to apply or exclude, which basically involve the personal interests or group interests of the parties. Of course, the arbitrary provisions of the law cannot be applied forever. According to the provisions of the contract law, when there is a dispute between the parties on a certain issue of the contract, or after the contract dispute occurs, the parties fail to reach an agreement or a supplementary agreement, and there is no trading habit to solve it, the last weapon is the arbitrary provisions of the law. The provisions of the Contract Law are mostly arbitrary, except for the provisions on the validity of contracts and the provisions on mandatory tasks or state ordering tasks in Article 38 of the Contract Law.

It must not harm public interests, which is equivalent to foreign regulations that must not violate public policies and must not harm public order and good customs. With the continuous improvement of the civil law, many things that used to harm the public interest have been stipulated by law and become law-abiding contents. However, compared with social existence, the law is secondary after all, and it is difficult for the law to make very detailed provisions on various things in society. There is no law, what should I do if it involves something that harms the public interest? The last legal weapon is not to harm the public interest. According to this principle, the French open is restored, sparse but not leaking.

(4) The principle that contracts are legally binding.

Article 8 of the Contract Law stipulates that a legally established contract is legally binding on the parties. The parties shall perform their obligations as agreed, and shall not alter or terminate the contract without authorization. This clause is mainly applicable to the performance of the contract. Why should it be written into the first chapter of the Contract Law and attached great importance to it?

In the transitional period, China lacks market economy experience, low management level, weak legal awareness, some confusion in economic order and low contract performance rate. In view of this situation, it is of great practical significance to emphasize that contracts are legally binding. A contract is legally binding, first of all, it is said to the parties. After concluding a contract, the parties shall perform their obligations, and if they violate the agreement, they shall bear the liability for breach of contract. The contract is legally binding and submitted to the administrative organ. The administrative organ shall not interfere with the contract concluded by the parties according to law, and shall not illegally change or even tear up the contract concluded by the parties. The contract is legally binding and submitted to the judicial organ. The judicial organs should protect the contracts concluded by the parties according to law as they abide by the law. If the principle of legally binding contract is universally implemented in real life, then the legal means of contract will greatly promote the modernization of China.

The new Contract Law not only establishes the principle that contracts are legally binding in Article 8, but also maintains this principle in the conclusion, modification or dissolution of contracts. In the aspect of contract conclusion, the system of offer and acceptance is stipulated in detail, up to 22 articles, which makes the conclusion of the contract more clear and operable than the previous provisions. In terms of contract modification, Article 77 of the Contract Law stipulates that the parties may modify the contract through consultation; Article 78 stipulates that if the parties are not clear about the contents of the contract change, it is presumed that it has not been changed. In the aspect of contract termination, the contract law stipulates the termination of agreement; Article 93 stipulates that the parties may terminate the contract through consultation. The parties may stipulate the conditions for one party to terminate the contract. When the conditions for contract termination are met, the creditor may terminate the contract. Article 94 of the Contract Law also clearly stipulates the specific circumstances for one party to terminate the contract.

Finally, talk about the expression of the basic principles of contract law. Articles 3 to 8 of the Contract Law stipulate the basic principles of the Contract Law. Some people think that the basic principles of contract law are not comprehensive enough. This opinion is correct. It is very difficult and in fact impossible to fully express every basic principle of contract law in just one or two sentences. Then, how to write the Basic Principles of Contract Law? First, it is similar to the general principles of civil law. For example, Article 4 of the General Principles of Civil Law stipulates that civil activities should follow the principles of voluntariness, fairness, equal compensation, honesty and credibility. The second is to make targeted provisions that are the most difficult to reflect the characteristics of this basic principle. The expression of the basic principles of contract law adopts the latter method.