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Hello, the answers to the above questions are as follows,
1. The concept of liability for breach of contract The liability for breach of contract is the abbreviation of the civil liability for breach of contract, which refers to the civil liability that one party to the contract should bear if it fails to perform its contractual obligations or if its performance does not conform to the contract. Article 111 of the General Principles of the Civil Law and Article 107 of the Contract Law have made general provisions on liability for breach of contract.
2. Legal characteristics of liability for breach of contract: 1) Liability for breach of contract is a kind of civil liability legal liability, which includes civil liability, administrative liability, criminal liability and other types. Civil liability refers to the civil legal consequences that civil subjects should bear according to the civil law due to the implementation of civil illegal acts or based on special provisions of the law in civil activities. The General Principles of Civil Law has a chapter of "civil liability"（
Chapter VI) stipulates two kinds of civil liability: liability for breach of contract and liability for tort. As a civil liability, the liability for breach of contract is different from other legal liabilities in terms of purpose, constitutive requirements, liability form, etc. 2) The liability for breach of contract is the liability that one party in breach of contract bears to the other party. The relativity of the contractual relationship determines the relativity of the liability for breach of contract, that is, the liability for breach of contract is the civil liability between the parties to the contract
A third party shall not be liable for breach of contract between the parties. Specifically:
(1) The liability for breach of contract is the responsibility of the parties to the contract, not the responsibility of their assistants (such as agents);
(2) The parties to the contract shall be liable for the breach of contract caused by a third party. Article 121 of the Contract Law stipulates that if one party breaches the contract due to a third party, it shall bear the liability for breach of contract to the other party. Disputes between one party and a third party shall be settled in accordance with the law or agreement. 3) The responsibility for breach of contract is the responsibility of the parties for their failure to perform or incomplete performance of the contract
First of all, the liability for breach of contract is the liability for breach of contract. The validity of the contract is the prerequisite for assuming the liability for breach of contract. This feature distinguishes the liability for breach of contract from other civil liabilities in the contract law, such as liability for fault in contracting and liability for invalid contracts.
Secondly, the liability for breach of contract is conditional on the parties' failure to perform or incomplete performance of the contract. There are two cases of breach of contract that can produce liability for breach of contract: one is that one party fails to perform its contractual obligations, that is, fails to provide benefits as agreed in the contract; Second, the performance of contractual obligations does not meet the agreed conditions, that is, there are flaws in its performance. 4) The liability for breach of contract is compensatory and arbitrary
1、 The main purpose of liability for breach of contract is to compensate the observant party for the loss caused by the breach of contract, and the main form of liability is compensation for damages, so it has the nature of compensation. his
2、 The liability for breach of contract can be agreed by the parties within the scope of the law, which has a certain arbitrariness. Paragraph 1 of Article 114 of the Contract Law stipulates that: the parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party in accordance with the circumstances of the breach, or may agree on the calculation method of the amount of compensation for losses arising from the breach.
3. The form of liability for breach of contract The form of liability for breach of contract is the specific way to bear the liability for breach of contract. In this regard, Article 111 of the General Principles of the Civil Law and Article 107 of the Contract Law have made explicit provisions. Article 107 of the Contract Law stipulates that if one party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the agreement, it shall be liable for breach of contract by continuing to perform, taking remedial measures or compensating for losses. Accordingly, there are three basic forms of liability for breach of contract, namely, continued performance, remedial measures and compensation for losses. Of course, in addition, there are other forms of liability for breach of contract, such as liability for liquidated damages and deposit. 1) The concept of continuous performance. Continuing performance, also known as compulsory actual performance, refers to the form of liability for breach of contract in which the breaching party continues to perform its obligations under the contract according to the request of the other party. Its characteristics are:
(1) Continuing performance is a form of liability for breach of contract, which is different from contract performance in the general sense. Specifically, the premise of continued performance is breach of contract; Continued performance embodies the compulsion of law; Continued performance is not dependent on other forms of responsibility.
(2) The content of continued performance is to perform obligations according to the subject matter agreed in the contract, which is no different from general performance.
(3) Continued performance is conditional on the request of the other party (the observant party), and no judgment may be made directly. Application of continued performance. The application of continued performance varies with the nature of the debt: monetary debt: unconditional application of continued performance. There is only delay in performance of monetary debts, and there is no impossibility of performance. Therefore, the form of continuing performance should be applied unconditionally. Non monetary debt: continue to perform if conditions permit. In principle, non monetary debts can be requested to continue to be performed, except for the following circumstances: (1) legal or factual inability to perform (inability to perform); (2) The subject matter of the debt is not applicable to compulsory performance or the cost of compulsory performance is too high;
(3) The creditor fails to request performance within a reasonable period of time (such as the supply of seasonal goods). 2) The meaning of taking remedial measures. Taking remedial measures, as a form of liability for breach of contract, refers to specific measures to correct improper performance of the contract (unqualified quality) and eliminate performance defects. This form of liability is complementary to continued performance (solving the problem of non performance) and compensation for losses. Type of remedial action taken. With regard to the specific ways to take remedial measures, relevant laws of our country have made the following provisions: (1) Article 111 of the Contract Law stipulates: repair, replacement, rework, return of goods, reduction of price or remuneration, etc; (2) Article 44 of the Law on the Protection of Consumers' Rights and Interests stipulates that: repair, rework, replacement, return, supplement the quantity of goods, refund the payment for goods and service fees, and compensate for losses; (3) Article 40 of the Product Quality Law stipulates: repair, replacement and return. Application of remedial measures. In the application of remedial measures, attention should be paid to the following points: (1) The application of remedial measures is based on the premise that there is no agreement or unclear agreement on the liability for breach of contract for unqualified quality in the contract, and the liability for breach of contract cannot be determined according to Article 61 of the Contract Law. In other words, if the parties have an agreement on the form of liability for breach of contract for improper performance, such agreement shall prevail; There is no agreement or the agreement is unclear,
Firstly, the liability for breach of contract should be determined according to Article 61 of the Contract Law; If there is no agreement or the agreement is unclear and the liability for breach of contract cannot be determined in accordance with Article 61 of the Contract Law, these remedial measures shall apply. (2) The appropriate remedy shall be determined based on the nature and loss of the subject matter. (3) The aggrieved party has the right to choose remedial measures, but the way of selection should be reasonable. 3) The concept and determination method of compensation for losses. Compensation for losses, also known as damages for breach of contract in the contract law, refers to the form of liability of the defaulting party to make up for the property lost or the interests lost by the injured party due to the breach of contract by paying money. Compensation for losses has the following characteristics:
1、 Compensation for losses is the most important form of liability for breach of contract. Compensation for loss has the basic relief function, and any other form of liability can be transformed into compensation for damage. Section
2、 Compensation for losses is to make up for losses by paying money. Money is a general equivalent, and any loss can generally be converted into money. Therefore, compensation for loss mainly refers to monetary compensation. However, under special circumstances, other things can also be used as compensation instead of money. Section
3、 Compensation for losses means that the breaching party shall compensate the non breaching party for the losses incurred due to breach of contract.
First of all, compensation for losses is the compensation for losses caused by breach of contract, and losses unrelated to breach of contract are not included in the compensation.
Secondly, compensation for losses is a kind of compensation for the losses suffered by the observant party, rather than a punishment for breach of contract. Section
4、 The liability for damages is arbitrary. The scope and amount of compensation for breach of contract may be agreed upon by the parties. The parties may both agree on the amount of liquidated damages and on the calculation method of damages. There are two ways to determine the damages: statutory damages and contractual damages. Statutory damages. Legal damages refer to the legal liability of the defaulting party to compensate the non defaulting party for the losses suffered by the non defaulting party due to its breach of contract. According to the provisions of the Contract Law, the legal damages shall follow the following principles:
Section
1、 The principle of full compensation. The breaching party shall be liable for compensation for all losses suffered by the non breaching party due to breach of contract. Including: direct loss and indirect loss; Positive loss and negative loss (loss of available profits). Article 113 of the Contract Law stipulates that losses "include the benefits that can be obtained after the performance of the contract". It can be seen that the scope of compensation includes the loss of existing property and the loss of available benefits. The former is mainly manifested in the loss of the subject matter, expenses incurred to prepare for the performance of the contract, shutdown losses, expenses incurred to reduce the loss of breach of contract, litigation costs, etc.; the latter refers to the property interests that can be realized and obtained after the proper performance of the contract.
Section
2、 The rule of reasonable foresight. The scope of damages for breach of contract shall be limited to the losses that the breaching party foresaw or should have foreseen when concluding the contract. The rule of reasonable foresight is an important rule to limit the scope of legal damages for breach of contract. Its theoretical basis is the principle of autonomy of will and the principle of fairness. The following points should be grasped:
① The rule of reasonable foresight is a rule that limits the total amount of compensation for losses including real property losses and loss of available interests, not only to limit the compensation for loss of available interests;
② The rule of reasonable foresight is not applicable to agreed damages;
③ Whether or not possible losses are foreseen or should be foreseen shall be judged according to the facts or circumstances at the time of conclusion of the contract. Section
3、 Mitigation rules. After one party breaches the contract, the other party shall timely take reasonable measures to prevent the loss from expanding, otherwise, it shall not claim compensation for the expanded loss. Its characteristics are as follows: one party's breach of contract leads to losses; The opposite party failed to take appropriate measures to prevent the expansion of losses; It caused the expansion of losses. Agreed damages. Agreed damages refers to that when the parties conclude a contract, they agree in advance that one party should pay a certain amount of compensation to the other party in case of breach of contract or agree on the calculation method of the amount of damages. It is predetermined (determined at the time of contracting), subordinate (based on the validity of the main contract), and conditional (based on the occurrence of losses). 4) The concept and nature of liquidated damages. Liquidated damages refer to a certain amount of money or property that one party should pay to the other when it violates the contract. According to different standards, liquidated damages can be divided into: (1) statutory liquidated damages and agreed liquidated damages; (2) Punitive liquidated damages and compensatory (compensatory) liquidated damages. Before the implementation of the Contract Law, China's liquidated damages system was compatible with the above various forms, and the Contract Law made new provisions. According to the provisions of the current contract law, the liquidated damages have the following legal characteristics: (1) It is pre agreed in the contract (one of the contract terms); (2) It refers to a certain amount of money paid by one party to the other party in case of breach of contract (fixed damages); (3) It is an agreement on bearing the liability for compensation (different from general contractual obligations). As for the nature of liquidated damages, it is generally believed that the liquidated damages system established by the current contract law is not punitive, but compensatory. Even if the agreed amount of liquidated damages is higher than the actual loss, this basic attribute cannot be changed. The Contract Law does not clearly stipulate whether the parties can agree on purely punitive liquidated damages. It is generally believed that such agreement is not invalid, but its nature is still damages for breach of contract. Increase or decrease of liquidated damages. Liquidated damages is a pre agreement on the amount of damages, which may be higher or lower than the actual loss, and abnormal high and abnormal low will lead to unfair results. Therefore, the laws of various countries stipulate that judges have the right to change the liquidated damages, and the second paragraph of Article 114 of the Contract Law of China also stipulates. Its characteristics are: (1) conditional on the agreed liquidated damages being "lower than the loss caused" or "excessively higher than the loss caused"; (2) At the request of the party concerned; (3) At the discretion of the arbitration institution;
(4) "Increase" or "appropriately reduce". 5) Down payment liability The so-called down payment refers to the money or other substitutes that one party gives to the other party in advance according to a certain proportion of the contract subject amount according to the agreement of both parties to ensure the performance of the contract. This guarantee law has made special provisions. Article 115 of the Contract Law also stipulates that the parties may, in accordance with the Security Law, agree that one party shall pay a deposit to the other party as security for the creditor's rights. After the debtor has performed his obligation, the deposit shall be set off against the price or recovered. If the party who pays the deposit fails to perform its agreed obligations, it shall not have the right to demand the return of the deposit; If the party receiving the deposit fails to perform its agreed obligations, it shall return twice the amount of the deposit. Accordingly, when the parties have agreed on the deposit guarantee, if one party breaches the contract, the deposit penalty will become a form of liability for breach of contract.
Reply at 12:05:05 on November 8, 2020
