My Opinion On Delay In Performance

Delay in performance, also called delay of contract debtor, was originated from Roman law. The system of delay in Roman law contained delay of debtor and delay of creditor. The rules of delay of debtor include but not limited to liability fixation, interpellation, continuity of debt. Those rules had a significant impact on German Civil Code. The Code inherited delay in performance of Roman law and created further systematic rules. Other civil law countries like France, Japan, Taiwan area in our country, also inherited this system and have a clearly defined in the legislation. Though the research on traditional civil law theory of delay in performance, on the hand, it helps author accumulate professional knowledge and improve academic attainment competence; on the other hand, our country have no civil code, there are no systematic provisions on delay in performance in The General Civil Law and Contract Law, scholars also have different opinions, therefore, it is important to research how to build this system when formulate civil code in the further.The paper consists three components, the first component is “outline of delay in performance”. This part, the author introduces the origination and development of delay in performance, and discusses the definition of performance. Some scholars think that performance refers to behavior, but the others think it refers to legal effect. The author defines the performance in delay contains all the two aspects. In short, if the legal effect fails to realization before the maturity of the debts, it incurs delay in performance, but the debtor bear the responsibility only when delay in performance can be attributable he.The second part of the essay the author discusses the constitutive requirements of delay of performance. Whether a debtor should bear delay responsibility, the first step is to define whether the behaviors meet the elements of delay of performance. According to traditional theory of civil law, the constitutive requirements of delay of performance contain five aspects: existence of effective debt relations, possibility of performance, maturity, creditor’s interpellation, liability fixation. But the concrete system must be researched in our country. Such as, time definition of possibility in performance. The debtor don’t perform its obligation prior to the expiration of the period of performance, it is impossibility of performance or delay in performance. If the performance becomes impossible in delayed period, the delayed state is terminated or not. Many civil law counties provide that creditor’s interpellation is one of constitutive requirements of delay in performance, in view of our country has no express provision about this, Whether the judicial practice shall adopt this rule, and the assignment of rights how to influence the identification delay in performance, the author will discuss all above questions.The last part is “legal effect of delay in performance”, the author will discuss five mainly legal effects: the right to ask for performance, compensation for damages and interest caused by delay, strict responsibility in delay duration, alternative compensation for damages and contract termination. The author firstly analyzes the stipulations in Germany and Taiwan law, then analyzes our country stipulations and compares these with German law, the author gives some advice on application of each legal effect. In real life, the parties will agree upon breach of contract damages accrued daily in respect to the delay in performance, when the statute of limitations shall be computed from is controversial, the author will analysis and give some suggestions.