Study On Performance Obstacles Of Contract Of Carriage Of Goods

As one of the fifteen types of typical contracts in "Contract Law",the contract of carriage has not ouly the common points of general contracts,but also the special points.If the contract is not performed properly,it can be included in the category of "obstacles to performance" whether the performance is incapable,delayedor incomplete,or whether the parties'actions are faulty or not."Obstacles to the performance of contracts"is a concept used to investigate comprehensively and interrelated problems when the periormance of contracts can not be achieved as schedule.The research on the obstacles to contract performance mainly focuses on the aspects of the failure of contract debt to perform normally,the failure of creditor's rights to be repaid normally,and the corresponding treatment methods.It does not simply study a law,but provides a systematic platform for the study of the coordination of various systems of contract law.This paper takes the performance obstaelesof the contract of carriage of goods as the research object,combines "Contract Law" and the relevant laws and regulations of carriage with the specific cases in transportation practice,analyses the expressions of the performance obstaclesof the contract of carriage of goods from the perspective of serialization,and expounds the remedial measures.The main body of the article is divided into three parts,seven chapters totally.The first part is the Chapter l,which elaborates the basic theory of the performance obstacles of the contract of carriage of goods.Firstly this chapter states the legal interpretation and characteristics of the contract of carriage of goods,especially emphasizes the special legal characteristics of the contract of carriage of goods,and points out the legal application of the contract of carriage of goods in China;then introduces the establishment of the system of the contract performance obstacles,and defines the subject scope,time scope and cause scope;and then elaborates the legal evolution of the system of the contract performance obstacles,explores the trend of integration of the legislation of the contract performance obstacles and the relevant legislative intentions in China from "the cause approach" and "the remedy approach",and finally reveals the special legal risks existing in the performance obstacles of the contract of carriage of goods.The second part includes the Chapter 2 and Chapter 3,whichdescribe the main performance obstacles of the contract of carriage of goods.Chapter 2 analyzes the objective performance obstacles of the contract of carriage of goods.Firstly,it studies the force majeure to the performance of the contract of carriage of goods,reveals the scope of force majeure which hinders the performance of the contract of carriage of goods,analyses the legal impact of force majeure and explores the application of law between the force majeure and accidents in the contract of carriage of goods.Secondly,it studies the obstacles of the rebus sic sicutibus principle to the performance of the contract of carriage of goods.Starting from the legal evolution of the rebus sic sicutibus principle,it expounds the constituent elements of the rebus sic sicutibus principle and explores the concrete application of the rebus sic sicutibus principle in the performance of the contract of carriage of goods.Finally,it studies the impossibility of performance of the contract of carriage of goods,analyses the current law in China and reveals the legal influence of the impossibility of performance of contract of carriage of goods.Chapter 3 analyzes the subjective performance obstacles of the contract of carriage of goods.Firstly,it studies the delay in performance of the contract of carriage of goods,reveals the constituent elements of the delay in performance of the contract of carriage of goods,analyses the identification,aggravation and mitigation of the responsibility for the delay in performance,and explores the partial delay in performance and the end of delay in performance.Secondly,it studies the refusal to perform to the contract of carriage of goods,elaborates the constituent elements of the refusal to perform in the contract of carriage of goods are elaboratedand analyzes the reasons for refusal.Thirdly,it studies the inadequate performance of the contract of carriage of goods,which starts from the legal evolution of the inadequate performance,and confirms the types of inadequate performance of the contract of carriage of goods and its legal effects.Finally,it studies the creditor's delay on performance of the contract of carriage of goods,analyzes the constituent elements of creditor's delay,expounds the adverse effects of creditor's delay,and probes into the time definition about the consignee taking delivery in the performance of the contract of carriage of goods.The third part includes Chapter 4 to Chapter 7,which studies the main remedial measures for the performance obstacles of the contract of carriage of goods.Chapter 4 elaborates the basic legal category,the types and the relativity of contract relief in the contract of carriage of goods,which points out that the main relief measures in the contract of carriage of goods are compulsory performance,damage compensation and contract abolition.Chapter 5 studies the compulsory performance for the performance of the contract of carriage of goods,which starts from the legal interpretation and the compulsory performance,analyzes the constituent elements of compulsory performance,reveals the main ways and concrete manifestations of compulsory performance of the contract of carriage of goods,and explores the situations that are not suitable for compulsory performance and the "re-negotiation obligations" on performance of the Contract.Chapter 6 studies the damage compensation for the performance of the contract of carriage of goods,which starts from the legal interpretation and classification of damage compensation,reveals the law principle of liability for damages in China,analyzes the constituent elements of damage compensation in the contract of carriage of goods,expounds the scope of liability for damages,as well as the application of claims for compensation,delayed compensation and compensatory damages.Then it analyzesthe for special rules of damage compensation in the contract of carriage of goods,which arethe rule of foreseeability,the rule of contributory negligence,the rule of derogation and the rule of Vorteilsausgleichung.Finally,it explores the calculation of damage compensationin the contract of carriage of goods from the aspects of calculation method,calculation standard and calculation time point.Chapter 7 studies on the contract abolition for the performance of contract of carriage of goods,which starts from thetypes of rescission of contract,legislative intentions,legal attributes and particularities of contract abolition of carriage of goods,analyzes the occurrence,exercise and elimination of contract abolition of carriage of goods.This paper mainly adopts the methods of system analysis,literature study and case study to study the performanceobstaclesof the contract of carriage of goods.At the same time,the article uses a large number of first-hand materials in the practice of cargo transportation,and corroborates with the relevant legal provisions and the research results of experts and scholars.In some chapters,the article studies the differences of legislative provisions between "contract law" and single law of cargo transportation,and puts forward some new views on the existing legal provisions for promoting the normal performance of the contract of carriage of goods,such as proposing that the provisions about the period of consignee's inspection in "Maritime Law" should be extended to other contracts of carriage of goods,the calculated level about the damage compensation of goods should be unified between "Contract Law" and "Maritime Law".Finally,the article draws the conclusion that the relevant legal provisions concerning the performanceobstacles of the contract of carriage of goods should be integrated and systematized,and the legal provisions should be more closely integrated with the transport practice,and constantly innovate and develop with times,so as to promote the correct implementation of the contract of carriage of goods,realize the contracting purposes of both parties,provide more information for the trade contract and play an active role of freight transport in the development of national economy.