On The Contractor’s Incomplete Performance

Incomplete performance is the third breach of the contract law; it appears after the impossibility of performance and delay in performance. Legal practitioners found the early two have been unable to meet the needs of the community. And its theory gradually has been enriched in the subsequent theoretical research and trial practice. The regulation of incomplete performance has first been built in Germany. It has been called "positiv Forderungverletzung" in Germany Civil Code. After that there are the large revision of Germany Civil Code in the21st century, the regulation of contract breaching has been unified due to the technical upgrading of legislation, and the independence of the incomplete performance seems to be concealed. However, it does not affect the value of its independent research. And the enthusiasm of scholars never died down. China’s research on the incomplete performance started later and it has been called injuring pacare. In the early stage of research scholars had been basically started from the general provisions of contract law. Rarely do the research under named contract or within a real trial. The truth is that incomplete performance is different in diverse named contract, and every named contract has its own particularity. In addition, adjusting the relationship between the contract parties only from the General part of Contract law is not enough. This article chooses the contract for work to study because this contract is typical of the service contract. At present various types of service contract emerge in a large amount, with a large number of cases for incomplete performance. The particularity of the service contract itself also makes incomplete performance have new study value. And the contract for work as a typical service contract also has some features that the traditional sales contracts have. Incomplete performance in Contracts for work is divided into two parts:One is the contractor’s incomplete performance; the other is the ordering party’s incomplete performance. The ordering party’s incomplete performance has not been introduced alone, because it only exists in a few specific cases. About the contractor’s incomplete performance, divided into several parts to introduce:One is the contractor’s performance violate the contract obligation. Contract obligations include the main obligation and collateral obligation. When the contractor breaches the main obligation the work product he delivered is defective. When the contractor’s incomplete performance breached the collateral obligation is mainly refers to the protection obligations of the collateral obligation. In other countries and areas’legislation, there are few legal provisions to train protection obligations. Take it as the meaning of the principle of good faith in the contract law. The contractor’s protection obligation is during his performance he has to protect the ordering party’s inherent property and personal rights not be damaged by his performance. Two is the contractor’s performance may damage the ordering party’s interest and damage the ordering party’s perfectibility interest. Because the contractor doesn’t fully perform the obligation of the contract law and on the other hand he also violates the obligation of the tort law, he can take the responsibility for the breach of contract law or tort law. Only exist one illegal act, how is the relationship between the two responsibilities. There are three doctrines about the coincidence of the two responsibilities. In order to solve the problem that the injured party can’t get full-compensation, some scholars came up with the polymerization theory. But it’s the challenge to the Non Bis in Idem principle.