On The Law Of The Contracting Negligence Applies

The doctrine of contracting fault has deeply influenced the Continental law system as well as Anglo-American law system since the doctrine was created in 1861 by a famous German Jurist, Jhering. Till now the system of contracting fault liability has introduced into a great many countries including China. The system of contracting fault liability was put into the Contract Law of P.R. china promulgated on March 15,1999 in a rather self-contained way. But, in the other hand, the system has been interpreted or followed in a wring or confusion way in the judicial practice. This article is interpret the contracting fault liability in detail on the basis of an analysis of some real cases in terms of the origination of contrasting fault liability and its legislation in foreign countries. This article first defines the concept of contracting fault liability, i.e. the responsibility one party to the contract should take of one party breaches pre-contract obligations and causes damage to the counter party in the course of concluding a contract. It then analyses the theoretical basis of the contracting fault liability, the principle of good faith. The author points out that its constitutive requirements include the act of one party who breaches the pre-contract obligations, subjective fault of the party who breaches the pre-contract obligations, damages suffered by the aggrieved party, and the causation relation between the act in violation of the pre-contract obligations and the harmfulconsequence. The article further expounds the scope of application of the contracting fault liability, which includes the non-formation of the contract, invalidity of the contract, cancellation of the contract, the contract being formed but not coming into effect, the scope of compensation for the contracting fault liability should be confined to trust interest losses. After discussing the limitation of actions and the burden of adducing evidence with respect to the contracting fault liability compensation, the article finally gives comments to the Contract Law of P.R. China regarding its stipulations on the contracting fault liability and analyses the real cases according to the provisions of the Contract Law of P.R. China for the purpose of improving the level of judiciary in China.