Reflection On Contributory Negligence In Breach Of Contract Damages

The interpretation of the supreme People’s Court on issues concerning the application of law for the trial of cases of disputes over sales contract seems to set the rule of contributory negligence clearly. But in fact contributory negligence ought to get more recognition and application in the field of tort liability. Extensive discussion in legal circle of China results from this. Based on the comparative analysis of foreign-related legislation, combined with the doctrine of the domestic and foreign scholars and the latest judicial cases, this paper aim to prove that there is no need to set the rule above in the field of liability for breach of contract.The first and second parts are intended to propose the question. The introduction has pioneered to point out the application of contributory negligence in the judicial practice and the controversy. The second chapter briefly discusses the legal basis of contributory negligence and the legislative mode of different legal system countries, meanwhile introducing domestic legislative choice and current judicial practice, focused on the basics and to pave the way for the following.The third part and fourth part of the main body analyzes the problem. Firstly, the viewpoints about the argument are summed up and discussed in brief. Then, the fourth part is about the reflection on necessity of that rule in present Chinese contract law, which can be divided into three steps, reviewing the connections and differences between the principle of attribution, foreseeability rule, mitigation rule and contributory negligence. And then three conclusions are drawing. Firstly, whether the imputation principle adopts the strict liability or not will make no difference to the application of contributory negligence. Secondly, the judgement about the possibility of creditor’s fault makes contributory negligence is contained in foreseeability rule. Thirdly, mitigation rule has distinctive existence value because of its specific legal principles basis and legal nature.After a negative conclusion has been drawed theoretically, the fifth chapter focuses on solving the question, by reviewing the related legislation in our country and restructuring the thinking for the verdict of typical cases, in order to criticize the phenomenon that the judicial authority is wiling to fill up legislative gaps instead of systemic investigation.