On The Collateral Obligation Of The Contract

It can be found that there are disputes failed to reach a unified understanding on this issue by analyzing existing cases about contractual collateral obligation. The current laws are relatively abstract, and theoretical study is not mature, which can not provide a legislative basis and theoretical support for the judicial practice. This is the main reason. Thus, Initiating targeted research on contractual collateral obligation by focusing on the problems that exist in reality so that it can not only improve the theoretical system of contractual collateral obligation but also guide the judicial practice, which has very important practical value and theoretical significance.Contractual collateral obligation is experienced the course that it has guide on precedent and academic, then be put into statute in Continental legal system. There is no concept of contractual collateral obligation in common legal system because of the differences about legal traditions and the development tracks between continental legal system and common legal system. Based on good faith principle, giving the comparative analysis between contractual collateral obligation of continental legal system and implied term of common legal system, conclusion can be drawn: they have similar functions. Good faith principle can balance the interests of contractual parties and the interests of contractual parties and society, contractual collateral obligation is to achieve this goal. It can help perform delivery obligations,achieving the contractual maximum interests, protecting personal and property interests of the other party. Contractual collateral obligation was derived from good faith principle. Without good faith, it can not develop step by step. Good faith principle is the valuable basis of contractual collateral obligation, fairness and justice are its ultimate goals. By rationally analyzing many concepts about contractual collateral obligation offered by scholars, contractual collateral obligation should be broadly understood, and be re-defined as the duty, under the contract developments, which the parties should undertake, according to the good faith principle, to successfully realize the interest of the contract and protect rights of the other party, in addition to the delivery obligation. Contractual collateral obligation is different from major delivery obligation, subordinate delivery obligation, unreal obligation and other contractual obligations. It is also not the same as operator's security obligation. In judicial practice, identifying contractual collateral obligation accurately must pay attention to"degree", it can not expand the scope of contractual collateral obligation, or arbitrarily narrow the existing space of contractual collateral obligation. When using discretion right, judges should follow four criteria: necessity, affinity, rationality, efficiency. Contractual obligation is an"obligation net", including delivery obligation, contractual collateral obligation, unreal obligation and so on. Contractual responsibility, which is formed on the basis of contractual obligation, includes responsibility for breach, responsibility for fault in negotiation, post-contract responsibility. Breaching contractual collateral obligation of different development stage will have three kinds of responsibilities: responsibility for fault in negotiation, responsibility for breach, post-contract responsibility. When breaching contractual collateral obligation results concurrence of responsibility for breach and responsibility for tort, the suffering party can choose claim right. The principle of imputation should be fault principle, in some particular circumstances, legal technology of presumption of fault need to be used. To achieve rational relief,the suffering party can claim for continuance of performance, compensation, coincident performance counterplea as well as discharge of contract.