Injurious Fulfillment And Its Remedies

The injurious Fulfillment theory originated from Begleitsschaden of German law, and after development in civil law jurisdictions, evolved respectively into "incomplete fulfillment" in Taiwan and injurious fulfillment in mainland China. According to theories of mainland China civil law scholars and relevant legal provisions, injurious fulfillment is a form of inappropriate performance of contractual obligation, and because the protection of inherent interests falls within the scope of the law of tort, it becomes an issue overriding both contract and tort. Section 122 of the country's 1999 Contract Law formally codified injurious fulfillment and overlapping liabilities, and scattered provisions are also found in other civil legislations. These provisions, however, are sporadic and roughly made, lacking completeness and clear insistency, thus inadequate to protect the right of the creditor.The author employs the historical and comparative methods, analyzes the origin and development of injurious fulfillment, concludes that in our legal system there is no well-defined concept and elements of injurious fulfillment, and the issue of remedy remains a much controversial one. The author defines injurious fulfillment as such: in a case of contractual obligation, the obligator's performance deviates from the genuine intent of the obligation, thus injuring the creditor's interest in the performance as well as its inherent interest. The author also discusses elements, categories of and liabilities for injurious fulfillment, reaches a conclusion in respect of remedies as follows: First, any remedy shall be based on actual damage, and any damages is always accompanied by certain remedy. Injurious fulfillment needs to be categorized as those injuring only inherent interest and those injuring both performance and inherent interest. The latter category involves not only overlapping of liabilities but also accumulation of liabilities where different interests are injured; if the inherent interest is claimed on the ground of tort, it shall also be claimed on the basis of breach of contract, but these two claims shall be brought in a single action to avoid "repetitive justice over one issue" and waste of judicial resources. Second, with the social advancement, a breakthrough shall be made to traditional civil law theories, and in the view of sufficient and thorough protection for the creditor, it is logical to keep pace with the trend of inter-penetration of tortial and contractual obligations and to award contractual remedies for intangible damages in the course of certain types of contract.