上海交通大学：《Chinese Contract Law》课程教学资源_Reading Materials_Liabilities in Contract Law of China：Their Mechanism and Points in Dispute

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122 Front.Law China(2006)1:121-152 New trends of civil legislation in China The drafting of law of property and the amendment of constitution law It is aimed that China has a perfect legal system compliant with market economy and rule of law by the end of year 2010.Now there is no formal civil code in P.R.China,so in March of 1998,the legislative organ of China(National People's Congress)invited nine civil law scholars and experts to set up a working group to prepare for the drafting of Civil Code of China.As the programs of the working group,a new contract law should be adopted in 1999, a property law should be adopted in 4 or 5 years,and by the end of 2010,there should be a formal civil code of China. According to the programs,Professor Huixing Liang (Professor of Law,Law Institute, Chinese Academy of Social Sciences)was consigned in charge of preparing and submitting a draft of Property Law.And a draft of Property Law by the Professor Liang's group was accomplished in October 1999.It is composed of 12 chapters of 435 articles.But the draft is thought has not pay enough attention on State Property and Property of Collective Organizations of the Working Masses by the legislative organ of China.As a result,Professor Liming Wang(Professor of Law,Law School,Chinese People University)was consigned in charge of preparing and submitting another draft of Property Law.Professor Wang and his group accomplished their draft in December 2000.2The Legal Work Commission of the Standing Committee of the National People's Congress prepared a new draft on the base of the above two drafts in January 2002.Now the new draft is in the course ofinquiring opinions and suggestions. On 14 March 2004 the Constitution Law of P.R.China has been amended.The expropriation system has been improved(art.10)and the protection of private property has been emphasized (art.13). The amendment of law of marriage Law of Marriage of P.R.China 1980 has been applied for more than 20 years since it was enacted.And the society has changed sharply during the past 20 years.In order to adapt to the changed society,the Law was amended and adopted on 28 April 2001.The contents of the Law include:Chapter I,General Provisions;Chapter II,Marriage;Chapter III,Family Relationship;Chapter IV,Divorce;Chapter V,Methods for Help and Legal Liabilities;and Chapter VI,Supplementary Provisions.There are some important improvements in the new Law of Marriage,including new provisions on void marriage and voidable marriage(arts.10- 12),manipulable standards of divorce(art.32),and the right for party without fault in divorce claiming compensation(art.46).The Law of Marriage will be one Book of the future Chinese Civil Code. As a publication in Chinese,Huixing Liang etc.,A propositional draft of Chinese property law:its articles. notes,comments and comparative law.(2000),Social Sciences Documents Publishing House. 2As a publication in Chinese,Liming Wang ed.,A propositional draft and its illustrations of Chinese property law,(2001).China Legal System Publishing House

New trends of civil legislation in China The drafting of law of property and the amendment of constitution law It is aimed that China has a perfect legal system compliant with market economy and rule of law by the end of year 2010. Now there is no formal civil code in P.R. China, so in March of 1998, the legislative organ of China (National People’s Congress) invited nine civil law scholars and experts to set up a working group to prepare for the drafting of Civil Code of China. As the programs of the working group, a new contract law should be adopted in 1999, a property law should be adopted in 4 or 5 years, and by the end of 2010, there should be a formal civil code of China. According to the programs, Professor Huixing Liang (Professor of Law, Law Institute, Chinese Academy of Social Sciences) was consigned in charge of preparing and submitting a draft of Property Law. And a draft of Property Law by the Professor Liang’s group was accomplished in October 1999. It is composed of 12 chapters of 435 articles.1 But the draft is thought has not pay enough attention on State Property and Property of Collective Organizations of the Working Masses by the legislative organ of China. As a result, Professor Liming Wang (Professor of Law, Law School, Chinese People University) was consigned in charge of preparing and submitting another draft of Property Law. Professor Wang and his group accomplished their draft in December 2000.2 The Legal Work Commission of the Standing Committee of the National People’s Congress prepared a new draft on the base of the above two drafts in January 2002. Now the new draft is in the course of inquiring opinions and suggestions. On 14 March 2004 the Constitution Law of P.R. China has been amended. The expropriation system has been improved (art. 10) and the protection of private property has been emphasized (art. 13). The amendment of law of marriage Law of Marriage of P.R. China 1980 has been applied for more than 20 years since it was enacted. And the society has changed sharply during the past 20 years. In order to adapt to the changed society, the Law was amended and adopted on 28 April 2001. The contents of the Law include: Chapter I, General Provisions; Chapter II, Marriage; Chapter III, Family Relationship; Chapter IV, Divorce; Chapter V, Methods for Help and Legal Liabilities; and Chapter VI, Supplementary Provisions. There are some important improvements in the new Law of Marriage, including new provisions on void marriage and voidable marriage (arts. 10– 12), manipulable standards of divorce (art. 32), and the right for party without fault in divorce claiming compensation (art. 46). The Law of Marriage will be one Book of the future Chinese Civil Code. 1 As a publication in Chinese, Huixing Liang etc., A propositional draft of Chinese property law: its articles, notes, comments and comparative law,(2000), Social Sciences Documents Publishing House. 2 As a publication in Chinese, Liming Wang ed., A propositional draft and its illustrations of Chinese property law, (2001), China Legal System Publishing House. 122 Front. Law China (2006) 1: 121–152

Front.Law China(2006)1:121-152 123 The drafiing of Chinese civil code According to the design of Professor Huixing Liang and his drafting group,the future Chinese Civil Code should be composed of seven Books,which includes: Book One:General Provisions; Book Two:Law of Property; Book Three:Law of Obligation in General; Book Four:Law of Contracts; Book Five:Law of Torts; Book Six:Law of Marriage and Family Relationship; Book Seven:Law of Succession. A drafting group,which is composed by more than 20 Chinese scholars and in charged by Professor Liang,had finished its drafting work of Chinese Civil Code.And as a final achievement,a text composed of 1,924 articles has been published.4 The Legal Work Commission of the Standing Committee of the National People's Congress also prepared a new draft of civil law in December 2002 (here after the "Draft 2002").The Draft 2002 is composed with nine books,namely: Book One:General Provisions; Book Two:Law of Property; Book Three:Law of Contract; Book Four:Law of Personality; Book Five:Law of Marriage; Book Six:Law of Adoption; Book Seven:Law of Succession; Book Eight:Law of Torts; Book Nine:Law of Application of Law in Civil Relations with Foreigners. Now the new draft is also in the course of inquiring opinions and suggestions. The expansion of contractual obligations and a new structure of contractual liabilities in Chinese laws The expansion of contractual obligations In former Chinese contract law theories,it had been thought that contractual obligations meant obligations agreed by the parties(Leistungspflicht).But in the past 10 years,theories on contractual obligations in Chinese civil law science developed a lot.And this profits from theory receptions of foreign cases and theories.> 3 The author is also a member ofthe drafting group,in charge of the drafting of Liabilities for Breach of Contract of Book Four. As a publication in Chinese,see Huixing Liang ed..A propositional draft of Chinesecivil code,(2003),Law Press,China. 5 See Tze-chien Wang,Studies on civil law theories and cases,Vol.4.(1991),Taiwan;Jiafu Wang ed.,Law of Obligation,(1991.Guangxing Zhang),Law Press,China,pp.143-150

The drafting of Chinese civil code According to the design of Professor Huixing Liang and his drafting group,3 the future Chinese Civil Code should be composed of seven Books, which includes: Book One: General Provisions; Book Two: Law of Property; Book Three: Law of Obligation in General; Book Four: Law of Contracts; Book Five: Law of Torts; Book Six: Law of Marriage and Family Relationship; Book Seven: Law of Succession. A drafting group, which is composed by more than 20 Chinese scholars and in charged by Professor Liang, had finished its drafting work of Chinese Civil Code. And as a final achievement, a text composed of 1,924 articles has been published.4 The Legal Work Commission of the Standing Committee of the National People’s Congress also prepared a new draft of civil law in December 2002 (here after the “Draft 2002”). The Draft 2002 is composed with nine books, namely: Book One: General Provisions; Book Two: Law of Property; Book Three: Law of Contract; Book Four: Law of Personality; Book Five: Law of Marriage; Book Six: Law of Adoption; Book Seven: Law of Succession; Book Eight: Law of Torts; Book Nine: Law of Application of Law in Civil Relations with Foreigners. Now the new draft is also in the course of inquiring opinions and suggestions. The expansion of contractual obligations and a new structure of contractual liabilities in Chinese laws The expansion of contractual obligations In former Chinese contract law theories, it had been thought that contractual obligations meant obligations agreed by the parties (Leistungspflicht). But in the past 10 years, theories on contractual obligations in Chinese civil law science developed a lot. And this profits from theory receptions of foreign cases and theories.5 3 The author is also a member of the drafting group, in charge of the drafting of Liabilities for Breach of Contract of Book Four. 4 As a publication in Chinese, see Huixing Liang ed., A propositional draft of Chinesecivil code, (2003), Law Press, China. 5 See Tze-chien Wang, Studies on civil law theories and cases, Vol. 4, (1991), Taiwan; Jiafu Wang ed., Law of Obligation, (1991, Guangxing Zhang), Law Press, China, pp.143–150. Front. Law China (2006) 1: 121–152 123

124 Front.Law China(2006)1:121-152 Now in Chinese law,good faith and fair dealing (Treu und Glauben)becomes the most important general principle(GPCL art.4;CCL art.6),and it must be followed by the parties of a contract while exercise a right or perform an obligation.Correspondingly,the contents of contractual obligations,influenced by the civil law theories of Germany and Taiwan,is thought no longer limited to what the parties agreed upon.The parties shall observe the principle of good faith and fair dealing,and fulfill the obligations of notification,assistance and confidentiality in accordance with the nature and purpose of the contract and trade practices (CCL art.60 par.2).These kinds of obligations are called "ancillary obligations" (Nebenpflicht). Now"ancillary obligation"theory has taken its root both in legal theories and legislations of China.Besides,there are articles on pre-contractual obligations(arts.42 and 43)and post- contractual obligations (art.92)in CCL,and contractual obligations are expended further. Generally laying down ancillary obligations,pre-contractual obligations and post- contractual obligations in a statute,perhaps China is the first one in doing so in civil law countries.As these kinds of rules are almost in case laws in other civil law countries.6 A new structure of contractual liabilities In Chinese civil law theories,the concept of"contractual liability"is a point in dispute.'In this paper,contractual liability presupposes the existence of contractual obligations(include those kind of obligations provided by CCL).Corresponding with the above expansion of contractual obligations,there is a phenomenon in CCL of expansion of contractual liabilities. The phenomenon in CCL is somewhat similar with what Japanese scholars called"expansion of contractual obligations"(keiyaku sekinin no kakutyou),but there are still some differences.For example,as the German case law theory of"Contract with Effects Protecting a Third Party,"although there are some introductions about it in China,but some Chinese scholars emphasized the doctrine of"privity of contract."According to their viewpoints,as a general rule,a contract cannot confer rights arising from it on a third person.CCL confirms the doctrine (as can be reflected indirectly from art.121).On the other hand,some other articles permit a third person having some rights arising from contract.For example, according to art.234,if the lessee dies within the lease term of a leased house,the persons who live together with the deceased may lease the house according to the original lease contract. In this paper,"contractual liability"refers mainly to liability for Culpa in contrahendo, liability for breach of contract and liability for breach of post-contractual obligations(post- contract fault),as being expressed in Figure 1. 6 Greece Civil Code only has a provision on pre-contractual duty.When the Act on the Reform of the Law of Obligations(Schuldrechtsreformgesetz)of Germany entered into force on 1 January 2002.it should be noticed that the appended $241(2)provides"duties arising out of the obligation",namely"an obligation may require each party to have regard to the other party's rights,legally protected interests and other interests". As one viewpoint,contractual liability means liability for breach of contract.See Jianyuan Cui,Studies on contractual liabilities,(1992)Jilin University Publishing House,p.8.As to another viewpoint,contractual liability means liabilities in contract law.See Liming Wang.On liabilities for breach of contract,(1996). Chinese Politic and Law University Publishing House,p.26. s See Kenzo Miyamoto,Obligation of care for safety and the expansion of contractual liabilities,(1993). Tokyo,Japan,p.5. Liming Wang.Studies on civil and commercial law,vol.3,(1999),Law Press China,p.429

Now in Chinese law, good faith and fair dealing (Treu und Glauben) becomes the most important general principle (GPCL art. 4; CCL art. 6), and it must be followed by the parties of a contract while exercise a right or perform an obligation. Correspondingly, the contents of contractual obligations, influenced by the civil law theories of Germany and Taiwan, is thought no longer limited to what the parties agreed upon. The parties shall observe the principle of good faith and fair dealing, and fulfill the obligations of notification, assistance and confidentiality in accordance with the nature and purpose of the contract and trade practices (CCL art. 60 par. 2). These kinds of obligations are called “ancillary obligations” (Nebenpflicht). Now “ancillary obligation” theory has taken its root both in legal theories and legislations of China. Besides, there are articles on pre-contractual obligations (arts. 42 and 43) and postcontractual obligations (art. 92) in CCL, and contractual obligations are expended further. Generally laying down ancillary obligations, pre-contractual obligations and postcontractual obligations in a statute, perhaps China is the first one in doing so in civil law countries. As these kinds of rules are almost in case laws in other civil law countries.6 A new structure of contractual liabilities In Chinese civil law theories, the concept of “contractual liability” is a point in dispute.7 In this paper, contractual liability presupposes the existence of contractual obligations (include those kind of obligations provided by CCL). Corresponding with the above expansion of contractual obligations, there is a phenomenon in CCL of expansion of contractual liabilities. The phenomenon in CCL is somewhat similar with what Japanese scholars called “expansion of contractual obligations” (keiyaku sekinin no kakutyou),8 but there are still some differences. For example, as the German case law theory of “Contract with Effects Protecting a Third Party,” although there are some introductions about it in China, but some Chinese scholars emphasized the doctrine of “privity of contract.” According to their viewpoints, as a general rule, a contract cannot confer rights arising from it on a third person.9 CCL confirms the doctrine (as can be reflected indirectly from art. 121). On the other hand, some other articles permit a third person having some rights arising from contract. For example, according to art. 234, if the lessee dies within the lease term of a leased house, the persons who live together with the deceased may lease the house according to the original lease contract. In this paper, “contractual liability” refers mainly to liability for Culpa in contrahendo, liability for breach of contract and liability for breach of post-contractual obligations (postcontract fault), as being expressed in Figure 1. 6 Greece Civil Code only has a provision on pre-contractual duty. When the Act on the Reform of the Law of Obligations (Schuldrechtsreformgesetz) of Germany entered into force on 1 January 2002, it should be noticed that the appended §241(2) provides “duties arising out of the obligation”, namely “an obligation may require each party to have regard to the other party’s rights, legally protected interests and other interests”. 7 As one viewpoint, contractual liability means liability for breach of contract. See Jianyuan Cui, Studies on contractual liabilities, (1992) Jilin University Publishing House, p.8. As to another viewpoint, contractual liability means liabilities in contract law. See Liming Wang, On liabilities for breach of contract, (1996), Chinese Politic and Law University Publishing House, p.26. 8 See Kenzo Miyamoto, Obligation of care for safety and the expansion of contractual liabilities, (1993), Tokyo, Japan, p.5. 9 Liming Wang, Studies on civil and commercial law, vol.3, (1999), Law Press China, p.429. 124 Front. Law China (2006) 1: 121–152

Front.Law China (2006)1:121-152 125 Pre-contractual obligations Liability for culpa in contrahendo pend Leistungspflicht Liabilities for Contractual obligations breach of “Ancillary obligations'” contract (Nebenpflicht). Contractual liabilities xpend Expend Liability for breach of Post-contractual obligations post-contractual obligations Fig.1 Breach of contract and its liabilities Breach ofcontract Chapter Seven of CCL is named "Liability for Breach of Contract"(arts. 107-122).In Chinese laws,"breach of contract"means "a party fails to perform its obligations under the contract or fails to perform them as contracted"(CCL art.107;GPCL art.111).On one hand,"contractual obligations,"as has been pointed above,is not confined to Leistungspflicht,it also includes ancillary obligations(CCL art.60 par.2).A breach of ancillary obligations may also amount a breach of contract,and may entail liabilities for breach of contract.On the other hand,"breach of contract"concems only to the object aspect of one's act or omission,and does not care about whether ornot the act oromission excused. As to the types of breach of contract,there are a lot of disputes between Chinese scholars. Before the enactment of CCL,the main dispute concerns on whether "anticipatory breach" may be a kind of breach in Chinese law or not.CCL confirms that anticipatory breach is a type of breach of contract(arts.108,94 sent.2). Now the types of breach of contract may be divided into two categories,namely anticipatory breach and actual breach.And anticipatory breach,as can be read out from CCL art.108,includes"explicitly expressing its intention not to perform its obligations under the contract"(anticipatory renunciation of contract)and "indicating by act its intention not to perform its obligations under the contract"(anticipatory disablement of performance).Actual breach,as can be read out from CCL art.107,denotes"failing to perform its obligations under the contract'”and“failing to perform its obligations as contracted.”“Failure to perform an obligation"may be interpreted as including disablement of performance,delay of performance and refusal to perform,the essential characteristic of them (as opposed to anticipatory breach)is that they occur after the time due for performance."Failure to perform an obligation as contracted"may be interpreted as defective performance.Where the per- 10"Breach of contract"in CCL should be distinguished from the words in the common law sense.In the common law sense,a breach of contract is meant a non-performance that is not excused,e.g.under the rules as to frustration.See G.H.Treitel,The Law of Contract(1995),p.746.So a breach of contract in CCL resembles a "non-performance"of a contract in Principles of European Contract Law(PECL)

Breach of contract and its liabilities Breach of contract Chapter Seven of CCL is named “Liability for Breach of Contract” (arts. 107–122). In Chinese laws, “breach of contract” means “a party fails to perform its obligations under the contract or fails to perform them as contracted” (CCL art. 107; GPCL art. 111). On one hand, “contractual obligations,” as has been pointed above, is not confined to Leistungspflicht, it also includes ancillary obligations (CCL art. 60 par. 2). A breach of ancillary obligations may also amount a breach of contract, and may entail liabilities for breach of contract. On the other hand, “breach of contract” concerns only to the object aspect of one’s act or omission, and does not care about whether or not the act or omission excused.10 As to the types of breach of contract, there are a lot of disputes between Chinese scholars. Before the enactment of CCL, the main dispute concerns on whether “anticipatory breach” may be a kind of breach in Chinese law or not. CCL confirms that anticipatory breach is a type of breach of contract (arts. 108, 94 sent. 2). Now the types of breach of contract may be divided into two categories, namely anticipatory breach and actual breach. And anticipatory breach, as can be read out from CCL art. 108, includes “explicitly expressing its intention not to perform its obligations under the contract” (anticipatory renunciation of contract) and “indicating by act its intention not to perform its obligations under the contract” (anticipatory disablement of performance). Actual breach, as can be read out from CCL art. 107, denotes “failing to perform its obligations under the contract” and “failing to perform its obligations as contracted.” “Failure to perform an obligation” may be interpreted as including disablement of performance, delay of performance and refusal to perform, the essential characteristic of them (as opposed to anticipatory breach) is that they occur after the time due for performance. “Failure to perform an obligation as contracted” may be interpreted as defective performance. Where the perFig. 1 10 “Breach of contract” in CCL should be distinguished from the words in the common law sense. In the common law sense, a breach of contract is meant a non-performance that is not excused, e.g. under the rules as to frustration. See G. H. Treitel, The Law of Contract (1995), p.746. So a breach of contract in CCL resembles a “non-performance” of a contract in Principles of European Contract Law (PECL). Front. Law China (2006) 1: 121–152 125

126 Front.Law China(2006)1:121-152 Anticipatory renunciation Refuse to perform Before the Anticipatory time due for breach Anticipatory disablement Disable to perform performance Breach of contract Disable to perform Failure to perform After the Delay to perform Actual time due for breach Failure to cooperate performance Refuse to perform Failure to perform as contracted Defectively performed Fig.2 formance of contract by the obligor needs cooperation by the obligee,the obligee's refuse or delay to cooperate may also amount a breach of contract,as being expressed in Figure 2. Liabilities for breach of contract A liability for breach of contract is a kind of adverse legal result that one party should bear because of its breach.According to CCL,as a general rule, the breaching party shall bear the liability for breach of contract by continuing to perform the obligations,taking remedial measures,or compensating for losses(art.107).And there is no requirement of fault on the side of breaching party by art.107.It is called"Strict Liability Principle."So it can be generally speaking that an obligor cannot be exempted of liability for breach just by proving that it has no fault for the breach.The only excuse that can be found in Chapter Seven of CCL is force majeure,laid down in arts.117 and 118.In this aspect,CCL learned a lot from United Nations Convention on Contracts for the International Sale of Goods (here after CISG)and UNIDROIT Principles of International Commercial Contracts (here after PICC).In former Chinese laws,as in other Civil Law countries,liabilities for breach of contract is generally a kind of faulty liability,the breaching party's fault is pre- supposed,and it is the breaching party's burden to prove that it has no fault for the breaching. During the drafting of CCL,it was a sharp point in dispute whether to adopt the "Strict Liability Principle"or not.By adopting the "Strict Liability Principle,"CCL is thought to pursue a kind of accommodation with the UN convention(CISG)and model laws(PICC and PECL).12 As viewpoints against the adoption of"strict liability principle",see Shiyuan Han,Sudies on damages for breach ofcontract,(doctor degree treatise,1997.Graduate School,Chinese Academy of Social Sciences;as a book with the same title published by Law Press China in 1999);Jianyuan Cui,Strict liability?or fault liability? in Civil and Commercial Law Review,vol.11,Law Press China 1999.As those approve for the adoption of "strict liability principle".see Huixing Liang,From fault liability to strict liability,in Civil and Commercial Law Review,vol.8,Law Press China 1997. 12It should be noted that CCL also has some provisions can be read as fault liability,for example art.406 par.1. Whether arts.374 and 394 may be read as fault liability or not,there are different viewpoints in China.As it to me,these two articles should also be read as fault liability

formance of contract by the obligor needs cooperation by the obligee, the obligee’s refuse or delay to cooperate may also amount a breach of contract, as being expressed in Figure 2. Liabilities for breach of contract A liability for breach of contract is a kind of adverse legal result that one party should bear because of its breach. According to CCL, as a general rule, the breaching party shall bear the liability for breach of contract by continuing to perform the obligations, taking remedial measures, or compensating for losses (art. 107). And there is no requirement of fault on the side of breaching party by art. 107. It is called “Strict Liability Principle.” So it can be generally speaking that an obligor cannot be exempted of liability for breach just by proving that it has no fault for the breach. The only excuse that can be found in Chapter Seven of CCL is force majeure, laid down in arts. 117 and 118. In this aspect, CCL learned a lot from United Nations Convention on Contracts for the International Sale of Goods (here after CISG) and UNIDROIT Principles of International Commercial Contracts (here after PICC). In former Chinese laws, as in other Civil Law countries, liabilities for breach of contract is generally a kind of faulty liability, the breaching party’s fault is presupposed, and it is the breaching party’s burden to prove that it has no fault for the breaching. During the drafting of CCL, it was a sharp point in dispute whether to adopt the “Strict Liability Principle” or not.11 By adopting the “Strict Liability Principle,” CCL is thought to pursue a kind of accommodation with the UN convention (CISG) and model laws (PICC and PECL).12 Fig. 2 11 As viewpoints against the adoption of “strict liability principle”, see Shiyuan Han, Studies on damages for breach of contract, (doctor degree treatise, 1997, Graduate School, Chinese Academy of Social Sciences; as a book with the same title published by Law Press China in 1999); Jianyuan Cui, Strict liability? or fault liability? in Civil and Commercial Law Review, vol.11, Law Press China 1999. As those approve for the adoption of “strict liability principle”, see Huixing Liang, From fault liability to strict liability, in Civil and Commercial Law Review, vol.8, Law Press China 1997. 12 It should be noted that CCL also has some provisions can be read as fault liability, for example art. 406 par. 1. Whether arts. 374 and 394 may be read as fault liability or not, there are different viewpoints in China. As it to me, these two articles should also be read as fault liability. 126 Front. Law China (2006) 1: 121–152

Front.Law China(2006)1:121-152 127 It should be noted that the concept of"liability for breach of contract"used by CCL does not has the same meaning with "liability for non-performance of obligation"used by traditional civil law theories.As"guarantee liability"has been unified with liability for breach of contract in CCL(arts.111 and 155).It should also be noted that"breach of contract"used by CCL has some differences with"non-conformity of contract"used by CISG.Especially in the aspect of corresponding liabilities,"liability for breach of contract"in CCL may include "consequential damages"(as art.112 may have such interpretation).While in CISG,liability of the seller for death or personal injury caused by the goods to any person is out of the Convention's sphere of application(CISG art.5).So when a breach of contract causes personal injury or damage to property (other than the very thing contracted for),the injured party may claim compensation in a contract action according to CCL. As to the types of liabilities for breach of contract in CCL,there are enforced performance (arts.109,110 etc.),damages(art.113)and payments stipulated by the contract(art.114). And as a remedy for breach of contract,a party who is aggrieved by the other party's failure to perform contract may terminate the contract(arts.93,94 etc.).It should be noted that it is a freedom of the aggrieved party to choose a specific relief or a substitutionary one or a combination of the two if possible,as there is no mandatory sequence of the remedies for breach of contract in CCL. Pre-contractual obligations and liability for culpa in contrahendo With a lot of reference to foreign civil law theories and the provisions in PICC(arts.2.15 and 2.16)and PECL (arts.2:301 and 2:302),CCL makes a resemble provision (arts.42 and 43). And these provisions are interpreted as pre-contractual obligations and the liability for culpa in contrahendo.Besides,art.58 of CCL on effects of a void contract also includes some effects of the liability for culpa in contrahendo. Post-contractual obligations and post-contractual liability CCL makes a provision on post-contractual obligations(art.92),according to which,even the contractual relationship is over,the parties shall perform obligations of notification,assistance and confidentiality in light of good faith and fair dealing and in accordance with trade practices.As to effects of breach of post-contractual obligation,there is no provision in CCL. In scholastic interpretation,it should be treated by liabilities for breach of contract.But post- contractual liability should not be treated as strict liability,it is a kind of fault liability. Liabilities for culpa in contrahendo Introduction The theory of culpa in contrahendo,which is first presented by German scholar Rudolf von Jhering in 1861 and is developed by German cases,has its influences in China.The influence

It should be noted that the concept of “liability for breach of contract” used by CCL does not has the same meaning with “liability for non-performance of obligation” used by traditional civil law theories. As “guarantee liability” has been unified with liability for breach of contract in CCL (arts. 111 and 155). It should also be noted that “breach of contract” used by CCL has some differences with “non-conformity of contract” used by CISG. Especially in the aspect of corresponding liabilities, “liability for breach of contract” in CCL may include “consequential damages” (as art. 112 may have such interpretation). While in CISG, liability of the seller for death or personal injury caused by the goods to any person is out of the Convention’s sphere of application (CISG art. 5). So when a breach of contract causes personal injury or damage to property (other than the very thing contracted for), the injured party may claim compensation in a contract action according to CCL. As to the types of liabilities for breach of contract in CCL, there are enforced performance (arts. 109, 110 etc.), damages (art. 113) and payments stipulated by the contract (art. 114). And as a remedy for breach of contract, a party who is aggrieved by the other party’s failure to perform contract may terminate the contract (arts. 93, 94 etc.). It should be noted that it is a freedom of the aggrieved party to choose a specific relief or a substitutionary one or a combination of the two if possible, as there is no mandatory sequence of the remedies for breach of contract in CCL. Pre-contractual obligations and liability for culpa in contrahendo With a lot of reference to foreign civil law theories and the provisions in PICC (arts. 2.15 and 2.16) and PECL (arts. 2:301 and 2:302), CCL makes a resemble provision (arts. 42 and 43). And these provisions are interpreted as pre-contractual obligations and the liability for culpa in contrahendo. Besides, art. 58 of CCL on effects of a void contract also includes some effects of the liability for culpa in contrahendo. Post-contractual obligations and post-contractual liability CCL makes a provision on post-contractual obligations (art. 92), according to which, even the contractual relationship is over, the parties shall perform obligations of notification, assistance and confidentiality in light of good faith and fair dealing and in accordance with trade practices. As to effects of breach of post-contractual obligation, there is no provision in CCL. In scholastic interpretation, it should be treated by liabilities for breach of contract. But postcontractual liability should not be treated as strict liability, it is a kind of fault liability. Liabilities for culpa in contrahendo Introduction The theory of culpa in contrahendo, which is first presented by German scholar Rudolf von Jhering in 1861 and is developed by German cases, has its influences in China. The influence Front. Law China (2006) 1: 121–152 127

128 Front.Law China(2006)1:121-152 is started by scholastic introductions about the theory.Some provisions of GPCL may be interpreted as partly on the effects of culpa in contrahendo (art.61).Arts.42 and 43 of CCL, with a lot of reference to PICC and PECL,are much perfect provisions on pre-contractual obligations and liabilities for culpa in contrahendo. A lot of discussions on the theory of culpa in contrahendo have been made in China.The main questions raised from the discussions include the scope of the theories'application,the scope of damages for culpa in contrahendo,etc.As to the legal basis for the liability,also there are several kinds of theories raised by German theories and cases,there is not so much divergence in China.In a generally accepted theory in China,a party should negotiate with due care in accordance with good faith and fair dealing,otherwise there will be a culpa in contrahendo.14 Key elements for the liabilities (when may it be applied?) As it has been generally accepted,if one party claims liabilities for culpa in contrahendo,the following requirements should be fulfilled.First,the parties contact each other with the aim of a contract.Second,one party breaches a pre-contractual obligation.Third,the party breaching a pre-contractual obligation has fault for the matter.Fourth,there are some losses occurred. And in Chinese law,there is no requirement that the other party must with a pair of clean hand. The party at fault shall compensate the other party for the loss caused by the fault.If both parties have faults,they shall bear their respective responsibilities(GPCL art.61 par.1;CCL art.58).It may be viewed as a kind of contributory negligence. The extend of its application According to whether the aimed contract validly formed or not,culpa in contrahendo may be divided into three types,namely type I the aimed contract not formed,type II the aimed contract void,and type III the aimed contract valid.The problem of type III was first raised and discussed in 1896 by a German Scholar named F.Leonhard.In 1910,Leonhard advocated his theory for the second time.A German court accepted Leonhard's theory in a case on 26 April 1912.From that time on,it has become a general viewpoint in Germany and Japan that culpa in contrahendo may be claimed even the aimed contract is valid.Unfortunately,the third type of culpa in contrahendo has not been accepted by the general civil law theory of China,also there are some different viewpoints on the question.So it is still a point in dispute in China. According to art.42 sent.2 of CCL,if one party conceals intentionally important facts related to the conclusion of the contract or providing false information,and thus causes loss to the other party,the party shall compensate for the loss.Though there is no word on whether the contract validly formed or not in art.42 sent.2,as it seems to me,it has left a space for such interpretation.So the third type of culpa in contrahendo may exist in Chinese law.And it may include situations where:(1)one party breaching its pre-contractual obligation to inform 13 Tze-chien Wang.Studies on civil law theories and cases,Vol 1.(1975),Taiwan. 4 See Jiafu Wang ed.,Law of obligation,(1991).Law Press China,p.339. is See Kenzo Miyamoto,Obligation ofcare for safety and the expansion of contractual liabilities.(1993).p.58

is started by scholastic introductions about the theory.13 Some provisions of GPCL may be interpreted as partly on the effects of culpa in contrahendo (art. 61). Arts. 42 and 43 of CCL, with a lot of reference to PICC and PECL, are much perfect provisions on pre-contractual obligations and liabilities for culpa in contrahendo. A lot of discussions on the theory of culpa in contrahendo have been made in China. The main questions raised from the discussions include the scope of the theories’ application, the scope of damages for culpa in contrahendo, etc. As to the legal basis for the liability, also there are several kinds of theories raised by German theories and cases, there is not so much divergence in China. In a generally accepted theory in China, a party should negotiate with due care in accordance with good faith and fair dealing, otherwise there will be a culpa in contrahendo. 14 Key elements for the liabilities (when may it be applied?) As it has been generally accepted, if one party claims liabilities for culpa in contrahendo, the following requirements should be fulfilled. First, the parties contact each other with the aim of a contract. Second, one party breaches a pre-contractual obligation. Third, the party breaching a pre-contractual obligation has fault for the matter. Fourth, there are some losses occurred. And in Chinese law, there is no requirement that the other party must with a pair of clean hand. The party at fault shall compensate the other party for the loss caused by the fault. If both parties have faults, they shall bear their respective responsibilities (GPCL art. 61 par. 1; CCL art. 58). It may be viewed as a kind of contributory negligence. The extend of its application According to whether the aimed contract validly formed or not, culpa in contrahendo may be divided into three types, namely type I the aimed contract not formed, type II the aimed contract void, and type III the aimed contract valid. The problem of type III was first raised and discussed in 1896 by a German Scholar named F. Leonhard. In 1910, Leonhard advocated his theory for the second time. A German court accepted Leonhard’s theory in a case on 26 April 1912. From that time on, it has become a general viewpoint in Germany and Japan that culpa in contrahendo may be claimed even the aimed contract is valid.15 Unfortunately, the third type of culpa in contrahendo has not been accepted by the general civil law theory of China, also there are some different viewpoints on the question. So it is still a point in dispute in China. According to art. 42 sent. 2 of CCL, if one party conceals intentionally important facts related to the conclusion of the contract or providing false information, and thus causes loss to the other party, the party shall compensate for the loss. Though there is no word on whether the contract validly formed or not in art. 42 sent. 2, as it seems to me, it has left a space for such interpretation. So the third type of culpa in contrahendo may exist in Chinese law. And it may include situations where: (1) one party breaching its pre-contractual obligation to inform 13 Tze-chien Wang, Studies on civil law theories and cases, Vol. 1, (1975), Taiwan. 14 See Jiafu Wang ed., Law of obligation, (1991), Law Press China, p.339. 15 See Kenzo Miyamoto, Obligation of care for safety and the expansion of contractual liabilities, (1993), p.58. 128 Front. Law China (2006) 1: 121–152

Front.Law China(2006)1:121-152 129 (CCL art.42 sent.2);(2)a voidable contract being modified (CCL art.54);and (3)a voidable contract becoming valid because the party who has the right to make the contract void losses its right(CCL art.55). Effects Damages As to a claim for damages because of culpa in contrahendo,there are two main questions. First,does what the aggrieved party may claim include expectation interest or just reliance interest?Second,if it is reliance interest,whether it shall not exceed the amount ofexpectation interest? In the general civil law theory of China,damages for culpa in contrahendo is limited to reliance interest,and not includes expectation interest.This is in accordance with the starting point of not admitting the third type culpa in contrahendo. According to German law,damages for reliance interest shall not exceed the amount of expectation interest.In Chinese law,there is no provision on this matter.And the Chinese scholastic viewpoints diverge very much.Someone thinks that reliance interest should not be limited by expectation,and all actual losses should be compensated.Others think that damages for reliance interest should not exceed the amount of expectation interest.18 As to the scope of damages for reliance interest,it is thought that the rule of foreseeability should be applied.Ofcourse,if the other party's body or property is harmed because ofone's failure to perform its obligation to protect the other,what the party guilty of the harm should compensate is called "perfectibility interest"or"maintenance interest,"and it should not be limited by expectation interest. Is a right to termination possible? As we have seen,the third type of culpa in contrahendo has not been accepted by the general civil law theory of China.So according to this kind of theory,it is illogical for a right to termination as to culpa in contrahendo.As a contrast,some Japanese scholars advocate that, as a measure to protect consumers,a right to termination should be one kind of effect of culpa in contralendo.20 Following the development of market economy in China,this kind of issues will be increased.As a response,the consumer may claim that the contract is voided because of deceit.Whether or not there should be a right to termination for the consumer is still a question needing further research. 16BGB arts.122,179 and the former art.307.As an English discussion on this topic.See Fuller&Perdue,The reliance interest in contract damages,(pt.1),46 Yale L.J.52,75-80. See Jianyuan Cui,On liability for culpa in contrahendo,in Social Sciences Journal of Jilin University.No.3 of1992. s See Guangxing Zhang,Law ofobligation in general,(1997).Law Press China,p.56. See Huixing Liang.Civil law.(1988).Sichuan Renmin Publishing House.p.144. See Zentaro Kitagawa,Studies on contractual liabilities,(1963),Yuhikaku,Japan,p.287;Jun'ichi Honda, On the Theori of "Culpa in Contrahendo",in Modern Contract Law Series,vol.1,(1983).Yuhikaku,Japan, p.207;Kenzo Miyamoto,Obligation of care for safety and the expansion of contractual liabilities,(1993). Tokyo,Japan,p.63

(CCL art. 42 sent. 2); (2) a voidable contract being modified (CCL art. 54); and (3) a voidable contract becoming valid because the party who has the right to make the contract void losses its right (CCL art. 55). Effects Damages As to a claim for damages because of culpa in contrahendo, there are two main questions. First, does what the aggrieved party may claim include expectation interest or just reliance interest? Second, if it is reliance interest, whether it shall not exceed the amount of expectation interest? In the general civil law theory of China, damages for culpa in contrahendo is limited to reliance interest, and not includes expectation interest. This is in accordance with the starting point of not admitting the third type culpa in contrahendo. According to German law, damages for reliance interest shall not exceed the amount of expectation interest.16 In Chinese law, there is no provision on this matter. And the Chinese scholastic viewpoints diverge very much. Someone thinks that reliance interest should not be limited by expectation, and all actual losses should be compensated.17 Others think that damages for reliance interest should not exceed the amount of expectation interest.18 As to the scope of damages for reliance interest, it is thought that the rule of foreseeability should be applied.19 Of course, if the other party’s body or property is harmed because of one’s failure to perform its obligation to protect the other, what the party guilty of the harm should compensate is called “perfectibility interest” or “maintenance interest,” and it should not be limited by expectation interest. Is a right to termination possible? As we have seen, the third type of culpa in contrahendo has not been accepted by the general civil law theory of China. So according to this kind of theory, it is illogical for a right to termination as to culpa in contrahendo. As a contrast, some Japanese scholars advocate that, as a measure to protect consumers, a right to termination should be one kind of effect of culpa in contrahendo. 20 Following the development of market economy in China, this kind of issues will be increased. As a response, the consumer may claim that the contract is voided because of deceit. Whether or not there should be a right to termination for the consumer is still a question needing further research. 16 BGB arts.122, 179 and the former art. 307. As an English discussion on this topic, See Fuller & Perdue, The reliance interest in contract damages, (pt.1), 46 Yale L. J. 52, 75–80. 17 See Jianyuan Cui, On liability for culpa in contrahendo, in Social Sciences Journal of Jilin University, No.3 of 1992. 18 See Guangxing Zhang, Law of obligation in general, (1997), Law Press China, p.56. 19 See Huixing Liang, Civil law, (1988), Sichuan Renmin Publishing House, p.144. 20 See Zentaro Kitagawa, Studies on contractual liabilities, (1963), Yuhikaku, Japan, p.287; Jun’ichi Honda, On the Theori of “Culpa in Contrahendo”, in Modern Contract Law Series, vol.1, (1983), Yuhikaku, Japan, p.207; Kenzo Miyamoto, Obligation of care for safety and the expansion of contractual liabilities, (1993), Tokyo, Japan, p.63. Front. Law China (2006) 1: 121–152 129

130 Front.Law China(2006)1:121-152 Anticipatory breach Introduction Before the time due for performance,it may happen that the obligor expressly refuse to perform the contract,or it may become clear that the obligor,though does not refuse to perform,will be unable to perform the contract on the time due for performance.How to cope with this kind of obstacles of performance is so important a topic that it has attracted a lot of discussion between Chinese scholars before the enactment of CCL.The viewpoints may be divided into two categories.One category insisted that Chinese contract law should follow German law on this point,which means the remedy is to suspend performance as stipulated by art.321 of BGB(defense of insecurity).The other category suggested that Common Law's rule of"anticipatory breach of contract"is much better than the German rule.As art.321 of BGB only gives the other party a right to refuse to perform,2 while the Common Law rule gives the other party a further protection by permitting it seeking damages or other remedies even before the time due for performance.CCL adopts this suggestion(arts.108 and 94 sent.2).But it also has an article on defense of insecurity (CCL art.68). When may call it an anticipatory breach? According to art.108 ofCCL,there are two types of situations that can amount an anticipatory of breach.The first one is that a party explicitly expresses its intention not to perform its obligation,and it may be called anticipatory renunciation.The second type is that a party indicates by act its intention not to perform its obligation,and it may be called anticipatory disablement.Whether or not there is an anticipatory breach should be discussed separately. Where there is an anticipatory renunciation,the obligor's intention is clear and the future performance is not expectable.So it may be recognized as an anticipatory breach directly. As to the second type of situation,the obligor does not expressly refuse to perform its obligation,so it may not be recognized as an anticipatory breach promptly.Here it is necessary for the obligee to take some measures to make the matter clear.According to art.68 par.I of CCL,the party which ought to perform first may suspend its performance if it has exact evidence to prove that the other party falls under any of the following situations:(1) business operations seriously deteriorating;(2)diverting properties and withdrawing capital to evade debts;(3)falling into business discredit;or(4)other situations showing inability or possible inability to perform its obligations.Where the party suspend its performance in accordance with art.68 of CCL,it shall promptly notify the other party of the suspension.The party shall resume its performance when the other party provides a guarantee.The party that has suspended its performance may terminate the contract if the other party has failed to regain its capability to perform and to provide a guarantee within a reasonable period of time (CCL art.69).Here the termination of contract premises that the other party falls into a kind of anticipatory breach. 2This is the former rule of art.321 of BGB.It should be noted that the new art.321 par.2 permit the party required to perform first a night to termination. See Shiyuan Han Jianyuan Cui,Anticipatory breach and Chinese contract law,in CASS Journal of Law, No.3of1993

Anticipatory breach Introduction Before the time due for performance, it may happen that the obligor expressly refuse to perform the contract, or it may become clear that the obligor, though does not refuse to perform, will be unable to perform the contract on the time due for performance. How to cope with this kind of obstacles of performance is so important a topic that it has attracted a lot of discussion between Chinese scholars before the enactment of CCL. The viewpoints may be divided into two categories. One category insisted that Chinese contract law should follow German law on this point, which means the remedy is to suspend performance as stipulated by art. 321 of BGB (defense of insecurity). The other category suggested that Common Law’s rule of “anticipatory breach of contract” is much better than the German rule. As art. 321 of BGB only gives the other party a right to refuse to perform,21 while the Common Law rule gives the other party a further protection by permitting it seeking damages or other remedies even before the time due for performance.22 CCL adopts this suggestion (arts. 108 and 94 sent. 2). But it also has an article on defense of insecurity (CCL art. 68). When may call it an anticipatory breach? According to art. 108 of CCL, there are two types of situations that can amount an anticipatory of breach. The first one is that a party explicitly expresses its intention not to perform its obligation, and it may be called anticipatory renunciation. The second type is that a party indicates by act its intention not to perform its obligation, and it may be called anticipatory disablement. Whether or not there is an anticipatory breach should be discussed separately. Where there is an anticipatory renunciation, the obligor’s intention is clear and the future performance is not expectable. So it may be recognized as an anticipatory breach directly. As to the second type of situation, the obligor does not expressly refuse to perform its obligation, so it may not be recognized as an anticipatory breach promptly. Here it is necessary for the obligee to take some measures to make the matter clear. According to art. 68 par. 1 of CCL, the party which ought to perform first may suspend its performance if it has exact evidence to prove that the other party falls under any of the following situations: (1) business operations seriously deteriorating; (2) diverting properties and withdrawing capital to evade debts; (3) falling into business discredit; or (4) other situations showing inability or possible inability to perform its obligations. Where the party suspend its performance in accordance with art. 68 of CCL, it shall promptly notify the other party of the suspension. The party shall resume its performance when the other party provides a guarantee. The party that has suspended its performance may terminate the contract if the other party has failed to regain its capability to perform and to provide a guarantee within a reasonable period of time (CCL art. 69). Here the termination of contract premises that the other party falls into a kind of anticipatory breach. 21 This is the former rule of art. 321 of BGB. It should be noted that the new art. 321 par. 2 permit the party required to perform first a right to termination. 22 See Shiyuan Han & Jianyuan Cui, Anticipatory breach and Chinese contract law, in CASS Journal of Law, No.3 of 1993. 130 Front. Law China (2006) 1: 121–152

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上海交通大学：《Chinese Contract Law》课程教学资源_Reading Materials_Liabilities in Contract Law of China：Their Mechanism and Points in Dispute