The Application And Restriction Of The Damages For Mental Distress In Breach Of Travel Contracts

At present,the contractual damages for mental distress is definitely a puzzling question under the circumstance that our civil law has no clear stipulation about it.In fact,it touches a boundary issue existing in traditional civil law that the dualistic system of the remedy for breach of contract and remedy for infringement is detached,because the conventional view holds that mental distress could only be compensated in the suit of tort.The rapidly changing world and the bold breakthrough in some courts prompt me to do some rethink of China’s current legislation and prevailing theories.Such kind of rethink is not to deny the tortious damages for mental distress,but to figure out the legitimacy and feasibility of damages for mental distress in contract field,so as to break the spell that mental distress cannot be applied in the suit of contract.The reason why I choose travel contracts as my research target is that tour itself possesses mental value and that travel contracts require travel agencies to provide mental products,which differs them from common civil contracts.It is a pity that Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Cases about Tour Disputes stifles the contractual damages for mental distress in the cradle,while it is generally accepted in overseas legislations and the theoretical cycle of homeland has also reached a consensus that the claim for contractual mental distress should be supported by judges.That is why I doubt the reasonability of article 21 of Provisions of the Supreme People’s Cour’t on Several Issues Concerning the Application of Law in the Trial of Cases about Tour Disputes.The first part starts with a tour dispute,which will introduce some meant to be resolved problems:(a)if tourists or vacationers do suffer from mental distress while default acts can’t constitute tort,namely pure breach of contract,do they have the right to claim for damages for mental distress in the suit of contract?(b)according to the article 122 of Contract Law of the People’s Republic of China,if the breach of contract by one party infringes upon the other party’s personal or property rights,namely concurrent liability in tort and contract,the aggrieved party is entitled to choose to sue on tort or sue on the breach of contract.If tourists want to claim for damages for mental distress,do they still have such right to choose between the two?The second part makes a distinction between non-pecuniary loss and mental distress to avoid unnecessary misunderstanding.In fact,the scope of non-pecuniary loss is much wider than mental distress.When introducing non-pecuniary loss to mainland China in early years,jurists and scholars translated it into mental distress,an expression that is still in use today.For the convenience of discussion,this paper adopts mental distress,but it has the same meaning as non-pecuniary loss.Also,this part gives definitions to pure breach of contract and concurrent liability,performance interest and inherent interest,travel contract and performance assistant.The third part analyzes the current situation of damages for mental distress in breach of a travel contract.So far in China,there is no legislation having explicit provisions in favor of contractual damages for mental distress,nor much negative regulations.The only negative regulation is article 21 of Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Cases about Tour Disputes.Jurists and scholars have different opinions towards whether contract law should admit damages for mental distress or not.As for the current judicial situation,if tourists sue on contract for damages for mental distress,although there are some sporadic verdicts supporting such a claim,judges are more likely to overrule the claim because it’s utterly baseless from the angle of law.After Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Cases about Tour Disputes came into effect,article 21 becomes a new reason of rejection.The fourth part analyzes overseas legislations,cases and academic viewpoints.Then I find that damages for mental distress has been penetrating into contract area gradually with the development of economy,so the modern codes of many western countries establish compensation system for mental distress in different degree,which is quite enlightening for China.The fifth part proves the legitimacy of damages for mental distress in breach of a travel contract from three aspects:theory of interest in expectancy,the rule of foreseeability and the principle of full compensation,and then analyzes its feasibility in practice from legal interpretation,categorization and autonomy of will.The sixth part is about the constitutive requirements of damages for mental distress in travel contracts.The general requirement is limited to default and there is no exemption.Specific requirements includes subjective fault,actual damages and causation.In order to prevent the improper expansion of contractual damages for mental distress,I also list four restriction rules:mental distress can’t be recoverable in pure commercial contracts,slight mental distress can’t get compensation,negligence offset and mitigation of damage.The last part is the conclusion of this paper.