Study On The Application Of The Rule Of Negligence Offset

The rule of negligence offset originated from the field of tort liability,and there is no doubt that it can be applied in the tort liability.However,there is much controversy about whether it can be applied in the liability for breach of contract.The thirtieth article of The Judicial Interpretation Of Sale Contract defined that the rule of negligence offset can be applied in the contract,which made the standard mode of the rule of negligence offset in China is different from the two legal systems.What standard mode should be adopted for the application of the negligence offset?Whether the rule of negligence offset can be applied in the contract is the first problem we have to solve,and the most controversial point is whether the rule of negligence offset conflict with the principle of liability for breach ofcontract.The article holds that the rule of negligence offset can be applied in the liability for breach of contract,through analyzing the nature of the the principle of liability for breach of contract in the two legal systems,to demonstrated that it is reasonable that the rule of negligence offset can be applied in the strict liability.But the article also noticed that there are many problems in the application of the rule,such as the different ways of application lead to the judges have too much discretion,and the standard mode of the rule of negligence offset is too confusing that directly affects the judicial practice.In the judicial practice,this rule always confused with the breach of contract between the two parties and the rule of mitigation.So,for the application of the rule of negligence offset,the article thinks that we should change the way of application and adopt the double comparison method of the degree of fault and reason,it is more conducive to protect the lawful rights and interests of both parties.In addition,we should expand the adjustment range of the rule of negligence offset to the expansion of damage,and replace the rule of mitigation,so as to establish the unified standard mode.