The Theory Of Responsibility For Negligence Of Concluding A Treaty

The theory of responsibility for negligence of concluding a treaty is originated from the civil ligation and contrast of Roman law honest and trustworthy. It was first posed by Yelin, a famous German jurist in 1861 when he published an article, "Fault in Concluding a treaty: the compensatory responsibility of invalid contract and untenable contract" in the fourth issue of "Annals of Yelin's science of law," whose chief editor was himself. In this article he systematically and deeply analyzed t he theory of responsibility for fault in concluding a treaty. He thought that under the condition that the contract is invalid or untenable, we should resolve issues according to contract law. Thus, it overthrowed the non-contract of positivism law namely responsibility doesn't set forth he's views, and it was honored "discovery in science of law". When Yelin's theory has been put forward, it has became an theoretic problem of civil law which is followed with interest by people who work in the circles of legislation and legal precedent and academy. It gives a great impact on traditional contract law even on law of debt. Besides, it has a further effect on every country's legislation and the legal precedent. Although countries belonging to the group which ins isted on the law of continent have different opinions on the theory of responsibility for fault of concluding a treaty, they gradually accept it in the legislation andcase-law while countries in the law of Britain and America apply it in various degree in case-law.What is the responsibility for fault or concluding a treaty? There are many answers in academic circles, but it is usually considered that the contractor of one side who violates the obligation legalized on purpose or negligently and causes his partaker's to lose his property will shoulder the civil responsibility according to law. The four necessary requirements in component of responsibility for fault of concluding a treaty are as follow: 1)The party of concluding a treaty breaks the previous contract obligation. So called previous contract obligation refers to a kind of obligation that is attached to contract which both sides of concluding a treaty should bear the duties according to law and keep one's word mutually before the contract takes effect 2)People concluding a treaty have got losses, losses in concluding a treaty is the lose of trust interests. Trust interests losses is like that: because of one side's false action in concluding a treaty which makes contract invalid or untenable and all kinds of fees and other losses can't be compensated of fault in concluding a treaty can take place in the course of concluding a treaty or after the contract taking effect 3)The side who breaks the previous contract obligation makes mistakes. Mistakes contains deliberation and negligence, it should take place in the course concluding a treaty, that is to say, from the beginning of concluding a treaty major items take effect to the time when the contracttake effect 4)There is the legal causality between fault and damages.What's the theoretical foundation of the responsibility for fault in concluding a treaty? There are different viewpoints in academic circles. The four main theories are the tort theory, the theory of legal act, the theory of legal provisions and the theory of honest and credit. The auther thinks that the first three theories have some theoretical defects or difficulties in justifying themselves and all of them can't be the theoretical foundation of the theory. Only honest and credit pr inciple as "Emperor's clause" in civil law can be the scientific and theoretical foundation of responsibility for fault of concluding a treaty.In regard to compensation scope of responsibility for fault of concluding a treaty, someone believes that it sho uld base on trust interest, while some people think that it should base on fulfillment interests and others considers that. It should base on real losses. The auter thinks that no matter in theory and in practice, or in view of pro...