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Study On The Compensation Of Mental Damage For Breach Of Contract

Posted on:2017-03-23Degree:MasterType:Thesis
Country:ChinaCandidate:J L ZhaoFull Text:PDF
GTID:2416330623954671Subject:Civil and Commercial Law
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In the traditional principles of civil law,there is no compensation regulations of mental damage for breach of contract.But in judicial practice,some courts have supported the compensation of mental damage in contract law area.Due to the lack of consensus,this article will study and analyze several court decisions and their reasons.Then,measures for improving compensation system of mental damage for breach of contract will be proposed in this article as well.The first part of this article introduces the backgrounds and methods.In this period,most domestic and foreign scholars are focusing on debates about the rationality and applicable scope of compensation of mental damage for breach of contract.Literature research and empirical research are both applied in this paper.Secondly,this paper introduces the connotation and the overall situation in practice.There are few cases have supported the compensation of mental damage for breach of contract.On the whole,in terms of geographical distribution,there are significant differences among the case number.Moreover,while a wide range of contract types are involved,most of the cases were categorized into transport contracts,service contracts,housing sales contracts.In addition,there are significant differences in different forms of breach of contract.The third part analyzes the specific situation in four different forms of breach of contract,including impossibility of performance,delay in performance,inadequate performance and non-performance.Compensation of mental damage for impossibility of performance has been applied to the cases belonged to objective impossibility and subjective impossibility,such as the breaching party unable to deliver caused by monuments had been damaged and lost,or the wedding venue had been booked.All the claims for compensation of mental damage so far have been rejected when it refers to delay in performance.However,in my opinion,if there are mental expectation interests in the contract,and the mental damage can be foreseen by the default party,the compensation of mental damage should be supported.Inadequate performance includes defective payment and injurious payment.Compensation of mental damage was applied to the cases of defective delivery and service,or one's body or property damaged.Non-performance can be divided into three kinds according to theperiod of refusal.If rejection was made after the period of performance,rules of compensation of mental damage for delay in performance can be applied.What is more,if the rejection was made before or during the period of performance,requests for compensation of mental damage can also be supported in specific conditions.Finally,typologically analysis is used in this part to guide the judicial practice,and there is no relation between forms of breach and compensation of mental damage.The scope of compensation consists of two parts,one is the mental damage caused by the violation of inherent interests,and the other is the loss of expectation interests.Compensation of mental damage for breach of contract is applied only to non-commercial contracts,and subjected to the rules of foreseeable,contributory negligence rule,and profit and loss balance rule.It is essential to establish unified factors and standards to determine the amount of compensation.
Keywords/Search Tags:breach of contract, mental damage, empirical research, application situation
PDF Full Text Request
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