• <abbr id="ck0wi"><source id="ck0wi"></source></abbr>
    <li id="ck0wi"></li>
  • <li id="ck0wi"><dl id="ck0wi"></dl></li><button id="ck0wi"><input id="ck0wi"></input></button>
  • <abbr id="ck0wi"></abbr>
  • <li id="ck0wi"><dl id="ck0wi"></dl></li>
  • Home >

    Liability For Fault In Contracting Law

    2008/12/18 16:31:00 41925

    Some scholars call fault liability, which is called pre contract liability, contract obligation or direct contracting fault.

    What is the fault liability of contracting? The definition of induction is not uniform. Generally speaking, it refers to the civil liability of a party who violates his obligations under the principle of good faith and loses the trust interest of the other party in the process of concluding a contract.

    It is generally believed that the theory of contracting fault liability is first proposed by Rudolf von Jhering, a German jurist.

    In 1861, in the text of the contract damages, contract invalidation and incomplete compensation, published in the editor's report of the Ye Lin theory annual report, it is pointed out that "people who engage in the contract concluded from the negative obligation category outside the contractual paction into the positive obligation category of the contract.

    Its primary obligation is to pay the necessary attention when contracting.

    What the law protects is not only an existing contractual relationship, but also the contractual relationship that is taking place. Otherwise, the contract paction will be exposed to outside protection, and one party of the contract will inevitably become a victim of negligence or negligence.

    The conclusion of a contract has created a performance obligation. If the effect is excluded due to legal obstacles, it will produce a liability for damages.

    Therefore, the so-called nullity of contract does not mean that there is no effect of performance.

    In short, a party who fails to establish a contract because of his negligence shall compensate the relative person who believes in the effective establishment of his contract by damages arising from this trust.

    Before the promulgation and implementation of the contract law, we should consider that our country does not have a relatively complete theory of contracting fault liability.

    The original three part contract law, namely the economic contract law, the foreign economic contract law and the technical contract law, has not been clearly stipulated.

    The contract law promulgated in 1999 provides a systematic stipulation on the liability for culpa in contract and fills the gap in the law.

      

    Characteristics and constitutive requirements of fault liability in contracting

      

    (1) characteristics of fault liability in contracting

    1, contracting fault liability is a civil liability arising from the conclusion of contract process.

    There are different views on when and when the culpa in contract arises.

    One view is that the entry into force of the offer should take effect.

    The main reason is that the offer is effective when it arrives at the offeree. At this point, the offer is binding on the offeror and the offeree, so that both parties can enter a specific trust area.

    In such a particular field of trust, the parties to a contract can only make necessary preparations based on the trust of the other party.

    Another view is that since the process of contracting is a changing process, it is very difficult and rigid to establish a time point.

    Therefore, it is desirable to set up a flexible time point flexibly according to different contract obligations.

    This article basically agrees with the first view.

    The contracting fault liability starts with the entry into force of the offer because it is a bilateral act in the process of contracting. At the beginning of the contract, the parties do not have the actual connection with the treaty, and they can not produce reliance interest or contract obligation.

    It must be the contact, understanding and conviction between the two parties to produce a trust relationship. If a party violates the first contract obligation to damage the relative party, then the fault liability for contracting will be created.

    The culpa in contract liability arises from the entry into force of the offer and terminates in the contract. The key to judging whether or not to apply the culpa in contract is to see whether the contracting parties have the purpose of concluding the contract and whether one or both parties breach the obligation of pre contract so as to cause the loss of the trust interest 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 for contracting fault liability is the formation of the first contractual obligation under the principle of good faith, or the first contract obligation 1.. According to the principle of good faith, the parties have the obligation of mutual assistance, notification, explanation, care, confidentiality and protection in the process of concluding the contract.

    It is precisely because the contracting party violates the first contract obligation under the principle of good faith in the process of contracting that it leads to a fault liability which is different from the liability for breach of contract and tort liability.

      

    3, the protection of fault liability is a kind of reliance interest.

    According to the principle of "no loss and no liability", liability for contracting fault also needs to be lost, but this loss must be the loss of reliance interest.

    Reliance interest, or negative interest, generally refers to the actual loss suffered by a party without fault due to the invalidity of the contract.

    It is difficult to grasp the definition of loss of trust interest, which is not clearly stipulated in the law at present. In the case of justice, there may be too wide or too narrow compensation, and there may be different rulings in the same case.

    I believe that the scope of reliance interest loss can include: contracting costs; performance preparation costs.

      

    4, contracting fault liability is a compensatory civil liability.

    Although the fault liability of contracting has been clearly defined in the current law, the law of the first contract obligation is not clearly defined, but only applies to the basic principles of civil law, that is, the principle of good faith.

    Therefore, liability for fault in contracting is not performing interests or expecting interests.

    He only exists in the process of concluding a contract, and the loss of reliance interest arising from the effective establishment of his contract is the damage of the trust interest of the other party.

    Therefore, the remedy for fault liability in contracting is only compensatory, and its purpose is to achieve the same state as the contract negotiation did not happen.

      

    (two) constitutive requirements of contracting negligence liability

    The fault liability principle of contracting fault should consist of two aspects: objective elements and subjective elements.

    Specifically, the constitutive requirements of contracting fault liability include the following five elements:

    1, the contracting fault liability occurs in the process of contracting. 2., the fault liability of contracting occurs in the process of contracting, or when the contract has been established, but because it does not conform to the effective conditions of the statutory contract, it is confirmed that it is invalid or cancelled.

    If the contract has been effectively established, the conclusion of the contract has ended, and the damage caused by one party's negligence can only constitute the breach of contract liability, and the contracting fault liability can not be applied.

    2, there must be the existence of negligence in contracting.

    There are breaches of pre contractual obligations or incidental obligations.

    In the process of contracting, a contracting party violates the obligation of mutual assistance, notification, explanation, care, confidentiality and protection.

    It is generally believed that the provisions of the forty-second and 43 articles of the contract law are that only one party of the contract has such a behavior that it may assume the liability for contracting negligence arising from the act.

    3, there must be loss.

    Breach of the obligation of first contract or incidental obligation causes loss of reliance interest to the other party.

    If there is no loss, there will be no compensation.

    The loss of compensation is also based on the scope of reliance interest, excluding performance interests.

    4, the actor must be subjective.

    A party who violates the pre contract obligation or the attached obligation must be intentionally or negligently subjective.

    Fault is a constituent element of civil liability, and liability for fault in contracting is not only an exception of civil liability.

    Fault is specifically manifested in two basic forms: intent and negligence.

    Intentional means that the contracting party foresees that his act will result in a contract void, unfounded or cancelled, which can cause losses to the relative person, and still carry out such civil acts, hoping or permissive illegal consequences.

    Negligence means that the contracting party should foresee that his act may result in the invalidity of the contract, the failure to establish or cancel it, and the loss of the trust interest of the counterpart. The negligence does not fulfill the obligation of cooperation, notification, protection, confidentiality and so on, though it has foreseen but has believed that it will not happen.

    Therefore, no matter intentionally or negligently, as long as there is fault, we must take responsibility, without fault, we will not be held responsible.

    If the loss arising from the contracting process is caused by the victim or force majeure, the party who breaches the first contract obligation shall not bear the liability for fault in concluding a contract.

    5, there must be a causal relationship between the breach of the pre contractual obligation or the accompanying obligation and the loss suffered by the other party.

    If the loss of the party to the contract is not caused by the other party's fault or negligence, it is caused by other reasons. The party contracting the party whose loss is also not allowed to claim the fault liability for contracting.

      

    Two. The difference between contracting fault liability and liability for breach of contract and tort liability.

      

    (1) 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. It refers to the civil liability of a party in a contract that fails to perform the obligations of the contract or fulfil the obligations under the contract.

    The differences between them and the culpa in contract are summarized in the following aspects:

    1, the premise of responsibility is different.

    The liability for breach of contract is a civil liability for breach of the obligation of a valid contract. It is based on the existence of an effective contractual relationship.

    The liability for contracting fault is only applicable to the process of concluding a contract, and the contract is not established, invalid or cancelled.

    A very important criterion for judging liability for breach of contract and contracting fault liability is to see whether contracts are effectively established.

    If there is an effective contractual relationship between the two parties, the liability for breach of contract is applicable. If there is no effective contractual relationship between the two parties, liability for contracting fault can only be applied.

    2, the form of responsibility is different.

    The contracting parties may agree on the form of liability for breach of contract, and may stipulate the amount of the liquidated damages or the terms such as deposit.

    The liability for contracting fault excludes the agreement or exemption clause of the contracting parties, but directly derives from the direct provisions of the law.

    If the parties agree in the contract, they are also invalid because of the direct provisions of the law. Their liability can only be compensation for damages, and the parties can not arbitrarily choose.

    In general, the loss of trust interest is the compensation for the loss suffered by the other party.

    3, the principle of imputation is different.

    Contracting fault liability can only apply the principle of fault liability 1., that is, only when the contracting party is at fault, can it produce fault liability for contracting, or both parties are liable for each other's fault.

    If one of the parties concerned or both parties has no fault, although there is also damage and cause losses to one party or both parties, there is no need to bear liability for contracting fault.

    On the one hand, the principle of fault liability requires the subjective fault of the contracting parties as the fault liability for contracting.

    That is to say, to determine the liability for contracting fault should not only breach the contract, but also cause the loss of the trust interest of the other party. Moreover, the contracting party does have fault in the subjective sense. On the other hand, this fault must have a causal relationship with the loss of the trust interest, so as to determine the scope of the culpa in contract.

    The principle of liability for breach of contract generally applies to the principle of no fault presumption.

    As an exception or supplement, the principle of presumption of fault is also applicable.

    The principle of no fault liability does not ask the parties who violate the contract obligation whether they are subjective or not. They all require the breaching party to bear the responsibility for breach of contract.

    The provisions of the 107th contract law of our country confirm this principle.

    At the same time, the principle of fault liability applies to the well-known contract stipulations, such as 189th, 191st, 320th, 374th, 406th and 425th articles of the contract law, thus forming a legislative pattern with strict responsibility as the leading factor and the principle of fault liability as an exception and supplement.

    4, the scope of compensation is different.

    The compensation for breach of contract is the performance benefit, which is subject to prequalification.

    • Related reading

    The Difference Between Anticipatory Breach And Actual Breach Of Contract

    Rules and regulations
    |
    2008/12/18 16:29:00
    41925

    Incidental Obligations In The Performance Of Contracts

    Rules and regulations
    |
    2008/12/18 16:28:00
    41921

    Limitation Of Action In Invalid Contracts

    Rules and regulations
    |
    2008/12/18 16:25:00
    41934

    Register China Trademark

    Rules and regulations
    |
    2008/12/12 16:24:00
    41900

    What Conditions Do Entrepreneurs Need To Apply For Patents?

    Rules and regulations
    |
    2008/11/21 14:12:00
    41890
    Read the next article

    Earnest Money Contract

    1. The concept and characteristics of the deposit contract. The deposit contract is a contract for the parties to sign the main contract. In order to ensure the performance of the main contract, a party who has paid a certain amount of money from the contract in advance is signed by a party from the contract. After the debtor has performed the debt, the deposit should be recovered or made to the price. The party who pays the deposit does not have the right to ask for the return of the deposit.

    主站蜘蛛池模板: 亚洲国产欧美在线观看| 91呻吟丰满娇喘国产区| 亚洲精品网站在线观看你懂的| 国产欧美综合一区二区三区 | 久久亚洲精品人成综合网| 亚洲美免无码中文字幕在线| 国产午夜av秒播在线观看| 国产毛片久久久久久国产毛片| 国产免费的野战视频| 国产精品亚洲片在线观看不卡| 成人动漫h在线观看| 扒开美妇白臀扒挺进在线视频| 欧美日韩一级片在线观看| 日本人强jizzjizz| xxxx俄罗斯大白屁股| yuijizz| 久久久久久青草大香综合精品| 久草免费手机视频| 亚洲欧洲精品成人久久曰影片| 亚洲精品国产综合久久久久紧| 亚洲va成无码人在线观看天堂 | 北岛玲日韩精品一区二区三区 | 最近中文字幕高清中文字幕电影二| 狼色精品人妻在线视频| 一区二区中文字幕在线观看| 中文字幕不卡在线| 久久人人爽人人爽av片| 中文字幕日韩一区二区不卡| 久草视频在线免费看| 一本大道香一蕉久在线影院| 久久99精品久久久久久噜噜 | 精品一区二区三区电影| 草久视频在线观看| 国产成人三级视频在线观看播放| 香蕉大伊亚洲人在线观看| 男女一进一出猛进式抽搐视频| 老师开嫩苞在线观看| 蜜臀av无码精品人妻色欲| 精品国产三上悠亚在线观看| 草莓视频未满十八岁| 欧美日韩福利视频|