Theory Of Contract Conclusion Negligence

Contract liability for fault results from the trade suing right system of the Roman law. Yeran, a German jurist, made systematic, comprehensive and deep analysis about it and made the system more complete. Contract liability for fault means the civil compensation liability when one party of the contract violates the credit principle. As a compensation for liabilities for tort and violating a treaty, liability for fault's premise is the violation of the obligation of the contract. The compensation scope limits to the loss of the aggrieved party. The compensation for loss is the main liability type. The purpose of setting up liability for fault is to remedy the defect of the contract liabilities before the adjustment of the contract law, to protect the interests of the contract parties, to secure the trading, to uphold the principle of honesty and to keep the market in order. This article analyzes the liability for fault in four parts. In the first part the author introduced the concept, emergence and development of the liabilities for fault. Liability for fault is that in the contract one party violates the contract obligations intentionally and makes the contract untenable. Based on the regulation and principle of honesty, the civil compensation liability should be borne. The foundation of the liability for fault is the need for interest protection, showing the principle that when there is loss there is compensation. The liability for fault emerged for the purpose of protecting trade safety. In the second part the author discussed the theoretic base of the liability for fault. When the liability for fault emerged, the theoretic base was the tort behavior and law behavior. Tort behavior demanded more for proofs and was not good for trust interests. Law behavior relied on inexistence of contract and was different from the traditional theories. After distinguish and compare of the two liabilities, the author thought that the theoretic foundation of liability for fault should be direct regulation. When there is no regulation, principle of honesty works as the theoretic base of the liability for fault. In the third part the author analyzed the construct of liability for fault. The liability for fault emerged in the process of the contracting and existed during the contract sending and going into effect. Before sending the two parties have no reasonable trust relationship. After the effective date the trust interest turns into contract interest. It needs liability for fault to adjust and protect. The precontract obligation exists in the process of contract and bears the obligation of telling, help, care, secure and protecting. The existence of loss is the base and premise. The loss includes direct loss, which includes contract fee, engagement fee, etc. and indirect loss, which includes losing the opportunity to sign contract with the third party. Violating the precontract obligation has the cause and effect relationship with the loss of trust interest. The so called cause and effect refers to connection between the violations of one party with the loss of the other party. The one who violates obligations has subjective error which includes intentionality and fault. Intentionality includes direct and indirect. Fault includes carelessness and overconfidence.In the fourth part the author establish the compensation principle for liability for fault. There are many methods of bearing civil responsibilities. Liability for fault is the loss of trust interest due to one party in the contracting stage. The loss only refers to property loss. Paying for the property loss is the only way of bearing liability for fault. The scope of compensation should not expand and should limit to contract fee and engagement fee. Liability for fault placed an important role in theory study and judicial practice after more than one hundred year's development. It remedies the defect before the adjustment of contract law and credit law, uphold the justice of civil law and uphold the social morality and trade safety. The legislation of liability for fault is represented by Germany and Greece. In Germany it is regulated for certain conditions and in Greece it is regarded as a common principle. Chinese liability for fault is the same to that in Germany. The forty second and forty third clauses in Chinese contract law regulate the certain conditions for liability for fault. The system of liability for fault was formally established, but in content it is abstract and complete. In some aspects the law lacks definite regulations. This makes it inconvenient for legal application. In order to adjust to marketing economy and uphold good trading order, we should perfect the relevant regulations, make authoritative legal explanation and protect the market trading to develop much better.