Incidental Obligations In The Performance Of Contracts

This shows that the collateral obligation is based on the contractual relationship between the parties and is based on the principle of good faith. Its purpose is to ensure the realization of the purpose of the contract and to safeguard the interests of the parties to the contract. Its content is not determined from the beginning of the contractual relationship, but is gradually established according to the nature, purpose and trading habits of the contract, along with the progress of the contractual relationship. [1].

The origin of the theory of collateral obligation stems from the publication of the German scholar, 1861, that the "contract fault, the indemnity of the contract and the damage when it is not established" is published. This paper discusses the necessity of the protection of the trust relationship at the conclusion of the contract, and puts forward the theory of contracting fault liability. With the development of practice and the deepening of the understanding, the Incidental Obligations and the post contractual obligations in the performance of the contract appear in the doctrine of precedent.

As a result, there is no statutory or contractual basis for the contract parties to undertake the duty of notification, explanation, care and confidentiality in order to ensure the realization of the purpose of the contract and protect the interests of the other party.

Unlike the contractual obligations under the principle of freedom of contract, these three kinds of obligations are guided by the principle of good faith, aiming at regulating the interests between the parties and between the parties and the society so as to achieve the balance of the interests of the three parties.

Therefore, it can be said that the obligations attached to the contract and the obligations after the contract are all based on the principle of the first contract obligation, that is, the principle of good faith, which is the same as the three. Therefore, the Taiwan scholar Wang Zejian defined the collateral obligation as "the relationship between debts in the course of its development, in order to enable the creditor's rights to be satisfactorily realized, or to protect other legal interests of creditors. Based on the principle of good faith, the debtor should perform other duties in addition to the obligation to pay, and it mainly has the obligation of cooperation, the duty of notification, the duty of care, the obligation of protection and the duty of loyalty", which means that the obligation of first contract, the obligation after the contract, and the obligation attached to the contract should be collectively referred to as the collateral obligation.

However, the three party does have different functions and different responsibilities, so the three party obligation can not be categorized as collateral obligation at the same time.

Therefore, collateral obligation should be divided into broad sense and narrow sense.

The generalized collateral obligation can occur at all stages of the development of the contractual relationship. The obligations that the parties should bear under the principle of good faith include the obligation of first contract and post contract.

However, sixtieth of the fourth chapters of the contract law of China stipulate that the second parties shall abide by the principle of good faith and perform obligations such as notification, assistance and confidentiality according to the nature, purpose and paction habits of the contract. Therefore, according to the whole system of the contract law, the incidental obligation should only take place in the performance of the contract.

Because collateral obligation is relative to the obligation of payment, it is dependent on the obligation of payment, so as to ensure that the performance of the contractual obligation is fulfilled on the basis of the principle of good faith. Its content is constantly changing along with the situation of the completion of the contractual obligation.

The first contract obligation is the obligation of the contracting party from the time of the negotiation of the contract to the time when the contract comes into force. Because the contract has not yet been established, the obligation of payment has not yet been generated, so it does not exist on the basis of the obligation to pay. It is independent. It is also a relatively determined [2]. contract obligation.

Therefore, the concept of collateral obligation in strict sense should determine the scope, function, principle and content of the existence of collateral obligation.

Therefore, the concept of collateral obligation in narrow sense should be defined as "in the process of contract execution, in order to assist the realization of the creditor's benefit or to protect the interests of creditors or their property, debtors follow the principle of good faith and perform obligations other than obligations such as notification, assistance, confidentiality, protection, etc." which are performed according to the nature, purpose and trading habits of the contract. [3]. the collateral obligation in our contract law adopts a narrow concept.

In addition to the obligation to pay, there are still prior contractual obligations, collateral obligations in the performance of contracts, post contractual obligations and untrue obligations in relation to obligations.

The true meaning of collateral obligation needs to be compared with its similar concepts.

The so-called "principal payment obligation" refers to the inherent obligation and the basic obligation to determine the type of debt relationship.

For example, in a sales contract, the seller should deliver his property and pfer his obligations of ownership, and the buyer's obligation to pay the price is the principal duty.

From the obligation of payment, it does not have the independent significance, only has the function of subsidize the principal to pay obligations and obligations. Its purpose is not to determine the type of contract, but to ensure that the interests of creditors can get the greatest satisfaction.

Collateral obligation is formed with the development of contractual relationship.

It can occur in any contractual relationship and is not subject to specific contract types.

(2) the principal payment obligation constitutes the treatment payment of a bilateral contract. One party must refuse its own payment before the other party has paid for the payment. The principle of collateral obligation does not belong to the payment, but can not occur at the same time.

(3) if a creditor fails to fulfil his obligation to pay, the creditor must terminate the contract.

On the contrary, the creditor may not terminate the contract in principle if he fails to perform the attached obligation, but he may claim compensation for damages on the basis of incomplete performance.

Of course, there are still some arguments about whether the obligations on contracts are actually obligations or obligations.

The obligation to sue is independent of the obligation to pay.

Some call it an independent collateral obligation.

It is not allowed to be independent of the obligation to sue, and some claim it is an independent collateral obligation.

If a car is sold to B and a, the delivery of the vehicle and pfer procedures are mainly based on the obligation to pay, and the necessary documents (such as driving permits, insurance books, etc.) are submitted for the obligation to pay, and the special risk of the vehicle is attached obligation.

But sometimes it is not easy to judge whether an obligation is from the duty of payment or the obligation attached. For example, the seller's explanation of the use of the goods is from the obligation of payment or the obligation to accompany it.

It is generally considered that the obligation of the preceding obligor is a collateral obligation, and the latter is [4]. from the obligation of payment.

Although the contract obligation, the post contract obligation and the collateral obligation in the performance of the contract are all derived from the principle of good faith, the parties should always take care of and protect the commonalities of the personal and property interests of the parties in the three stages of contract concluding, fulfilling and eliminating. However, the difference between the three is still very obvious.

It mainly displays in two aspects: first, the function of obligation is different.

The function of pre contract obligation and post contract obligation mainly lies in protecting the interests of the relative person and property.

In addition to undertaking this function, the collateral obligation in the performance of contract also has the function of assisting the realization of the creditor's benefit.

Second, the types of liabilities after breach of obligations are different.

Breach of pre contract obligation and liability for contracting fault has become an independent liability different from tort liability and liability for breach of contract.

Breach of the contract obligation is the same as the consequence of breach of contract obligation. The parties are responsible for the debt default according to the principles of the contract law. The provisions of the 107th article of the contract law that violate the contract obligation and bear the liability for breach of contract are also applicable to violations of the obligations in the execution of the contract. Therefore, the breach of the liability for the breach of the collateral obligation should be the responsibility for breach of contract. [5].

The unreal obligation stipulated in the contract law for the victims is mainly the obligation to lighten the damage, or the loss reduction obligation for short.

The damage referred to in a derogation obligation refers to the injury of the victim himself. The violation of this obligation shall not oblige the obligor to indemnity others, but to make it self conceited, which is quite different from the consequences of the violation of the general statutory obligation.

For example, in the 119th article of the contract law, the first paragraph stipulates that after the breach of a party's contract, the other party shall take appropriate measures to prevent the expansion of the losses, and if no appropriate measures are taken to expand the losses, no claim for compensation for the expanded losses shall be made.

The difference between the two is mainly that the collateral obligation is the obligation to the other party. The breach of the obligation should be held accountable to the other party, while the unreal obligation is not the obligation to the other party, nor does the breach of the obligation result in the responsibility to the other party, but is self suffering.

Collateral obligation is different obligation in the process of continuous development of debt, and it must not be divorced from the principle of good faith. Its function is only the realization of the obligation of supplementary payment.

The provisions on the obligation of collateral obligation in China's contract law generally include the following aspects:

Regarding the obligation of disclosure, 158th, 191st, 228Th, 230th, 232nd, 256th, 257th, 278th, 298th, 309th, 338th, 309th, 309th, stripe, bar, bar, bar, bar and so on are respectively stipulated in the contract law.

In addition to the general rule, the contract law stipulates the obligation of the standard clause providers to explain the exemption or limitation clauses, and makes specific provisions in 199th articles, 231st articles, 304th articles, 307th articles, 324th articles, 356th articles and 383rd articles.

In the contractual relationship, most of the obligations performed by the debtor are positive obligations to meet the interests of creditors.

If the creditor wants to enjoy the contractual interest in real terms, he must accept the debtor's performance with his own behavior and cooperate with the debtor in fulfilling his performance.

If not