Glimpse Of Breach Of Contract And Tort Liability Competing

It has long been recognized that liability can occur concurrently in both tort and contract.Various scholars from all over the world, including from China, mooted their theories andsuggestions and the judicial practices in various countries vacillate among differentsuggestions and are contradictory with each other. In analyzing the historical origin andobserving from the point of view of social development, this article dissects the currentavailable representative theories and judicial practices on the issue of concurrent liabilitiesin both tort and contract and discloses the nature. The author puts forward his opinion onthis issue on the basis of analysis, evaluation and absorption of the predecessors' researchfindings. Specifically, the thesis consists of the following chapters:The first chapter starts with the introduction of definition and features of liabilityconcurrence, and then emphasizes the difference between liability concurrence andliability aggregation, legal norm conflicts and regulation concurrence, and finally simplyintroduces the definition and conditions of liability concurrence in both tort and contract.In Chapter Two, the author firstly points out the necessity of the divorce betweenliabilities for breach of contract and liability for tort, puts forward that the divorce is anobjective phenomenon via the discussion of various differences between liabilities for 1breach of contract and liability for tort, presents that it is an unavoidable result of socialdevelopment, analyzes the specific reasons for concurrence, and then concludes that theappearance and development of collateral liability of contract increases the possibility ofliability concurrence in both tort and contract.The Chapter Three mainly focuses on the introduction and analysis of the major theoriesand judicial practices all over the world about the issue of liability concurrence in bothtort and contract, such as the doctrine of article concurrence, claim concurrence and claimnorm concurrence, modes of allowed concurrence, forbidden concurrence and claimchoice, and others.The Chapter Four firstly presents a simple introduction of views and opinions of Chinesescholars on the issue of liability concurrence in both tort and contract, and then focusesthe development of the issue in China's civil law and finally points out that although thestipulation of China's new Contract Law reveals a kind of historical progress, the victimsometimes will not be able to get a full compensation under certain circumstances.In Chapter Five, the final chapter, the author concludes that, the obligee can choose theright of claim most favorable to him under general circumstances, or choose both of theclaims available to him under certain special circumstances; if the right of claims aretransferred, the inflicter shall demur with the existed right to claim indemnity, no matterwho lodge a complaint, either the transferor or the transferee; when the law has a specialprovision or the parties achieves a fairly special agreement within the limit of law, thespecial provision or agreement shall be obeyed. 2...