Study On The Theory Of Contractual Incidental Obligation

In traditional theory of contract law, the creation of contractual obligation is according to regulation by law and engagement by the parties, except which there is no any obligation or liability between the parties. Since 19 century, with the establishment of good faith, the expansion of obligation has been a trend in the development of contract law. People has begun to realizing the existence of the contractual incidental obligation. Then, the theory of incidental obligation of contract origin , preliminarily develop and even is received by litigation of some countries. Today , contractual incidental obligation has become an important legal mechanism in continental legal system. Our country refers to foreign theory and judicial case, prescribe it in the fourth chapter of the contract law: "The people should follow the good faith and perform the informing duty, helping duty, keeping duty and so on according to the quality, purpose and custom of contract." These duties are called incidental obligation of contract by professionals. Though ''ncidental obligation has been stipulate in statute, the theory of incidental obligation haven't formed an intact system. My thesis adopts historical and comparative analyzing methods and further discusses the incidental obligation, so as to be able to perfect the legislation of our country and guide the judicial practices.Four parts are included in it except preface and conclusion. The first part introduce the origin of incidental obligation and regulation about incidental obligation of other counties; the second part discuss the basic theories of incidental obligation, such as concept, feature, value, function and classification. Several conceptions are compared with the incidental obligation of the contract, such as pre-contractual duty, post-contractual duty, delivery duty and so on. The third part expounds the character, principle of imp itation, constitution requirements and legal results about the civil liability of breaching the contractual incidental obligation.