Keywords: liability for fault in contracting, honesty and credit, reliance interest, applicable types
First, the establishment of the theory of liability for fault in contracting.
The theory of liability for fault in contracting was first put forward by the famous German jurist Huning. 186 1 year, Huning published the article "Compensation for Liability for Negligence in Contracting, Invalidity and Invalidation of Contract" in the fourth volume of the annual report of Huning Daily, which theoretically began an in-depth discussion on liability for negligence in contracting. He believes: "People who engage in contract conclusion enter into the category of positive obligations in the contract from the category of negative obligations other than contract transactions, and their primary obligation is to pay necessary attention when signing the contract. The law protects not only the existing contractual relationship, but also the ongoing contractual relationship. Otherwise, the contract transaction will be exposed and unprotected, 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 has no performance effect, and the so-called contract has no 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. The theory of liability for fault in contracting is hailed as a discovery in law, which has a far-reaching impact on legislation and precedent in various countries. When the German Civil Code was enacted, most drafters thought that it could not be stipulated as a general element of responsibility, and it could only be recognized under special circumstances. 1940 "Greek civil code" stipulates the liability for fault in contracting as a general principle in legislation for the first time. Article 197 of the law stipulates: "When negotiating a contract, the parties are obliged to follow the actions required by good faith and trading habits. "Article 198 stipulates:" In the negotiation process of concluding a contract, if damage is caused by the fault of the other party, even if the contract is not established, it shall be liable for damages. "After the Italian Civil Code 1942, the Soviet Civil Code 1964, and the precedents and theories of Switzerland and France also accepted the liability for contracting negligence. & lt As the German jurist Lorenz pointed out: "The liability for fault in contracting is not so much based on the existing provisions of civil law, but rather a system created by precedent theory to promote legal progress. After long-term repeated application, it has been accepted by general legal consciousness and has the effect of customary law. "At present, the liability for fault in concluding a contract is not only applicable to the case that the contract is not established, invalid or revoked, but also has applicable space in some occasions when the contract is effectively established. & gt Professor Wang Liming defines the concept of liability for negligence in contracting as: "It refers to the civil liability that one party should bear in the process of contracting if it violates its obligations based on the principle of good faith, resulting in the loss of the trust interests of the other party.
Article 6 1 of the General Principles of Civil Law of our country stipulates: "After a civil act is confirmed to be invalid or revoked, the property acquired by the party concerned as a result of the act shall be returned to the party who suffered losses. The party at fault shall compensate the other party for the losses suffered. If both parties are at fault, they should bear their respective responsibilities. " This article is very similar to the liability for fault in contracting, but it is not a complete liability for fault in contracting. According to Article 42 of China's Contract Law and relevant civil legislation, the so-called liability for negligence in concluding a contract refers to the liability for damages caused by the violation of obligations arising from the principle of good faith in the process of concluding a contract. The behavior of both contracting parties violating the obligations arising from the principle of good faith is called contracting fault, subjective fault is called contracting fault, and the liability for damages should be called contracting fault liability. Thus, the contract liability system is perfected and the deficiency of the general principles of civil law is made up.
Second, the legal basis of liability for fault in contracting
What is the legal basis of liability for negligence in contracting? There are different views in academic circles, which can be roughly divided into the following categories:
(1) Tort theory. In the ten years after the promulgation of German civil law, the theory of tort is the main legal basis of liability for contracting fault. The theory holds that, except in statutory circumstances, the damage caused by fault in contracting belongs to the adjustment scope of tort law, and the actor should be investigated for responsibility according to the provisions of tort law.
(2) the theory of legal acts. After the theory of tort declined, it became the theory of legal act. This theory holds that the legal basis of liability for fault in contracting lies in the legal acts between the parties. This theory is subdivided into the purpose contract theory and the implied liability contract theory. The purpose contract theory holds that the basis of fault liability in contracting lies in the contract concluded later between the parties; The theory of implied liability contract holds that the basis of fault liability in contracting lies in the implied conclusion of a liability contract by the parties when they engage in contracting activities.
(3) the law says. I think Brock advocated it. This theory holds that the legal basis of liability for contracting negligence is neither tort nor legal act, but the direct provision of law.
(4) the principle of good faith. The theory holds that the legal basis of liability for fault in contracting lies in the principle of good faith. According to the principle of good faith, the person engaged in contract negotiation should pay all necessary attention to the transaction to safeguard the interests of the counterpart. If a party violates its due duty of care, such as cooperation, notification, protection and confidentiality, and causes damage to the other party, it shall be liable for compensation. This theory is a popular view in German theoretical circles at present.
The defects of the above theory, tort theory and legal act theory are obvious. Tort theory violates the basic requirements of tort law. Because the obligation given to the person by tort law is the obligation of inviolability of rights, the fault in contracting does not infringe some rights of the relative person. The theory of legal act takes the contract that has not yet been established or does not exist as the basis of contracting fault, which actually confuses the difference between contracting fault liability and breach of contract liability. There are different views on the theory of legal provisions and the principle of good faith, and some scholars believe that there is no essential difference between them. Because the liability for fault in contracting is a kind of liability directly stipulated by law, and the basis of making such a provision by law lies in honesty and credit.
Three, the constitutive elements of liability for fault in contracting
(1) One of the contracting parties violates the previous contractual obligations.
As a form of liability, liability for fault in concluding a contract must be based on the existence and violation of previous contractual obligations. Pre-contractual obligations refer to the obligations of cooperation, notification, protection and confidentiality undertaken by the parties to the contract according to the principle of good faith before the contract is established. Pre-contractual obligation is different from contractual obligation, and its basis is not a legally established contract, but the principle of good faith. Once the civil subject enters the contracting procedure, it should be presumed that reasonable trust has been formed between the two parties, that is, one party will take care of the other party and be loyal to the other party, and inform the other party of the reasons related to the contract and involving the other party's property and personal safety according to the principle of good faith. The occurrence of pre-contractual obligations is marked by the fact that both parties enter the process of concluding a contract. If there is no contracting relationship between civil subjects, of course there is no contracting fault.
(2) The other party to the contract suffers losses.
Civil liability is generally based on the existence of damage facts, and liability for negligence in contracting is no exception. Only when one of the contracting parties violates the prior contractual obligations and causes damage to the other party can the liability for contracting negligence arise. The loss in the liability for contracting fault mainly refers to the loss of trust interests. If it is not based on trust interests, even if one party pays a lot of expenses and causes losses, it cannot be considered as the loss of trust interests. If there is only one party's fault and there is no fact that the other party has suffered losses, there is no compensation.
(3) The party that violates the prior contractual obligations is at fault.
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.
(d) Causality exists between negligence and loss.
Causality here means that there is an inevitable connection between the fault of one party and the loss of trust interests suffered by the other party. This is that the occurrence of damage results must be caused by the wrong behavior of contracting. If the loss suffered by the other party is not due to the fault of one party, even if it occurs in the process of contracting, even if there is damage to the trust interests, it will not bear the responsibility for contracting fault. The causality of liability for fault in contracting should be applied to the determination of general causality in civil law. In judicial practice, it is necessary to truly grasp whether there is a causal relationship between the negligent act of contracting and the fact of damage. Only in this way can we avoid being investigated for civil liability for damage caused by negligence in contracting.
Four, the main types of contracting fault liability
According to Article 42 of China's Contract Law, there are four kinds of liability for contracting negligence: (1) malicious negotiation under the guise of concluding a contract; (2) Deliberately concealing important facts related to the conclusion of a contract or providing false information; (3) disclosing or improperly using business secrets; (four) there are other acts that violate the principle of good faith.
(1) Concluding a contract under the guise of malicious negotiation.
Negotiate maliciously under the guise of concluding a contract. It refers to the behavior that the parties have no intention to conclude a contract at all, and conclude a contract under the pretext of harming the interests of the other party. This is also stipulated in the General Principles of International Commercial Contracts. Article 2. 15 stipulates: "If one party negotiates or terminates the negotiation in bad faith, it shall be liable for the losses caused to the other party. The so-called malice means that one party starts or continues negotiations without intending to reach an agreement with the other party. " For example, deliberately negotiating with the other party, making the other party lose the opportunity to trade with others, and obtaining illegal benefits under the pretext of negotiating with the other party, all belong to this kind of liability for contracting negligence.
(2) Deliberately concealing important facts related to the conclusion of a contract or providing false information.
In the process of concluding a contract, the parties have the obligation to tell the truth. If one party deliberately conceals its own property status and performance ability, deliberately conceals the defects of the subject matter sold, as well as the performance and use of the products sold, or provides the other party with false information that does not exist, thus causing losses to the other party, it is the liability for negligence in contracting.
(three) disclosure or improper use of business secrets
It is generally believed that this is the liability for negligence in concluding a treaty that violates the duty of loyalty or confidentiality. In the process of concluding a contract, the party who provides its business secrets to the other party for the purpose of concluding a contract shall keep the secrets and shall not use them improperly for its own benefit, otherwise it shall bear the responsibility for contracting negligence. The establishment of this responsibility should have the following elements: ① In the process of concluding a contract, one party knows the business secrets of the other party, and the way of knowing is not to ask; (2) The party who knows the trade secret divulges the trade secret or improperly uses the trade secret; (3) The loss of the other party is caused by the disclosure or improper use of the trade secrets of the other party.
(four) there are other acts that violate the principle of good faith.
In the process of concluding a contract, the parties shall fulfill their obligations of cooperation, notification, protection and confidentiality in accordance with the principle of good faith. If a breach of prior contractual obligations causes losses to the other party, it shall bear the liability for contracting fault.
Five, the relationship between fault liability and liability for breach of contract and tort liability.
(a) The difference between liability for fault in contracting and liability for breach of contract.
A. the premise is different. The liability for fault in contracting is based on the premise that the parties violate the principle of good faith in the process of contracting, and the composition of their obligation group is directly stipulated by law. No matter whether the contract is established or not, as long as there is an act that violates the principle of good faith and meets the requirements of the law, it constitutes the liability for contracting negligence. The liability for breach of contract is based on the existence and validity of the contractual relationship, and the obligation group is generated by the contractual agreement.
B. the principles of determining responsibility are different. The liability for fault in contracting is based on the fault of the parties and the principle of fault liability is implemented. The liability for breach of contract is not suitable for the parties to perform, does not emphasize subjective fault, and implements strict liability.
C. different forms of responsibility. There is only one form of liability for contracting negligence, that is, damages, and the forms of liability for breach of contract are diversified, including compensation for losses, payment of liquidated damages, actual performance, etc.
D. the scope of compensation is different. In the liability for contracting negligence, the obligee requests compensation for the loss of interest, and the liability for breach of contract includes the actual loss and the damage of expected interest caused by breach of contract.
(2) The difference between liability for negligence in contracting and tort liability.
Liability for negligence in concluding a contract, like tort liability, violates legal obligations and conforms to legal elements, but there are still differences between them.
A. different responsibilities. The liability for fault in concluding a contract occurs during the negotiation of the parties, and there is a trust relationship between the parties. Tort liability exists in all social interactions, and there is no need for any relationship between the parties. It is only because of the establishment of tort that the creditor-debtor relationship is formed between the parties.
B. the nature of the obligation breached is different. The liability for fault in concluding a contract violates the pre-contract obligation based on the principle of good faith. Tort liability violates the obligation not to infringe upon the personal rights and property rights of others. In the field of contracting fault liability, the degree of care obligation of the parties is higher than that of creditor's rights liability.
C. different imputation principles. The principle of liability for fault in contracting is a kind of fault principle, including intention and fault, and no liability is assumed without fault. The liability of creditor's rights is not based on fault, and the principles of imputation include fault principle, no-fault principle and fair liability principle.
D. different forms of responsibility. The form of liability for contracting negligence is damages, and tort liability includes stopping infringement, removing obstacles and eliminating dangers besides damages.
E. the scope of compensation is different. The liability for contracting negligence does not produce mental compensation, and the victim in tort liability can request mental compensation.
China's "Contract Law" stipulates the content of contracting fault in Articles 42 and 43. This marks the formal establishment of the liability system for fault in contracting in China. However, these regulations are still abstract and simple, with imperfect contents and poor operability. For example, the scope of damages is still unclear and needs to be enriched and improved in future legislation. The final establishment of liability for negligence in contracting has great influence and function on perfecting China's legal obligation system, perfecting the debt law system and regulating the growing contracting behavior in social and economic life, so it can also be said to be a great progress in the construction of China's national debt law and contract law. .