On The Remedy Of Collateral Obligation Violation Of Contract

The theory of collateral obligation gradually generates and develops with German theory and judicial precedent which is based on the legal principle of honesty and credibility.The contract law of our country defines collateral obligation in section 2 of article 60,but the contract law does not specify content of collateral obligation or legal effect of violating collateral obligation of contract,so there is certain dispute for collateral obligation between theory realm and practical realm,such as content,specific type,the difference with conventional obligation and remedy for violating collateral obligation and so on.Therefore,distinguishing the content of collateral obligation and applicable remedy way for violating collateral obligation plays an important role in building the theory of violating collateral obligation and putting use to judicial practice.First via analyzing the definition of collateral obligation provided by scholars from all countries,we think collateral obligation means the obligation generated from fulfilling contract,preserves client’s inherent personal and property rights.Also it can be expressed in different types of obligation,such as assist,security and protection,etc..Then through analysis of theory and case,in the case of violating collateral obligation resulting in frustration of contract purpose,and collateral obligation and main payment obligation meet the demand for implication of occurrence,continuance and execution,and right of defense is applicable during fulfilling the contract,we can use defense right of simultaneous performance.Moreover,collateral obligation can be performed forcibly when collateral obligation accords with application of fulfilling right of claim.Also the contract can be terminated when violating collateral obligation resulting in frustration of contract purpose.The section 4 of article 94 of Chinese contract is the legal foundation for explaining the right of rescission of contract applicable for violating collateraobligation.Finally,the range of compensation for violating collateral obligation should contain inherent interest,performance interest and loss of non-property.Compensation for damages because of violating collateral obligation should suit the principle of full compensation,predictability,derogation and fault balance.