On The Applicable Breach Of Contract Damages Of Mitigation

Damage compensation is the most common form in contract responsibility,and a relief way to fully protect the interests of victims. The application of principle of mitigation is designed to limit damage compensation to a reasonable range.The principle of mitigation is a rule originating from British and American common laws,and now it has been acknowledged and accepted by the legislations and cases in almost all countries. This rule was successively defined in "General Principles of Civil Law" and in "Contract Law" of our country, and further explained by the new "Judicial Interpretation on Buying and Selling Contract" issued by the Supreme People’s Court in2012, but these explanations are slightly abstract, not conducive to the specific applications in judicial practices; also, the academic papers in this aspect in our country are too few, and the generalization is relatively simple. Therefore, this paper makes a comprehensive introduction to the definition, nature and legal basis of the principle of mitigation, focuses on the reasonable measures of the principle of mitigation; then it makes analysis to the essential question, which is the scope and effect of the application of principle of mitigation in judicial practice, to present the ways to apply the principle of mitigation in specific judicial practices and put forward suggestions to further improve this rule.The content of this paper is divided into four chapters:Chapter One, Introduction to the Principle of Mitigation in Damage Compensation.It mainly explores the origin of the principle of mitigation, and introduces its definition, nature and legal basis. After overall generalization and accurate positioning to the principle of mitigation, is comes to the conclusion that mitigation is a kind of "unreal obligation";and its legal basis is the combination of the causal relationship theory and economic efficiency theory.Chapter Two, Reasonable Measures of the Principle of Mitigation. This chapter mainly analyzes the judicial practices of the principle of mitigation, which is just its reasonable judgment, and also systematically analyzes the reasonableness from objective standard and subjective standard-goodwill standard and economy standard. Besides, several specific measures of the principle of mitigation are introduced, including stopping performance, continuing performance, alternative trade and accepting the offer of modification of contract.Chapter Three, Application Range and Effect of the Principle of Mitigation. This chapter firstly emphasizes the application of the principle of mitigation in anticipatory breach of contract, then expounds the ways to coordinate the relationship between the principle of mitigation and the continuing of performance, and at last explains the legal effects of the application of the principle of mitigation.Chapter Four, Perfection of the Principle of Mitigation. This part mainly analyzes the legislation and application status of principle of mitigation in China, points out the existing problems, puts forward judicial suggestions to make perfection to it, in hope of making some contributions to the legal theory of principle of mitigation in damage compensation in our country.