On The Third Party’s Remedies For Altruistic Contract Breach

Since ancient Rome,some jurists believe that contracts are relative and no one can create any rights or obligations for the third party out of the relationship.The thirdparty contract of interest,which in breach of the traditional "Privity of contract" principle,is gradually recognized by the legislation of various countries as a result of a new economic form of business,the new Article 522(2)in the Civil Code of our country is a historic step to establish the real interest third party contract system.Then,the question that arises is,in a truly beneficial third-party contractual relationship,what is the source and nature of the third party’s contractual rights,how to obtain a series of independent claims,and how to exercise the right of relief in case of breach of contract.First of all,according to the law of the presumption of the right from the birth of private right,the right is the legal interest of the real state,and its essence is the legal interest of the specific type,the third party’s right is a new type of private right.The promisor and the promisee of the underlying contract have,by mutual consent,created a third-party contract of interest for a third party other than the contract,the third party,after knowing it,has confidence in the Act of the Contract Clause(the legal act of the parties)and makes certain acts which cause his own situation to be changed,such a change makes the third party have the reliance interest which is worthy of legal protection,at the same time,the third party also has the expectation interest that the contract party will fully perform the third party’s contract.These two kinds of interests have the legitimate basis through the legislation,and then evolved into a legal interest.Secondly,the right to relief is a secondary right based on the original right,so only the third party enjoys the right based on the contract,it can have the right to relief after the right has been infringed.Since the agreement of the parties to the contract results in the creation of the rights of the third party,the nature of the rights of the third party is of course a right of obligatory right,and its content should be determined according to the content of the Contract Clause for the benefit of the third party,the scope of the right to relief should also be limited by the scope of the parties’ right to relief,such as the right to claim payment,the right to claim damages for breach of contract,etc.According to the analysis of the parties’ agreement,the third party’s right of remedy for breach of contract can be determined.The third party obtains the right of claim for payment in accordance with the provisions of the civil code and can claim liability for breach of contract,while the right of claim for compulsory performance and the right of claim for damages both fall within the scope of liability for breach of contract,and with the right to pay the right to have consistency is the extension of its rights,so there is no doubt that the third party enjoy the above two rights.As for the right of rescission of a contract,because it is classified as a right of formation in German law,it has an absolute right to decide the fate of the contract and should be limited to the parties to the contract,if the parties do not agree to grant the third party the right of rescission or the agreement is unclear,the third party should not enjoy the right of rescission based on breach of contract.In addition,the third party in this case can get rid of the contract relationship by abstention.The application of independent contract clauses,such as liquidated damages and arbitration clause,should be judged in combination with the function and purpose of the clause and the intention of the parties.If the right of claim for breach of contract should be distinguished from the right of punitive breach of contract and the right of compensation for breach of contract,it is necessary to make a concrete judgment according to the different purposes of the establishment.In principle,the third party shall not exercise the right of claim for breach of contract without the agreement of the parties concerned,only in some special contracts the right to claim compensation for breach of contract can be limited,and once the third party can apply the clause,it must be bound by the clause and can not claim compensation for loss.Finally,in the case of a conflict between the creditor and the third party regarding the different forms of relief for breach of contract,it is consistent in principle with the aim of the protection of the legal rescission system of the contract,the claim for continued performance takes precedence over the claim for substitute performance.As for the three typical types of altruistic contracts: freight contract,insurance contract and trust contract,they should be handled flexibly according to the law and nature of the contract in their respective fields,and the special law is superior to the general law.To sum up,the third party in the contractual relationship of the third party with interests has trust in the contract based on the parties’ agreement,as a participant in a contract,even if he is a third party outside the basic contract relationship and has not paid a certain "consideration" to the promisor,out of the protection of his reliance interest and expectation interest,the law should also endow it with the corresponding original power and the relief power.