Studies On Contracting Fault Liability

According to the theory of classic contract law, there is no liability between both contracting parties if there is no contract. But in the course of contracting, both parties have entered into a special mutual-reliance relationship from the general social relationship. If one party's defaulting results in non-formation, invalidity, or rescission of a contract, non-defaulting party will bear the damages in interest brought about by trusting other party. The theory of classic contract law couldn't solve the problem of remedy at law for the losses of interests. Therefore, in pursuit of the protection for reliance relations between contracting parties and the promotion of transaction safety and efficiency, contracting fault liability comes into being. Since Jhering raised the theory of contracting fault liability, the countries in continental law system has generally established the theory of contracting fault liability in legislations or judicial precedents, which also affects the Anglo-American law system and the uniform of legislation in international commerce. Contract Law in our country has accordingly stipulated as well. However, after many countries have made the stipulations in system accordingly, the probe into the system in theory has not been perfected so far. And some basic questions in contracting fault liability, such as its concept, nature, applicable types, scope of compensation, has not been illustrated clearly in theory. In our country, some scholars have made some achievements in the study on the theory of contracting fault liability, but in general, thoseachievements characterized with the features of dispersion and disorders. So the study on contracting fault liability still has great significance and realistic value. By using the ways of positive analysis and comparative study, this paper discusses the problems in contracting fault liability, such as its concept, nature, composition, types of application, scope of compensation and burden of proof and so on, hoping to benefit the perfect for the system of contracting fault liability in our country.