The Application Of Contributory Negligence In Breach Of Contract

Article 592,paragraph 2,of the Civil Code establishes the rule of contributory negligence,i.e.the negligence of the person entitled to compensation for the occurrence of the damage shall reduce the liability of the person liable for compensation.In the field of contract law,the rule of contributory negligence has been elevated from the Judicial Interpretation of Contracts of Sale and Purchase to the general norm of liability for breach of contract in the Civil Code as one of the qualifying rules for the scope of damages for breach of contract.However,due to the fact that the rule of contributory negligence was only stipulated in the field of tort in the precode period and its traditional theoretical concept was not unified with the current situation of the “three divisions” legislation of the Civil Code in China,the relevant theoretical research of the rule of contributory negligence in the field of liability for breach of contract was relatively small,which also led to the problem of application of judicial cases based on Article 592(2)of the Civil Code in practice.This has led to problems in the application of judicial cases based on Article 592(2)of the Civil Code,i.e.problems arising from changes in the system and formulation of legal norms after the inclusion of the Code,ambiguity in the constituent elements and controversy in the criteria for determination.This article will take the above-mentioned dilemma as a starting point to discuss the application of the rules on breach of contract and negligence,and propose three suggestions for improvement: refinement of the applicable rules,clarification of the constituent elements and unification of the recognition criteria.Firstly,the article holds a parallel view with the rule of derogation and discusses the rule of breach of contract and negligence,which is limited to Article 592(2)of the Civil Code;and the rule of breach of contract and negligence should be identified as a general norm of debt and applied to debt not arising from contract by virtue of Article 468 of the Civil Code.Secondly,the constitutive elements of the rule of breach and negligence require that the indemnifier must be “negligent”,that the“negligence” must satisfy the negligent capacity to take care and that there is a breach of an untrue obligation,and that there is a causal link between the indemnifier’s conduct and the occurrence of the damage This is to avoid the arbitrary application of the rule.Thirdly,in the case of damages for breach of an incidental duty and fault-based liability,when the right holder is at fault for the occurrence of the damage,comparative fault should be considered first;in the case of damages for the adoption of the principle of strict liability,when the right holder is at fault for the occurrence of the damage,comparative causation should be considered first.