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The Study On Unilaterally Contract Rescission Of The Lessee From A Legal Perspective

Posted on:2017-01-24Degree:MasterType:Thesis
Country:ChinaCandidate:P P GuoFull Text:PDF
GTID:2296330482493881Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
A great proportion of civil cases are caused by the dispution of house-leasing contract, some hard cases have shown a great challenge to the trial. The leasing contract disputes between the Shuanglong Corporation and CMBC is a typical case. Based on a large amount study of the case and the trial process, my essay is focus on the following aspects: as the breaching party, does the lessee have the right to rescind the contract; is it proper to require the breaching party to perform the contract; how to break the deadlock caused by not having the right to rescind the contract; and how to decide the legal compensation in the case.According to the article 93 and 94 of Contract Law and the special article of the he right of rescinding the contract, the breaching party of the lease contract can’t rescind the contract. Although the breaching party dispatch a termination notice to the observant party based on the article 96, the action still non-compliance with the article 93 and 94 of the Contract Law, which result in the contract rescission behavior ineffectively. The case in my essay, the termination notice not lead the leasing contract to an effective situation. Under the circumstance that the contract still work, should the breaching party be enforced performance the contract to offer a maximum protcetion for the observant party? The answer is definitely negative. Performance is in accord with principle of honesty and credibility of the Contract Law, in favor of achieveing the purpose of the contract and making up for the insufficient of claiming damages, but it is not suitable for all cases. There are 3 situations not proper to enforced performance in article 110 of the Contract Law: can not perform legally or do not have the realistic condition, the debt is not suit to enforced or performance has a high cost, creditor not requre the debtor to perform within a reasonable period. The observant party not requre the breaching party to perform in this essay, and the enforced performance is not suitable for the leasing contract, at the same time the lesse have moved out of the renting space, enforced performance is not work in this case. The breaching party do not have the right to rescind the contract, and specific performance does not work in this case, which result in a deadlock that the house is vacancy for a long time. In order to reduce the deadlock, my opinion is to entitle the breaching party the right to rescind lease contract on condition that not rescind will cause the loss of efficiency and the breaching party giving the observant party full compensation, and depending on the efficiency principle to remedy the legal loophole. Regardless of having the right to rescind the contract or terminating the contract, they all will lead to a damage compensation problem. After study the basic conception of the rule of mitigation of damage, my opinion is that the 3.3 million RMB rental is not the loss of Shuanglong Corporation, but the cost of negotiation, this 3.3 million is convert into the price of the next contract. By compensating the performing benefit on next contract, the loss of Shuanglong Corporation is compensated, and not taking the 3.3 million as recompensation for the direct loss. The perform time of mitigation rule have a different definition between the two trials, my opinion is based on the influence of decoration, if the decoration have the possibility to damage the safety of the rent-house’s main structure, mitigation rule become effective since the evaluation accomplished and repristinated, mitigation rule is not valid before the house repristinated.
Keywords/Search Tags:Leasing Contract, Unilaterally Contract Rescission, Right to Rescind, Specific Performance, Damage Compensation
PDF Full Text Request
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