The Studies On The Issue Of The Application Of Mitigation

The rule of mitigation, an ancient rule of Anglo-American contract law, limits not only the Remedy approach selected by the non-defaulting party but also the amount of damages. Because the content of the rule of mitigation is excessively generalized by our law, the difficulties of law application still exists in trial practice, for instance owing to the large discretion of judges at all levels, there occur different phenomena co-determination.This article discusses the body of mitigation obligation beard and relates the reasonable measures of the rule of mitigation based on the introduction of its concept and character, the criterion of reasonable measures and problems of the rule of mitigation applied in judicial practice. Thus these are expected to offer a useful reference for Chinese judicial practice.This paper is divided into three chapters. In the first paragraph, the author introduces the rule of mitigation from three aspects like its concept, nature and effect. The nature of the rule of mitigation is conclusively analyzed : mainly "Duties" and "no real obligation to say. ” Moreover its effect is analyzed from social and personal perspectives. From social view, the rule of mitigation is beneficial to saving social resource, promoting economic development. However, it is unfavorable to the non-defaulting party, who using the rule of mitigation to obtain extra profit belongs to default party according to the law provision.In the second paragraph, the structure of the rule of mitigation was analyzed from three angles by the author. First of all, the person who should bear mitigation obligation was discussed. There are two opinions about the person. One is that non-defaulting party should bear mitigation obligation, and the another one is that defaulting party also can undertake mitigation obligations. The author hold the view that non-defaulting party should be the only person who must assume mitigation obligations. Moreover, she put forward rational criterion, which can judge mitigation measures, Subjective good faith standard and objective standard. What is more, mitigation measures were also typed, including stopping to perform, keeping performing, timely terminating contract, timely substitute trade, all above were described with typical cases. These four mitigation measures were applied to different situations and can be used individually or alternately.In the third chapter, the author mainly analyzes problems about application of the rule of mitigation. Firstly, the author introduced the time about the start of mitigation obligations in united states and Britain particularly. Depended on beneficial factor of united states and Britain, thus the author proposed problems about how to apply the rule of mitigation in our country after anticipated breach of the rules. What is more, the author discussed the rule of mitigation’s restriction on the scope of offset for damages through avoided losses and losses that otherwise could have been avoided. Finally, the author discussed how to pay for fee caused by the rule of mitigation and stated the main debate among scholars lies on whether the non-defaulting party’s extra profits obtained by taking mitigation measures apply to the profit and loss offset. Some scholars hold the view that this idea is applicable from a causal perspective, while the other disagree with that from the angle of fair. In Chinese law practice, it was treated differently in diverse situation. The author considered that the non-defaulting party’s extra profits obtained by taking mitigation measures should belong to the non-defaulting party.