Study On Breaching Of Collateral Obligation In The Course Of Implementing A Contract And Responsibilities

The system of collateral obligation contains many researchful issues. Thedissertation should analyze the core of this system namely the concept of collateralobligation, how to judge if it exists or not, form of responsibility and methods oftaking responsibilities. Besides lead-in and conclusion, the dissertation contains fourchapters.Chapter one is the chief introduction of the concept and development of collateralobligation. At first, this chapter enumerates the legislations of many countries andareas, discussing the definition and elements—the principle of honesty and good faith.Furthermore, the range of discussion is restricted within the course of implementing acontract. The collateral obligation should be known from subordinate obligation. Atlast, the collateral obligation is derived from Roman Law and prescribed in theGerman Civil Code.Chapter two discusses the differences between collateral obligation and similarconcepts. Which collateral obligation protects are interests of performing contracts,meanwhile it should avoid causing personal injury and property damages. So it differsfrom attention obligation to the social security in the tort law. Collateral obligationalways comes from legislations, explanations according to the good faith and shouldbe closely related to purpose of the contract, following the standard of a rational person as well as consideration of benefit principle. Then this chapter gives thereasons.Chapter three discusses the form of responsibility if breaching collateralobligation. There are four important documents including damages, the acts whichviolate the collateral obligation, the equivalent causality and fault. The obligor shouldhave fault to take responsibility. If the obligor could not provide evidence of his nofault,he should bear the liabilities so as to mitigate the burden of obligee.Chapter four discusses the methods of taking responsibilities. By reference to thelegislation about a party fails to perform its obligations or its performance fails tosatisfy the terms of the contract, the responsibilities should conclude taking remedialmeasures, to terminate the contract or to compensate for losses. Remedial measuresshould be taken after collateral obligation confirmed. If it is unreasonable to ask theobligee to adhere to the contract, he can terminate the contract. The obligee can alsoask for alternative performance if it is impossible to look forward to the performanceof obligor. But it should be in deep research in our country.Chapter two, chapter three and chapter four are the key parts of this dissertation,because these questions have the very important status in the judicial practice. Becausescholars'opinions are difficult to unify and the legislations are not perfect, so there stillhas space for the discussion. Therefore, the dissertation analyzes the issues aboutcollateral obligation, hoping that scholars will propose more perfect viewpoints andopinions so as to urge our related legislation a breakthrough progress.