On The Non - Pecuniary Damages For Breach

In the past, scholars generally think that non-pecuniary loss is not recoverable in contract as in tort. This article attempts to challenge the reasonability of this opinion. In order to analyze this problem, the article will be divided into several parts as follows:In the First part ,The author describes the possibility of the damages for non-pecuniary loss resulting from breach of contract. As to the answer of this question, the author mainly disposes of it from practice, and draws the conclusion from several cases: the breach of contract could result in the damages for non-pecuniary loss. As to the answer of the necessity of adopting it, the author discusses from the following aspect, such as the goal of compensating for the losses, the protection of the liability for breach of contract which is easier to realize, the expanding trend of protecting interests in contract, valuing the human rights etc. So, it is necessary to admit compensation for non-pecuniary loss resulting from breach of contract.In the second part ,the author compares and analyzes a lot of cases and theories that happened in English law, American law;and introduces the relevant regulations and theories in main continental law countries, international convention, domestic law. From these, we can find that, with the development of economy, a lot of countries try to expand the liability of contract to non-pecuniary loss in order to protect the victim's interests better. For example, in the second revised Germany law of compensation for damages, such a regulation has been created that while encroaching on some most lofty personality benefit, it can be awarded in principle for compensation for mental injury without considering the foundation of responsibility.In the third part, some opposite opinions will be rebutted one by one, which include the problem of proof, foreseeability test, the problem of calculation, the problem of bearing risk, punitive damages, that one of the differences between the liability for breach of contract and liability for tort lies in compensation for non-pecuniary loss, principle of relativity in contract, and giving judge too wide-ranging right,. The primary reason for objecting to compensation for non-pecuniary loss in contract is the difficulty on offering evidence. Since non-pecuniaryloss is invisible, pure and subjective, the objective basis is lacked. The author thinks any evidence should be checked by the judge. Though the mental agony is invisible, it must have external behavior, and it can be inferred by the judge according to the indirect evidence. The next opposed reason is, some people think that damages for mental distress are not awarded because mental distress arising from breach of contract is not within the contemplation of the parties to the ordinary contracts, especially in commercial affairs. The author divides two respects to refute: First of all, foreseeability test is a fact Most of the countries adopt the objective standard of a rational or ordinary person, in spite of the defaulter's subjective state. Second, acknowledging compensation for mental injury doesn't mean the request to be met unrestricted. At the same time the author points out that in some contract non-pecuniary loss can be predicted much easier than the prediction of property loss. The another's opposed reason is that compensation for mental injury, unlike physical injury ,is difficult to assess accurately. This reason is without force. It regards personality itself as appraisal target of mental injury to measure. The fourth opposed reason is the problem of bearing risks, "mental injury is inevitable on the basis, of expectation in contract, so the agent must bear ". The author thinks, this kind of view is contrary to trustworthy principle in civil law. It is very easy to lead to the conclusion breach of contract is inevitable to follow. This is absurd. Somebody argues that admitting compensation for mental injury in contract means punitive damages .The author thinks this kind of view is obscuring the function of compensation for mental injury by mistake. As regards the relation between them, the punitive function is not its basic function, the basic function is compensation. The scholar proposes, one of the differences between the liability for breach of contract and liability for tort lies in compensation for non-pecuniary loss. The author testifies, when human rights protection isn't sufficient to an extent, compensation for mental injury couldn't be supported by tort law either. Tort law and contract law exist independently, and the liability for tort and liability for breach of contract distinguish so long, so the inherent difference should not be regarded between them. The seventh opposed reason is violating the principle of relativity in contract. But to this day, various countries have legislated to acknowledge the relativity's relativity, even in the most conservative Britain. Trust contract, contract of insurance, subrogation of creditor as right ,etc, break through this principle one after another. The author thinks that whetherbreaking the principle of relativity in contract or not is decided by giving another person the right for asking for compensation or not, it does not matter with the request for compensation for property or mental injury. Finally, the scholar considers the judge's standard of theory is not enough at present in China, so it should not give a judge too much wide-ranging right in those cases. The author thinks, the judge should have more free right in the case of tort to determine the amount of compensation, so it is unnecessary.In the fourth part, the author proposes essential measurement factor to consider the compensation for non-pecuniary loss for breach of contract, namely: First, get rid of the slight damage;Second, causality;Third, foreseeable rules;Fourth, mitigate the loss;Fifth, balance the fault. The author thinks the newly civil law code our country makes should accord with the international trend, and admit compensation for non-pecuniary loss in contract.