The Studies On The Duty To Mitigate

The duty to mitigate,originated from the Common Law,is a rule that limits the scope of compensation for damages in contractual liability,and has now been recognized and adopted by the case law and legislation of most countries(regions).The legislation of this rule in China's civil law system is embodied in Article 119 of the Contract Law.Although there is clear legislation,the application of the duty to mitigate in judicial practice has not formed a unified and clear understanding.This thesis introduces the nature,undertaker and the legitimacy of the duty to mitigate,analyzes the time when the duty to mitigate comes into being,four typical mitigation measures,and the judgment standard of the reasonableness of the mitigation measures to provide ideas for the development of the mitigation rule.This thesis is divided five parts.The first part puts forward the problems of this thesis with the help of cases,including the origin of the duty to mitigate and the possible difficulties in the application of it.The second part mainly introduces the definition and generation of the duty to mitigate.The first section mainly discusses three issues,one is the nature of the duty to mitigate,the other is the undertaker of the duty to mitigate,the third is the relationship between the mitigation and the contributory negligence.The second section then expounds the legitimacy of mitigation.As a restrictive rule of the rules of compensation for damages,it should have the rationality of existence if it ascribes the non-benefit of non-performance to the injured party.There is a certain connection between the theory of the legitimacy of the duty to mitigate and the determination of the rationality of the duty to mitigate.The third section discusses the starting time of the duty to mitigate,which can be divided into actual breach and expected breach.The third part mainly studies four typical mitigation measures,namely,stop performance,continue performance,accept the new offer of the defaulting party and continue performance and analyze relevant cases.The fourth part mainly introduces the determination of the rationality of the mitigation measures.The first section introduces three typical judgment standards,which are reasonable person standard,good faith standard and economic reasonable standard.The second section discusses other factors that affect rationality,including abstract factors and specific factors.The third section makes a conclusion on the content of this part..The fifth part summarizes the main contents of the research results of the first five chapters,and answers the questions raised in first section,and then discusses how to improve our country's mitigation rule.