Research On The Conventional Obligation And Termination Of Contract

The validity of contract between the parties is the equal of legal. While maintaining the normal order, the conclusion of contract standardizes the process of commodity exchange. In order to encourage the exchange of commodity and trade against a stable order of business, almost every contract law in the world prohibits the arbitrary alteration and termination. However it is necessary to confer the rights to dissolve the contractual relationship under the circumstance where the parties have been unable to continue to perform the contract or where the purpose of the contract cannot be achieved in the predicament, so that the parties are allowed to get rid of the contract bound which may lead to non-interest. As a final remedy for the parties, the conditions to exercising the rescission right of contract are no doubt harsh.The conventional obligation is among obligation community. Owing to the auxiliary role played in the realization of the main payment obligation, the theory and practice circles generally believe that the violation of conventional obligation cannot lead to the termination of the contract. However the complexity of modern life may lead to the opposite result in some cases that the one party’s violation of conventional obligation brings about the loss of expectation interests of the other party. Base on all above, the focus of this paper is whether and what type conventional obligation can cause the termination in the contract.The first part of this paper defines the meaning of the conventional obligation, and points out the difference from the main obligation and collateral obligation. Then the paper spreads out the illustration by one case which is about the appeal for the termination of the contract in violation of conventional obligation, to reflect the present situation of relevant judicial practice. At the same time, the paper clears up China’s provisions in existing laws and regulations and the views of scholars, all of which will lay the foundation for the following discussions.The second part teases the civil law provisions in different countries on the conditions of contractual rescission. First of all, the paper makes a comparative research on provisions of the U.K, the U.S.A, Germany and CISG. Then the paper turns to domestic regulations and sets focus on the conditions of rescission in Chinese law. On the basis of the interpretation principle of “objectivism together with subjectivism”, the paper tries to explains "the contract purpose”, and then concludes the statuary circumstances in which the contract can be terminated in violation of conventional obligationIn the third part, according to the different ways in which the conventional obligation assists the realization of main payment obligation, the paper makes out the classification. Based on the classification, through some typical cases in judicial practice, the paper produces the point of view about whether and in what occasion the party will be entitled to terminate the contract in violation of conventional obligation.