Study On The Relation Of Breach Of Collateral Obligation And Dissolution Of Contract

Collateral obligation grows out of case law. Collateral obligation is of great significance for comprehensive protecting performance profit and original profit of parties. However, there also exist many unsolved problems in the scope of collateral obligation. The dissertation will analyze and study problems which would impact judicial practice namely the defining of collateral obligation, whether breach of collateral obligation can lead to dissolution of contract or not, theoretical investigation and empirical study on previous problem. The dissertation is split into three chapters.Chapter one is about collateral obligation and its basic theory. The dissertation will list definitions determined by scholars and define collateral obligation preliminary on the basis of analyzing definitions listed above firstly. Then the dissertation will summarize the characters of collateral obligation. Secondly, the foundation of legal theory, value and function of collateral obligation will be discussed in the dissertation. Besides, collateral obligation involved in the dissertation is limited to the phase of performing contracts in consideration of object of study. Chapter two refers to comparative study on collateral obligation and dissolution of contract. The dissertation adopts comparative study method and chooses nations and areas (including France, Germany, Japan and Taiwan of China) which are representative in two families of law and important international conventions (containing United Nations Convention on Contracts of International Sales of Goods and Principles of International Commercial Contracts) as objects of study. Preliminary summary to this chapter is made based on elaborating and analyzing related law and theory of objects. The content of preliminary summary is that breach of collateral obligation cannot lead to dissolute contract in principle and dissolution of contract should be associated with extent of damage caused by breaching of collateral obligation. If legal consequence of breaching collateral obligation is fundamental breach, another party of contract could claim dissolution of contract.Chapter three relates to theoretical investigation and empirical study of dissolution of contract caused by breach of collateral obligation. Even though chapter two drew a conclusion, the feasibility of it in practice still needs further discussion. This chapter will start from the aspects of justiciability of collateral obligation, applicable contract type, conditions, the method of the contract dissolution, effect of the contract dissolution to discuss this problem. Accordingly, the dissertation comes to conclusions as follows: it is not right to deny justiciability of collateral obligation entirely; applicable contract dissolution is bilateral contract; three conditions should be satisfied for dissolution of contract; the right of dissolution of contract should be exercised in the method of declaration of intention; contract would not be terminated after exercising of the right of dissolution and it causes emergency of new obligation of restitution. What's more, the dissertation makes an empirical study on case occurring in legal practice in order to research those problems deeply.Chapter two and chapter three are the most important sections among three chapters written above. The dissertation is a mere pilot study in hopes that more mature viewpoints can be put forward by scholars and they can supply theoretic foundation for legal practice.