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On Rule Of Mitigation

Posted on:2007-04-25Degree:MasterType:Thesis
Country:ChinaCandidate:Y Z HeFull Text:PDF
GTID:2166360212456395Subject:Law
Abstract/Summary:PDF Full Text Request
Rule of mitigation is a rule originating from Anglo- American legal system and coming into being via Contract Law, and it is not completely recognized or belongs to contributory negligence in Continental Legal system. In our country, it is written in the chapter of civil liability of running counter to contract ( see No. 114) in General rule of Civil Law and also in the chapter of breaking the contract liability (see No. 119) in the Contract Law. But because there is the rule of contributory negligence ( see No. 131) in General rule of Civil Law, it in fact runs side by side with Rule of mitigation in our existing civil legislation. Rule of mitigation aims at contract, but theoretically it can be applied in tort; while contributory negligence is suitable for breaking the contract liability and can be a general rule in theory, so there emerges the problem of the relationship between Rule of mitigation and contributory negligence. Because our law belongs to the Continental Legal System, we have conducted in-depth research on contributory negligence, but not so much on Rule of mitigation by comparison, meanwhile Rule of mitigation clashes with the right to select in the Law of Contract (see No. 107) if the involved party doesn' t break the contract , furthermore, it is always replaced by contributory negligence in practice which is made lost its value of legislation, but it is always applicable in international trade law, in which there are still some problems to deal with and in which there are opinions differ widely , which indicates its specific characteristics.We examined the clashes between Rule of mitigation and the right to select in our nation' s existing civil and trade law except discussing the theory and actual practices of Rule of mitigation in Anglo-American Law. Besides, we also put forward that Rule of mitigation has priority to the involved party' s remedy patterns for breach of contract through cases analysis if the enforced performance is impossible and unreasonable.
Keywords/Search Tags:Rule of mitigation, Rule of contributory negligence, Right to select of remedies for breach of contract
PDF Full Text Request
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