Comment On Offsetting Benefits

This thesis is mainly aimed at introducing the history und the situation of legislation and jurisdical application in the area of offsetting benefits. At the same time, the constitutivs and concerning cases are to be discussed.The rule of offsetting benefits can trace back to roman law and T’ang Lü and exists both in common law and civil law system nowadays. Rooted in the concept of equity, the prohibition of interest will be regarded as the fundamentals. It is also a result of the hypothesis theory. With more emphasis on the balancing in single case, the ground of judgement is gradually turning from the general clause of adequate causation towards the theory of purpose of norm. Thereupon we have to pay more and more attention to the case-by-case development law about offsetting benefits.Both the chinese contract law, functioning temporarily as general apart of obligation law, and the german cilvil code have no explicit norm about offsetting benefits. Only the legislator in Taiwan has added a new rule in 1999.For the conditions is firstly the claim for compensation to count. Offsetting benefits can be applied to the claim coming from the labor law and property law and so on. Application to the claim for performance is typically rejected. Sometimes the victim without damage will also be compensated as a result of denying offsetting benefits. This is a situation of normative damage. Besides, two points must be made clear: when did the benefit occur does not effect and the benefits obtained by the other can also be offsetted under condition. The congruence betwenn damages and benefits deserves futher research. According to this principle, the benefits should be offsetted in detailed account of damages and the spiritual benefit can not be offsetted.One controversial case ist the benefits caused by the method of compensation. When the benefits remained in the victim are forced, they can not be offsetted, except that the victim has later realized the value. The saved expenses should definitely be offsetted according to the causation. One exception is the expense of luxury. Als a specail form, wether the saved tax should be offsetted is determinated by the purpose of tax exemption. In the case of substituted purchase and selling is the problem a little complicated. When the seller breachs the contract, the benefit earned by the buyer remains. On the other side, difference should be made by buyer’s breach of contract. When the seller is a merchant, his profit of further selling can not be given to the buyer. On the contrary, when the seller has just occasionally selled a thing, and now he sells it to another one and it values more compared to that in the time of performance of first contract, the price beneath the value in the market and above the first price in the brocken contract can be offsetted, while the price above the value in the market goes to the seller because of his special efforts. The evaluation in rent is alike. Nevertheless, by compensation of reliable interest the profit should be offsetted to recover the situation before the signing of a contract,except that the right of compensation has been assigned to a third one, who can just return the selled thing.Although the analysis leads to a different treatment to the legacy, it should not benefit the harmer. The claim of an adopted child against his new adopter can not be offsetted, while a remarried spouse lost his/her claim. When the second marrige break up, the claim recovers. A renunciation in the new marrige will be regarded as contributing negligence. When the victim works beyond incumbency, the payment should not be offsetted. By insurance of property, after receiving the insurance, the claim of the victim should be assigned to the insurer based on the theory of normative damage. And by the insurance of healthy the victim can be twice compensated.The one who should compensate bears the burden of proof. The benefit can be directly offsetted in the form of value. Otherwise the harmer is given the claim for the return of possesion. And the benefit should firstly compensate the victim’s own fault.