On The Contract Of Incidentally Protecting Third-part

Originally, contract only generates right-obligation relationships between two parties, which are the only legal persons who can obtain relieves when the contract cannot be performed. The third party outside the contract can only seek protection by resorting to the tort law. This results to a significant difference between the relieves of the third party and the contract parties. Therefore, the exploration of protecting the third party more effectively has attracted the attention and recognition of scholars in many countries. The "the Contract of Incidentally Protecting Third-part" developed in Germany has been a precedent exploration of protecting the profit of the third party. According to the institution, if the third party has a close relationship with the creditors, and experiences the same debtor payment risk with the creditors which can be anticipated by the debtor, then, the debtors should owe the same obligation to the third party as they owe to the creditors. Once any harm is caused by offending the obligation, the debtors shall assume the responsibility according to the contract law.The "the Contract of Incidentally Protecting Third-part" is based on the principle of good faith. It expands the accompany obligations of the debtor to the third party, which means the contract between the debtor and the creditor shall also protect the third party. Thus, when the third party is harmed by the debtor's payment but could not get relief by resorting to the tort law, he/she can make a compensation plea according to the institution and the contract law. This study intends to analyze the origin and developing process of "the Contract of Incidentally Protecting Third-part" in Germany separately, and bring up some beneficial implications from the conjoint analysis of the theories and practices of law in China.During the "introduction", the analysis of some classic cases in China reflects that the third party cannot get protection from the tort law nor the contract law when the contract is damaged. This brings out the meaning of the study.The first part of the content introduces the history evolution of "the Contract of Incidentally Protecting Third-part". It contains mainly the history background and institution origin of "the Contract of Incidentally Protecting Third-part". People didn't adhere to the absolute contract freedom idea of the classic contract society in the 20th century and many exceptional rules were developed which broke the relativity of contract. Besides, the contract responsibility can be resulted not only from the violation of the payment obligation but also from the violation of the accompany obligations, which represents the expansion of contract responsibility. The institution of "the Contract of Incidentally Protecting Third-part" emerged in this context. It attaches the regard and protection obligations to the debtor. Contract responsibility shall be assumed when this obligation is disobeyed.The second part is the theoretical analysis of "the Contract of Incidentally Protecting Third-part". After a summary of the basic theories of "the Contract of Incidentally Protecting Third-part", it is concluded that the principle of good faith is the basic theory. A further analysis and criticise of the theoretical obstacles of its existence proves its theoretical feasibility.The third part is the institutional analysis of "the Contract of Incidentally Protecting Third-part", which mainly contains the analysis of its basic components and legal validity. It is elaborated along the developing process of "the Contract of Incidentally Protecting Third-part" in Germany Law. Since it is developed from precedent theory, we illustrate many classic cases to reflect the full image of this institution.The fourth part is the legislation implications of "the Contract of Incidentally Protecting Third-part". The arguments of legislation among scholars is analyzed and reviewed and the summary of present legislation in China suggests that the situation in China is suitable for this institution to exist. Then, by pointing out the legislation drawbacks and judicature constraints in present China, it is suggested that the right of getting relief should be bestowed on the third party by drawing lessons from the "the Contract of Incidentally Protecting Third-part" of Germany.