A Comparative Study On System Of Leistungsstoerungen

Leistungsstoerungen means that the obligor does not perform his duties according to the contract. It means a lot to the breach liability, for the ways and conditions are different according to the way we deal with it. The legal examples of different countries are divided into two systems, firstly the system of dualism, and secondly the unified system, the continental countries almost take former one, and the anglo-america countries and many international treaties almost take the latter one.The characteristic of dualism system is that liabilities of warranty of quality differs from the liabilities of common leistungsstoerungen system, and forms a kind of independent contract liability. This kind of legislation can date back to Roman law, through French law and German law it spread its influence into the main nations and districts of continental law. Even the English law after 2002 reform digested some ideas of this kind of legislation.Roman law created the dualism system of leistungsstoerungen. This creative achievement started with the idea that cared more for customers and lessee. And this kind of special protection was realized by setting special regulations for most familiar transactions in daily life, providing more remedies for special people like customers and lessee, and making suitable concessions in the conditions of liability. In Roman law we can not find any regulation that reflected the idea of "Caveat Emptor" that was very popular in English law. It can be said that Roman law set a good example for countries that accept continental law in keeping balance between economic growth and social justice, and this choice of value is still not out-dated nowadays.The characteristic of Roman law was kept in French law, the regulations of warranty of quality in French law were almost identical with that of Roman law. And what really mattered in the system of leistungsstoerungen was the liability of warranty of quality set by law, for if there were some agreements about the quality of the objects, whether express or implied, between the parties, the regulations that applied were that of the common liabilities of breach. The regulations of the liability of warranty of quality set by law in French law were nearly identical with that of Roman law, but because the regulations of common liability of breach were totally different, the independence ofliability of warranty of quality presented another face in the manner, scope of remedy, the right of rescission and so on.The Germans sublimed the regulations of Roman law by their abstract thinking pattern, this kind of sublimation relied not only on the regulations of warranty of quality, but also on the summarization and conclusion of forms of breach of Roman law. On one hand, former obligational law of German peeled the regulations of warranty of quality off the common system of leistungsstoerungen, made it totally independent, and by doing so it pushed the tradition of Roman law to a new apex; on the other hand, according to a maxim of Roman law former obligational law of German used "impossibility of performance" as its core definition, and divided the breach into three forms: impossibility of performance n delay and positive breach according to the cause of breach. The rules of sales, lease and some special kinds of contracts are quite different from the rules of impossibility of performance > delay and positive breach. So we can say that liability of warranty of quality formed a totally independent kind of liability that differed from the common liability of breach of contract. This division made great contribution to former German obligational law. Because of the independence of the liability of warranty of quality, breach of contract did not lead to the same liability under all circumstances. Former obligational law provided different remedies for different parties. But just because so, the common system of leistungsstoerungen can not include all situations of breach, and the German courts found it so difficult to deal with this kind of problems, this is why German modified its obligational law in 2002.On 1 January 2002, the most sweeping reform that has ever affected the code entered into force. It has remoulded large parts of the German law of obligations. At the same time, it has led to a deep division among legal scholars in Germany. For, on one hand, the reform was hailed as having been overdue and as bringing some of the most outdated parts of the BGB into line with modern international developments. On the other hand, there has been fierce criticism focusing, in particular, on the extraordinarily tight schedule for forcing through such fundamental changes. It might have been better, so it was maintained, to have an old code rather than a bad and ill-prepared one. It is not easy to provide a fair assessment of these different views. There is some truth on both sides. When the idea of a reform of the law of obligations was first mooted the reform was to have been comprehensive. Thus, it was intended to cover areas like unjustified enrichment, delict and strict liability, suretyship and partnership. By the time, however,when the commission charged with the revision of the law of obligations was appointed in 1984, the project had become somewhat less ambitious. It was decided to confine the commission's brief to the law of breach of contract, liability for defects in contracts of sale and contracts for work, and extinctive prescription (limitation of claims). The discussion draft, however, once again extended the scope of the reform. In the end, the following areas of the law of obligations have been affected: extinctive prescription, breach of contract, contracts of sale, contracts for work, credit transactions, and restitution after termination for breach of contract. The Standard Contract Terms Act and a number of special statutes aiming at the protection of the consumer have been integrated into the BGB. But as a result the revised obligational law did not eliminate the special liability of warranty of quality.Although Japan accepted German law mostly, but unlike other countries, Japan did not copied German law word by word, but made some modifications to the German and Roman law. On forms of breach, Japanese law accepted the division of breach into three forms-impossibility of performance, delay and positive breach. But on the liability of warranty of quality, the rules of liability of warranty of right in Japan were more similar to that of the German and Roman law. This made the system of leistungsstoerungen of Japan very special among countries that accepted continental law.The characteristic of unified system of leistungsstoerungen is that all different types of breach are governed by a unified rule, no matter what the cause is. Defective delivery is also a kind of breach, the rules governs it is no different. This kind of legislation is popular in anglo-american law countries and some international treaties.The reason why anglo-american law is the representative of unified system of leistungsstoerungen is that anglo-american law use a unified rule govern all the breaches, no matter what the cause is. This was because that on one hand there was no implied warranties of quality in early English law; on the other hand English law was not interested in the reasons why there came these breaches. When there were breaches, what the judges of anglo-american law thought about was whether the term been broken was a "condition" or a "warranty". As for whether the breach was cause by impossibility or delay or defective delivery does not matter. Although ((Sales of Goods)) of England and ((Uniform Commercial Code)) of USA set implied warranty duties, the rules that applied when these duties were broken were no different. So the liability of warranty of quality is just one kind of common liability of breach, conditions of liability and theremedy was all the same. This was not modified until the 2002 ((Sales of Goods)) came into force.In the new English ((Sales of Goods)) ,when there was a breach of contract, firstly the judges must decide whether the breach was a defective delivery, if it was so then the vendee can set a reasonable period for the vendor, and called for repair or change, the vendee can also called for reduction of price or rescission of the contract; if it was not so, the judges must decide whether the terms been broken was a "condition" or a "warranty". If it was a "condition", it gave rise to rescission and damages, if it was a "warranty", it only gave rise to damages or specific performance. This was the whole system that works now in England.Some related international treaties such as ((ULIS)) in 1964, CCISG)) in 1980 were almost the same as that of the anglo-american law in this area.By comparison between these two different systems, I think that the system of Roman law is more favorable, independent liability of warranty of quality can do better when the weakers called hopelessly for help, what we should do is not to weaken this independency, but to eliminate the old definition system of common leistungsstoerungen, do not let the problems of common leistungsstoerungen bother the rules of warranty of quality any more.