Construction Of Compensation For Moral Damage In Breach Of Contract

The foreword introduces the legislation about the compensation for moral damage in breach of contract in other countries. Whether to compensate for moral damage caused by breach of contract is a question quarreled by jurisprudential circle for more than a hundred years. With the development of commodity exchange activities, the reliance on each party and the property characteristic of civil subjects'spiritual interests have been increasing gradually, so it's the trend to embrace the compensation for moral damage into the category of contractual liability. Although countries have different legal rules, all provide the compensation for mental distress caused by breach of contract in certain circumstances. The judgment of Jarvis v. Swan Tours Ltd(1973,UK) shaked the doctrine that no compensation for moral damage caused by breach of contract. Amending the related provisions of Restatement of Contracts, Restatement 2nd of Contracts,§353(1981,US) pointed that"Compensation for emotional disturbance will be supported unless the breach also causes bodily harm or the contract or the breach is of such a kind that serious emotional disturbance is a particularly likely result". Germany giave remedy for mental distress caused by breach of contract through the theory ------Commercialization of Non-propertied Damage which originated from the case Travel On Sea(1956). Germany added the chapter of Contract of Tourism to acknowledge the compensation for moral damage caused by breach of contract when amending Civil Law in 1979, and made further confirmation in the amendments of Civil Law which became effective in June 2002. France does not make special provisions on mental distress. In fact, law provisions don't distinguish between tort liability and contract liability. Therefore, compensation for mental distress could be asked as long as mental distress happened, no matter caused by tort or breach of contract. The Principle of International Commercial Contract and its explanation completed by International Institute for the Unification of Private Law in 1994 also provides that non-money injury may be compensated. Our legislation haven't established the system of compensation for mental distress caused by breach of contract. However, such cases have appeared in judicial practice.So, there is a necessity to build the system of compensation for mental distress caused by breach of contract. Through research on cases of countries and the meaning of compensation for moral damage in several instances, the first part concludes the contracts under which the parties can get compensation for mental distress caused by breach of contract to some types:i. Contracts aim to provide happiness,peace and enjoyment(e.g. Contract of Tourism,Wedding Service Contract);ii. Contracts aim to provide convenience(e.g. Employee Contract,Authorization Contract,Passengers Conveyance Contract);iii. Contracts aim to relieve sadness and annoyance(also include some Employee Contracts,Authorization Contracts and so on);iv. Subject matter of contract has significant emotional value-laden(e.g. Contract of Deposit,Processing and Undertaking Contract);v. Contracts have great effect on life and development of vocation(e.g.Training Contract).The second part orals the doctrine of liability fixation of compensation for mental distress and the constructive conditions. The doctrine of liability fixation of compensation for mental damage caused by breach of contract takes the principle of strict liability, namely it is not necessary to consider the defaulting party's fault when ascertain his or her responsibilities. It must accord with the three constructive conditions below when ascertain the liability for mental distress: First, the defaulting party did the behavior of breach of contract (includes practical breach and anticipatory breach), which is the prerequisite to liability fixation. Anticipatory breach may also cause compensation for mental distress, but the sum of compensation should be reduced comparing with practical breach based on the concrete condition. Second, damage fact is a necessary condition for liability fixation. As a constructive condition of compensation system for mental distress caused by breach of contract.,damage fact is that one party is subject to mental distress because of the other party's breach of contract, including both attainable interests loss and existing interests loss. In addition, compensation won't be paid unless mental distress reaches a certain degree. Third, mental distress must be caused by one party's breach of contract, which is the objective foundation of liability fixation. Consideration on causality should take the theory of equivalent causality. The judges don't need to pursue so-called objective,essential,necessary connection, they only have to ascertain that there is possibility between causal facts and harmful consequences under usual circumstance.The third part orals how to determine the account of compensation. Determining the account of compensation for mental distress should be limited by the rule of foresee ability,the rule of detraction and contributory rule. Because it is no different in the spiritual sufferings of breach and tort, and the moral damages in the liability of breach of contract and tort liability are same (they are all invisible,subjective,non-property),and both tort and contract are causes of debt, so determining the account of compensation for mental distress in area of liability of breach of contract may refer to or apply the method of determining the account of compensation for mental distress in area of tort liability. At home and abroad, calculation methods of compensation for mental distress include Budgetary Estimate Method,Ceiling Calculation Method,Classification Calculation Method and so on. .They all have virtues and defects. Considering the methods of calculating the account of moral damage at home and broad ,this passage adopts Classification Consideration Method. According the types of compensation for moral damage in breach of contract, the judges consider the relevant factors when determine the moral damage account .Judges and educe the Concrete account of compensation .