On Compensation For Mental Distress In Breach Of Contract

Default compensation for mental damage is a remedy for breach of the contract that the aggrieved party who has suffered severe mental damage caused by default has the right to bring an action ,petitioning for compensation for spiritual damage. Traditional civil law theories generally think on the indemnity problem that the compensation for mental distress only be available in the realm of tort law, especially when personal right is infringed. The liability for breach of contract is property liability. The compensation for mental distress is not available in case of breaching contract. When either party fails to perform its obligations under the contract or does not perform its obligations as contracted and thus causes mental distress to the other party, according to theory of coincidental liability, the other party could choose to claim the tortious right in order to acquire the relief of the mental distress.This article attempt to challenge the reasonability of the Traditional civil law theories, considering this opinion inadequate ,mental distress should fall under the responsibility of breaching of the contract. Default compensation for mental distress is recognized in a certain extend by laws of the case law system ,the civil law system and international unified legal documents. In addition there are no reasonable reasons to negate the compensation for breaching of contract .It not only the necessary of the legal practice, but also has the justicial legal theory. Basing on theoretical analyses, foreign experiences and China's actual conditions, the author considers that we should take the model of"general permission"and confirm some restrictive principle at the same time in order to supply with legal basis.The dissertation consists of five parts apart from preface and epilogue.The first part introduces the basic concept, character and function of the mental damage and mental damage of breaching of contract.The second part introduces legislative actuality and judicatory practice in China, and reviews the provisions in the Civil law system and the case law system. From it we can see it is inadequate to remedy the non-defaulting party by theory of coincidental liability. There are some different practice when the judge deal with the mental damage causing by breaching the contract. In this case,the judge face to the embrassment of the rationality or validity. In all the world ,many countries recognize the compensation of mental damage . It provides the reference for us to demonstate this regime.The third party analyses the legitimate reason of the compensation for mental distress of breaching the contract. The negative opinions has some limitation .There are not only theorial basis and the pratical necessary recognizing the compensation of mental damage under the liability of breaching the contract, but olso remedy the limitation of the actual law.The fourth part trys to make system construction of default compensation for mental damage. We should take the model"general permission",at the same time confirm some restrictive principle in order to supply with legal basis.