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The Study Of The Theory Of Precontractual Liability

Posted on:2004-01-15Degree:MasterType:Thesis
Country:ChinaCandidate:L M YangFull Text:PDF
GTID:2156360095952122Subject:Legal
Abstract/Summary:PDF Full Text Request
The theory of contracting liability for negligence, tracing back to Roman Laws, was first elaborated systematically by Jhering, a German. It has been developed rapidly and adopted by the mainland law system, British and American law system and the Unified Law in international commercial affairs since 20th century. After its establishment, the theory gives foundation for the solution of the relief problems raised when one party of the treaty damages the interests of the other party and makes up the defects that the traditional contract law and tort law cannot give thorough relief to the aggrieved party. Therefore, it protects the interests of the honest party of the treaty and promotes the commercial security.Since it came into being, the theory of the liability for fault in a treaty has influenced many countries and areas and has been fully developed in legislation and legal precedents in these countries .The article' is to study the further development of the theory in China through comparing the legislation legal precedents and theories of different countries and taking the actual situations into account. In view of the defects of the liability for fault in a treaty in the existing legislation in China, it advances construction in legislation and judicature and focuses on clarifying the following point:a. The right of request of the liability for fault in a treaty should be based only on the principle of honesty and credit and if we are to determine that an act of signing a treaty is wrong and violates the principle of honesty and credit, we must perform it by ascertaining whether there is an act of violation in the pre-contract duties.b. Pre-contract duties, based on the principle of honesty and credit, are effective after the offering comes intoeffect and before the contract is put into use. The duties result from the contract signed by the two parties and are attached to the treaty, including duties of assistance, protection, informing and keeping secret.c. There are three important conditions of the liability for fault in a treaty, which are the violation of pre-contract duties, the fact of damage and the causality between the wrong act in signing the treaty and the fact of damage.d. The compensation of the liability for fault in a treaty includes compensation for the loss of the interests of being trust and intrinsic interests. Only of one party of the treaty goes against the pre-contract duties and cause damages to the other party, the former should under take contract have come into effect or not.e. In some cases, the liability for fault in a treaty will mix together with tort liability or the liability of breaking a contract. When this happens, the party concerned should choose a right of request to solve the problem.In brief, the liability for fault in a treaty is a responsibility of civil compensation, which happens after the offer comes into use and before the contract is put into use, when one party violates the pre-contract duties, based on the principle of honesty and credit, and causes damages to the other party' s interests of being honest and intrinsic interest. It is an independent civil liability of tort. In our country, in order to develop a perfect system of the liability for fault in a treaty through improving the theory, we should attach much importance to legislation as well as judicialprecedents and theories, so the judges and jurists can take initiatives to advance the development of the system of the liability for fault in a treaty in China.
Keywords/Search Tags:contracting liability for negligence, conditions of liability, ranges of the compensation, mixture of liabilities
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