On The Concurrence Of Liability For Breach Of Contract And Liability For Tort

Since the initial separation in Roman law of liability for breach of contract from liability for tort,these two types of liability constituted two main masts of the civil liability system, and jointly upheld and promoted the advancement of the system of Romano-Germanic family. As a result of the family's penchant for logic and systematization in its course of codification, liability for breach of contract and tort liability were strictly demarcated even from the very beginning, and thus formed their own distinct scopes of application, constitutive requirements and types of responsibility, etc. However, with the everlasting enrichment and development of social practice, and the further refining and deepening of the study on civil liability theories, the phenomena of concurrence of liabilities was gradually found that one legal act may tally respectively with the constitutive requirements of liability for tort or liability for breach of contract at the same time. In the wake of their mutual infiltration and expansion of function and scope of protection, the traditional boundary between these two types of liability became increasingly more relative than absolute, and the concurrence of liability for tort with liability for breach of contract also became more and more common. As the two types of liability differ in regard to the scope of compensation, constitutive requirements, burden of proof, statute of limitations, jurisdiction and some other aspects, then which liability shall apply when such concurrence occurs to the obligee will bring about different legal consequences, and sometimes that choice will greatly impact on the rights and interests of obligee. Therefore, the concurrence of liability for tort and liability for breach of contract gradually entered the field of theory study as a legal problem.In the light of the evolution of theoretical research, the unpredictable consequences resulted from concurrence of liabilities derogate not only from the quality of certainty, but also the value of fairness and justice of law, thus the substantive law scholars focused upon the relationship between tort liability and liability for breach of contract, and gradually developed doctrines such as concurrence of norms, concurrence of claim and normative concurrence of claim to solve the problems pertaining to application of law when more than one liabilities concurs. But given the complexity of such concurrence per se and its various types, to govern and interpret all kinds of concurrence of liabilities merely by one doctrine is not only improbably self-consistent in theory, but also fails in practice to work as predicted. Therefore, to choose the applicable fields of different doctrines and theories according to the different types of concurrence, is the better way to bring theory into conformity with phenomena. Meanwhile, because there are at least two types of claim involved when liabilities concurs, and whether they could be lodged at the same time is a problem, not only substantively, but also procedurally, hence the favor of procedural law scholars. They developed from the perspective of object of litigation such doctrines as old substantive law, new object of litigation, new substantive law and so on to meet the demand to cope substantively with concurrence. However, these theories were created to help substantive law theories work, thus only of auxiliary function in procedure and no independent value to solve concurrence problems.As the concurrence of liabilities involves not only the protection of the parties' interests, but also the harmony of a country's legal system and the implementation of specific legislative purpose, so different countries in different historical periods take different attitude towards such concurrence according to the different characteristics of their own legal systems, and form different ways to process concurrence of liabilities in the course of their legislative and judicial practice. France takes account of the narrowness of its contract law and extensiveness of the tort law, thus adopts an attitude of acknowledging no concurrence to tackle concurrence of liability for breach of contract and tort liability, which is in accordance with the characteristics of its legal system; Germany takes account of the narrowness of its tort law, thus grants the concurrence of liabilities through the extension of contract law, which dose no harm to its dichotomy of contract law and tort law; The conditional recognition of concurrence adopted by Anglo-American countries also comply with the tradition of their legal system, which takes obligation as the core and remedy as the guide. Although different countries differ in their ways to deal with concurrence of liabilities, they all, in view of their understanding of concurrence, have experienced the course from recognition of no concurrence to of concurrence, and from recognition of merely conflicting concurrence to of both conflicting and non-conflicting concurrence. And given the trend of legal modernization, while admitting the conflict of concurring liabilities, most countries give more emphasis on the concurrence of conflicting liabilities. The legislative convergence and judicial integration as to tort liability and liability for breach of contract, are both aimed at reducing the risk of concurrence of liabilities or avoiding its negative effects, so there is no right or wrong about the theories and practices adopted by different countries with respect to such concurrence. To compare the theories and practices of different countries should evaluate in combination with their legal bases and practical needs, only then can we draw lessons from their experience, and at the same time grasp the development trend of concurrence of liabilities to better improve China's law.By means of article 122 of the Chinese Contract Law, China has established the legal system governing concurrence of liability for breach of contract and tort liability. As one of the few distinct examples which recognize concurrence of liabilities through law, its significance should not be ignored. However, as a derivative of reference to Germany law when China drafts its own contract law, this provision does not suit the practical system structure of China's contract law and tort law, and its legislative pattern of "alternative choice" is not only theoretically criticized, but also unfeasible in judicial practice. Therefore, based on the tolerance towards concurrence of liabilities that derives from China's system structure in which a macro contract law intertwines a macro tort law, the idea of drafting a uniform civil liability law to eliminate the boundary between liability for breach of contract and tort liability does not conform to the reality of our country, and thus for now the judicial integration of the two types of liability is probably the only way out for China‘s liability concurrence system. Due to the virtually equivalent effect of the doctrine of interaction of claim and doctrine of normative concurrence of claim in processing concurrence, and the better theoretical support they can provide to application of law in processing more complicated types of concurrence, these two doctrines should be taken as guide in judicial practice, and in the application of conflicting norms when liabilities concurs the judges should choose in line with the types of concurrence. At the same time, corresponding to the substantive law theories, China should adopt the new substantive law doctrine in the context of theory of object of litigation to form a complete set, and give judges greater right of interpretation and discretion in handling concurrence of liabilities.