On the principle of liability for breach of contract 1
Paper Keywords: principle of liability for breach of contract, strict liability
Liability for breach of contract is one of the most important systems in contract law, and the principle of imputation of liability for breach of contract is the core content of this system.
The current principle of liability for breach of contract.
Whether to adopt strict liability or fault liability is controversial in legal theory and judicial practice. Starting with an overview of the liability for breach of contract and its imputation principle, this paper discusses the imputation principle of the liability for breach of contract in combination with the relevant provisions of China's contract law.
Firstly, the liability for breach of contract and its imputation principle are summarized.
Liability for breach of contract refers to the civil legal liability that the parties to a contract should bear for violating their contractual obligations.
The principle of imputation of liability for breach of contract refers to the basis on which the parties to a contract should bear responsibility when they fail to perform their contractual obligations or when their performance does not conform to the contract.
This basis actually reflects the legal value judgment standard.
From the perspective of civil legislation in various countries, the imputation of contract liability mainly adopts two imputation principles: fault liability and strict liability.
Determining different imputation principles plays a vital role in the liability for breach of contract.
Mainly manifested in:
The principle of 1 directly determines the constitutive requirements of the liability for breach of contract.
Adopting the imputation principle of fault liability means that fault is a general element of liability for breach of contract.
The principle of strict liability is adopted, which shows that its liability composition is not based on fault, and whether the breaching party is at fault does not affect its liability for breach of contract.
The principle of imputation determines who bears the burden of proof.
Under the principle of imputation of fault liability, the non-defaulting party only bears the burden of proof for the fact that the defaulting party fails to perform its obligations or the performance of historical affairs does not conform to the agreement.
At the same time, the method of fault presumption is adopted, and the breaching party is required to bear the burden of proof to prove that he is subjectively innocent.
Under the principle of strict liability, the breaching party is generally not required to bear the above burden of proof, that is, the subjective fault of the breaching party is generally not considered.
The principle of imputation determines the reasons for exemption.
Force majeure is the main exemption for applying the principle of fault liability.
However, when the debtor suffers an accident and has no personal fault, he can also be exempted from liability.
In applying the principle of strict liability.
The statutory exemption is mainly force majeure.
The principle of imputation also has a certain influence on the size of liability for breach of contract.
Due to the principle of fault liability, fault is a general element of liability for breach of contract.
Therefore, the liability for loss after breach of contract must also refer to the size of the fault of both parties.
When the principle of strict liability is adopted, the fault degree of both parties is generally not considered.
Therefore, from the above point of view, it is very necessary to clarify the imputation principle of liability for breach of contract.
Second, the comparison of the principles of liability for breach of contract between the two legal systems.
1 provisions of civil law countries on the principle of fault imputation.
Roman law, based on Aquilia law, has formed its own systematic and mature principle of civil liability based on fault through the supplement, interpretation and development of later precedents and academic explanations. This principle has been further established and perfected in Justinian's Complete Collection of State Law.
With the development of society.
Only the principle of fault liability is not enough to maintain a good economic and social order, so there is the principle of no-fault liability.
This is of course an exception in Roman law.
Countries in the civil law system inherit the tradition of Roman law and regard fault liability as the general principle of liability for breach of contract.
Article 1 147 of the French Civil Code stipulates that the debtor cannot prove that his non-performance is due to external reasons not attributable to himself, and even if he is not malicious, he will be sentenced to pay damages for his non-performance or delayed performance when necessary.
? When this article stipulates the conditions of liability for breach of contract, it does not mention the parties? Fault? .
In this regard, it can be understood as the party stipulated in this article? Fail to fulfill your obligations? , of course, has included the fault of the parties.
Because the debtor can't expect every contract to be well performed.
In some cases, you can't even expect the contract to be performed, but you have the right to expect the debtor to do his best to make it perform.
If the contract cannot be performed or can not be performed normally due to the fault of the debtor, the debtor shall be liable for the losses caused by his fault.
The modern contract theory in France limits the contractual liability, that is, the investigation of the debtor's liability.
According to the severity of his fault.
Therefore, faults are divided into fraudulent faults, unforgivable faults, major faults and general faults.
Article 276 of the German Civil Code stipulates: (1) Unless otherwise stipulated, the debtor shall be liable for his intentional or negligent behavior.
It is an act of negligence not to give necessary attention in the transaction.
(2) The debtor shall be responsible for the intentional act and shall not be exempted in advance.
? German scholars believe that the condition for the debtor to assume responsibility is that the breach of performance obligations must be caused by the debtor's behavior.
And its behavior must be negligence.
The German Law on Modernization of Debt Law, which came into effect on June 65438+1 October1,2002, did not significantly modify Article 276, but still adhered to the principle of fault liability.
While adhering to the principle of fault liability, civil law countries stipulate the exception application of the principle of strict liability.
For example.
The principle of strict liability applies to the liability for delay in monetary debt, the liability for non-delivery, the liability for guarantee of defects, the liability for delay promised by creditors and the liability after delay in performance. The debtor shall bear the liability for breach of contract regardless of whether he is subjectively at fault or not.
2. The provisions of common law countries on the principle of fault liability.
Different from civil law countries.
Common law countries regard strict liability as the general principle of liability for breach of contract.
In English law, many contractual obligations are strict.
Determining whether the parties are absolutely obliged to do the agreed things or just have the obligation to ensure the performance of the contract as much as possible, that is, whether the parties to the contract are liable for breach of contract not caused by their own fault, is considered as a contract interpretation problem in British contract law, that is, to explain the scope of the parties' contractual obligations.
Generally speaking, the answer to this question is that contractual debt is absolute, and no fault is not a defense.
The claim for damages for breach of contract does not consider fault.
Generally speaking, it doesn't matter if the duty of care is not fulfilled, and the defendant can't use the duty of care as a defense.
American law emphasizes that damages for breach of contract are not punitive, contract law is a strict liability law in overall design, and the corresponding relief system does not ask for fault.
Paragraph 2 of Article 260th of Restatement of Contract Law (Second Edition) in the United States stipulates:? If the performance obligations of the contract have expired, any non-performance constitutes a breach of contract.
? Of course, common law countries adhere to the principle of strict liability, but they also stipulate the exception application of the principle of fault liability.
Jurisprudential analysis of different provisions on the principle of fault imputation in two legal systems.
The two legal system countries regard the principle of fault liability or strict liability as the general imputation principle of breach of contract liability.
But it does not deny the application of other imputation principles.
That is to say, in the system of liability for breach of contract, both countries of the two legal systems have adopted the dual liability system.
This is caused by the diversity of trading relations and the complexity of the causes and consequences of breach of contract.
A single imputation system has its inevitable defects, that is, it is difficult for judges to use the law flexibly to deal with the imputation problem according to specific needs when trying contract disputes, which is not conducive to the equal protection of the legitimate rights and interests of both parties to the contract.
The adoption of single liability system can make up for the deficiency of single liability system, thus realizing the basic purpose of liability for breach of contract.
As scholars have pointed out:? In the final analysis, contract law is to regulate citizens' lives. As a superstructure of a country, it can certainly be set by setting different elements.
Through the legal causality, to achieve a certain legal effect; However, similar social, economic and cultural living conditions not only provide similar adjustment basis for different legal rules and principles, but also put forward the same adjustment requirements, which is why there are many different results.
Third, the principle of liability in China contract law.
What is the principle of liability for breach of contract in China?
scholar
There is an argument between them, and there are three main viewpoints.
The first view (also the mainstream view) advocates the principle of strict liability.
Did not appear in Article 107 of the Contract Law? Unless the client can prove that he is not at fault? Consider using the term "strict liability".
The second viewpoint advocates the principle of fault liability.
All the rules, systems and clauses of China's contract law, and even the full text of the contract law, run through the principle of fault liability from beginning to end.
Therefore, it can only and must come to such a conclusion? Is China's contract law system based on the principle of fault liability? The only conclusion.
The third viewpoint advocates the principle of strict liability, supplemented by the principle of fault liability.
This is conducive to urging the parties to the contract to earnestly fulfill their contractual obligations, protecting the legitimate rights and interests of the injured party, and is also in line with general international practice.
The author thinks.
The first view is more reasonable and desirable.
1 in the current contract law, both the foreign-related contract law and the technical contract law have established no-fault liability.
Article 18 of the former stipulates that if one party fails to perform the contract or fails to meet the agreed conditions, that is, it violates the contract, and the other party has the right to claim damages or take other reasonable remedial measures.
If the losses suffered by the other party cannot be fully compensated after taking other remedial measures, the other party still has the right to claim compensation for the losses.
The latter article 17 also has basically the same provisions.
The definition of liability for breach of contract as no-fault liability seems to have a precedent in China's contract law, and it is not the first in the new contract law.
The United Nations Convention on Contracts for the International Sale of Goods and the General Principles of International Commercial Contracts, which are of great value to the formulation of contract law, both stipulate the principle of strict liability, and the newly formulated Principles of European Contract Law also affirms this principle. It should be regarded as the * * * knowledge of authoritative scholars in the two legal systems after full consideration and weighing, which embodies the consistent trend of the development of contract law? .
In the rules of international business communication, the principle of no-fault liability is mostly adopted.
In the lawsuit, the plaintiff only needs to prove to the court the fact that the defendant fails to perform the contractual obligations, and does not need to prove that the defendant is at fault for not performing, nor does the defendant need to prove that he is not at fault.
The logic here is that there is breach of contract and responsibility, and the composition of liability for breach of contract is only non-performance, and whether the defendant is at fault for non-performance has nothing to do with responsibility.
The only possibility of exemption is to prove the existence of exemption.
Non-performance and exemption are objective facts, and it is relatively easy to prove and judge their existence, while fault belongs to subjective psychological state, and it is relatively difficult to prove and judge their existence.
Therefore.
Realizing the principle of strict liability is beneficial to the judgment, the litigation economy, the seriousness of the contract and the enhancement of the parties' sense of responsibility and law.
Liability for breach of contract is based on the existence of legal and effective contractual relationship. The contract was freely negotiated and signed by both parties, which of course fully conforms to the wishes and interests of both parties. The liability for breach of contract is transformed from contractual obligations, which is essentially agreed by both parties.
It is not compulsory by law, which is different from tort liability.
Therefore, the liability for breach of contract should be stricter than that for tort.
Tort liability occurs between parties who have no close contact in advance, and the widespread conflict of rights makes it difficult to completely avoid the development of damage. Therefore, the law requires that there should be fault elements in addition to damage facts, and fault is equivalent to imputability, which makes tort liability reasonable and convincing.
The liability for breach of contract is essentially due to the agreement of the parties themselves, which is enough to make the liability for breach of contract fully reasonable and convincing, without requiring other reasons to make the liability for breach of contract reasonable and convincing.
Some scholars believe that strict liability is unfair to debtors in case of accidents.
The author believes that due to objective reasons, the breaching party is of course innocent subjectively, but the injured party is even more innocent.
Creditors often change their situation based on their trust in the debtor's commitment. If they insist that the debtor is not at fault and exempt him from liability for breach of contract, it is tantamount to letting the creditor bear the risk himself.
This is obviously more unreasonable.
To sum up, the author believes that.
The principle of imputation has different meanings from the reasons of imputation and freedom. The principle of imputation is the legislative guiding principle that runs through the whole system of liability for breach of contract and plays a leading role in the norms of liability.
There cannot be two contradictory imputation principles in the same legal field at the same time.
Strict liability principle is the only imputation principle in the field of contract law in China.
Although the corresponding clauses in contract law stipulate the causes of fault liability and exemption clauses, these clauses are only exceptions to the general provisions and cannot change the uniqueness and leading position of strict liability principle in the field of contract law.
Remediable damage theory in tort law II