136 Front.Law China(2006)1:121-152 noticeable that there are some new theories on the interpretation of art.416 of JCC raised in these years.34 The advocators of the new theories insist that the interpretation of art.416 of JCC should go back to its fountainhead (namely Common Law and French law).I think the evolution of the interpretation of art.416 of JCC will be a good lesson for Chinese civil law. Elements for reducing damages Contributory negligence Contributory Negligence,as an important rule for reducing damages,had been formulated in several drafts of CCL,but it is finally replaced by an article on"Both Parties in Breach." GPCL has an article on"Both Parties in Breach"(art.113).CCL lays down the rule once more,namely "where both parties breach the contract,they shall bear their respective liabilities accordingly(art.120)."Whether or not can there be a legal concept of"Both Parties in Breach"had been a point in dispute in China.35 Nowadays it appears that,in some special cases,there may be a situation of"both parties in breach."As it is a natural reasoning that for both parties to bear their respective liabilities accordingly,so there will be no problem even if there is no provision on the issue in contract law.Moreover,a provision on"Both Parties in Breach"is very rare in comparative law.So in the draft of Civil Code of China,it is necessary to replace the art.120 of CCL by a rule on Contributory Negligence. If we make a comparison between Contributory Negligence and"Both Parties in Breach," we can find that,it is only one party that has loss in a case of Contributory Negligence.Its characteristic is that the aggrieved party also has a fault for or has contributed to the occurrence of the loss.While in a case of"Both Parties in Breach,"both parties of a reciprocal contract failed in the performance of their obligations,and it is possible for them to cause each other a loss.Its characteristic is that there are two breaches and two pieces of loss.So Contributory Negligence and "Both Parties in Breach"are not the same matter. As there is no special article in CCL on contributory negligence,it is a gap in law.In order to fill the gap in CCL,it is suggested that art.131 of GPCL,an article on contributory negligence for torts,should be extended by interpretation to cover contract cases.As to the drafting of Civil Code of China,it is still a question whether to formulate contributory negligence in one article or like JCC to dispart it in two articles.36 34See Yoshio Hirai,A theory of law of compensation,(1971).Tokyo University Press;Minori Ishida,A re- construction of law of compensation,(1977).Tokyo University Press. 35 See Huixing Liang.Studies on civil law theories,cases and legislation,(1993).Chinese Politics and Law University Press,p.82:Liming Wang.On the defence of concurrent performance in a reciprocal contract,in Civil and commercial law review,vol.3,(1995),Law Press China,p.27.As a Common Law account on the issue,see G.H.Treitel,The law of contract,(9th ed.1995).pp.736-737. 36 In JCC,art.418 is on contributory negligence in a contract case,while art.722 is on contributory negligence in a tort case.noticeable that there are some new theories on the interpretation of art. 416 of JCC raised in these years.34 The advocators of the new theories insist that the interpretation of art. 416 of JCC should go back to its fountainhead (namely Common Law and French law). I think the evolution of the interpretation of art. 416 of JCC will be a good lesson for Chinese civil law. Elements for reducing damages Contributory negligence Contributory Negligence, as an important rule for reducing damages, had been formulated in several drafts of CCL, but it is finally replaced by an article on “Both Parties in Breach.” GPCL has an article on “Both Parties in Breach” (art. 113). CCL lays down the rule once more, namely “where both parties breach the contract, they shall bear their respective liabilities accordingly (art. 120).” Whether or not can there be a legal concept of “Both Parties in Breach” had been a point in dispute in China.35 Nowadays it appears that, in some special cases, there may be a situation of “both parties in breach.” As it is a natural reasoning that for both parties to bear their respective liabilities accordingly, so there will be no problem even if there is no provision on the issue in contract law. Moreover, a provision on “Both Parties in Breach” is very rare in comparative law. So in the draft of Civil Code of China, it is necessary to replace the art. 120 of CCL by a rule on Contributory Negligence. If we make a comparison between Contributory Negligence and “Both Parties in Breach,” we can find that, it is only one party that has loss in a case of Contributory Negligence. Its characteristic is that the aggrieved party also has a fault for or has contributed to the occurrence of the loss. While in a case of “Both Parties in Breach,” both parties of a reciprocal contract failed in the performance of their obligations, and it is possible for them to cause each other a loss. Its characteristic is that there are two breaches and two pieces of loss. So Contributory Negligence and “Both Parties in Breach” are not the same matter. As there is no special article in CCL on contributory negligence, it is a gap in law. In order to fill the gap in CCL, it is suggested that art. 131 of GPCL, an article on contributory negligence for torts, should be extended by interpretation to cover contract cases. As to the drafting of Civil Code of China, it is still a question whether to formulate contributory negligence in one article or like JCC to dispart it in two articles.36 34 See Yoshio Hirai, A theory of law of compensation, (1971), Tokyo University Press; Minori Ishida, A re￾construction of law of compensation, (1977), Tokyo University Press. 35 See Huixing Liang, Studies on civil law theories, cases and legislation, (1993), Chinese Politics and Law University Press, p.82; Liming Wang, On the defence of concurrent performance in a reciprocal contract, in Civil and commercial law review, vol.3, (1995), Law Press China, p.27. As a Common Law account on the issue, see G. H. Treitel, The law of contract, (9th ed. 1995), pp.736–737. 36 In JCC, art.418 is on contributory negligence in a contract case, while art. 722 is on contributory negligence in a tort case. 136 Front. Law China (2006) 1: 121–152