134 Front.Law China(2006)1:121-152 Availability of damages In an action claiming damages for breach of a contract,a Chinese court will check the case by four factors,namely whether there is a breach,whether the plaintiff suffered any damage or loss,whether the breach is the causation of the damage,and whether the defendant has a reason for exemption. Breach of contract First,there should be a breach of contract,namely a party "fails to perform its obligations under the contract or does not perform its obligations as contracted"(CCL arts.113 and 112). As being previously pointed out,no only breach of Leistungspflicht,but also breach of ancillary obligations,may constitute a breach of contract.Thought CCL distinguishes"fails to perform the obligations"and"does not perform obligations as contracted,"their effects are not affected by the distinction. Damage The damage or loss caused by a breach is mainly on the aggrieved party's property,but sometime a breach may also cause the aggrieved party mental suffering.Before the enactment of CCL,Chinese law had no provision on whether this kind of non-pecuniary loss may be compensated in a contract action.Scholar's viewpoints on the problem diverged sharply.The former general theory gives a negative answer.27 Those who gave a positive answer belonged to minority.But in practice,some special cases were raised in China.In these cases,the film sent for wash and print was lost by the photo-shop;the bone ash was lost by a funeral home to which it was consigned;a girl expecting an improvement of her looks was left with a disfigurement by the fault of a beauty shop.In each of these cases,there is a kind of non- pecuniary loss,and there is a contract between the parties.So it is necessary to re-raise and re- think whether non-pecuniary loss can be claimed in a contract action.My viewpoint on the problem is that the court should approve the aggrieved party claim for non-pecuniary loss even in a contract action.If we look at the problem from comparative laws,we can see that many law systems permit non-pecuniary loss in a contract action.Especially,PICC and PECL both state that the loss for which damages are recoverable includes non-pecuniary loss.3 Now CCL has left a space for such kind of interpretation (art.112). 27 See Huixing Liang,Civil law,(1988),p.420;Jiafu Wang ed.Lawofobligarion,(1991),p.247:Liming Wang. On liabilities for breach of contract,(1996).Chinese Politics and Law University Press,p.400. 2 See Jianyuan Cui,Studies on contractual liabilities,(1992),p.197. 2 See Shiyuan Han,Non-pecuniary loss and contractual liability,in Legal Science,no.6 1998:Shiyuan Han, Studies on damages for breach of contract,(1999),Law Press China,pp.37-47. 30 PICC art.7.4.2 par.2;PECL art.9:501 par.(2)sent.(a).Availability of damages In an action claiming damages for breach of a contract, a Chinese court will check the case by four factors, namely whether there is a breach, whether the plaintiff suffered any damage or loss, whether the breach is the causation of the damage, and whether the defendant has a reason for exemption. Breach of contract First, there should be a breach of contract, namely a party “fails to perform its obligations under the contract or does not perform its obligations as contracted”(CCL arts. 113 and 112). As being previously pointed out, no only breach of Leistungspflicht, but also breach of ancillary obligations, may constitute a breach of contract. Thought CCL distinguishes “fails to perform the obligations” and “does not perform obligations as contracted,” their effects are not affected by the distinction. Damage The damage or loss caused by a breach is mainly on the aggrieved party’s property, but sometime a breach may also cause the aggrieved party mental suffering. Before the enactment of CCL, Chinese law had no provision on whether this kind of non-pecuniary loss may be compensated in a contract action. Scholar’s viewpoints on the problem diverged sharply. The former general theory gives a negative answer.27 Those who gave a positive answer belonged to minority.28 But in practice, some special cases were raised in China. In these cases, the film sent for wash and print was lost by the photo-shop; the bone ash was lost by a funeral home to which it was consigned; a girl expecting an improvement of her looks was left with a disfigurement by the fault of a beauty shop. In each of these cases, there is a kind of non￾pecuniary loss, and there is a contract between the parties. So it is necessary to re-raise and re￾think whether non-pecuniary loss can be claimed in a contract action. My viewpoint on the problem is that the court should approve the aggrieved party claim for non-pecuniary loss even in a contract action.29 If we look at the problem from comparative laws, we can see that many law systems permit non-pecuniary loss in a contract action. Especially, PICC and PECL both state that the loss for which damages are recoverable includes non-pecuniary loss.30 Now CCL has left a space for such kind of interpretation (art. 112). 27 See Huixing Liang, Civil law, (1988), p.420; Jiafu Wang ed., Law of obligation, (1991), p.247; Liming Wang, On liabilities for breach of contract, (1996), Chinese Politics and Law University Press, p.400. 28 See Jianyuan Cui, Studies on contractual liabilities, (1992), p.197. 29 See Shiyuan Han, Non-pecuniary loss and contractual liability, in Legal Science, no.6 1998; Shiyuan Han, Studies on damages for breach of contract, (1999), Law Press China, pp.37–47. 30 PICC art.7.4.2 par.2; PECL art.9:501 par.(2) sent.(a). 134 Front. Law China (2006) 1: 121–152