The Studies On Mitigation In Damages

The rule of mitigation originated from Anglo-American Common Law.As one of the principles for limiting the scope of damages,it plays a vital role in determining the amount of damages that the right holder can obtain.Now,it has been accepted by most countries’ legislation and jurisprudence.The legislation on mitigation of Chinese current civil law system is mainly embodied in Article 591 of the “Civil Code of the People’s Republic of China”(hereinafter referred to as the “Civil Code”).But because this article is rather brief,it needs to be embodiment when it is applied in judicial practice.This article compares and analyzes the rule of mitigation and other confusing rules,expounds the appropriateness standards and the typification of derogation measures,and discusses the application of mitigation and legal consequences in the context of two types of breaches,with a view to providing useful reference in judicial practice.This article is divided into four chapters.The first is a comparative analysis of the relationship between the rule of mitigation and relevant rules.The relevant rules are mainly the contributory negligence and the profit and loss rule,which are also other limiting rules for the scope of damages for breach of contract.The first section of this chapter analyzes the relationship between the mitigation and the negligence.Through the comparison of the relationship between comparative study and the different views of Chinese scholars,the part analyzes the differences of the two.After discussion,it was concluded that the coexistence legislation of the mitigation and the negligence is more conducive to the promotion of judicial substantive justice,and when calculating the specific damages for breach of contract,the judge should calculate the liability for losses in stages,apply the negligence offset during the occurrence stage,and apply the mitigation during the expand stage.The second section of this chapter focuses on the mitigation and the profit and loss.Starting from the legal characteristics,the status quo of legislation in various countries and the theoretical basis of the profit and loss,and discussing the relationship between the two in combination with scholars’ viewpoints,it is believed that the mitigation cannot be covered by the profit and loss.In judicial practice,the two rules and other restrictive rules should be used in a comprehensive manner to accurately determine the scope of damages together.The second chapter puts forward the core issue in the mitigation —the judgment of“appropriate measures”.This chapter starts with the judgment standards of three theories: the reasonable person standard,the subjective goodwill standard,and the economic standard.Then the chapter determines criteria for judging the appropriateness of derogation measures.This article summarizes the above three criteria and concludes that a combination of reasonable human standards and subjective goodwill standards should be adopted,and the economic factors should be referenced at the same time.And the chapter explain the choice through the examples.The second section is to combine the long-term relevant judicial precedents in judicial practice to sort out the complex and diverse derogation measures that meet the appropriateness standards according to types.The main derogation measures proposed in this article include: suspension of performance,conclusion of alternative contracts,continued performance,and timely Dissolved the contract,accepted the new offer.And it listed relevant cases in this chapter.The third chapter is to discuss and study the issue of how the mitigation should be applied in the two default forms of anticipatory breach and actual default.The first section mainly focuses on whether the aggrieved party is required to undertake mitigation obligations under the anticipatory breach,and how to coordinate the mitigation rules and the actual performance of the remedy under the default form.By comparing the provisions of the United Kingdom and the United States on the mitigation obligations of the aggrieved party under the anticipatory breach and researching on the viewpoints of Chinese scholars,this article believes that when non-breaching party admits the other party’s behaviour,it should bear the obligation of mitigation.If it does not recognize,whether to undertake the obligation of mitigation cannot be generalized.We need discuss this one based on the coordination of the mitigation and the actual performance of the relief right.The second section of this chapter studies the application of the derogation rule under actual breach of contract.First,by studying the choice of two remedies for compensation for losses under actual breach of contract and actual performance in different countries,it is found that common law countries mainly rely on the principle of compensation for losses.Civil law countries are based on actual performance,while our country is based on the independent decision of the parties.Secondly,it learns from the coordination of the conflicts between the mitigation and actual performance relief rights in different countries to resolve the conflicts of our country.This article believes that it should be respected the choice of the parties,and the actual performance of the right to relief should also be further restricted.The fourth chapter discusses the legal consequences of applying the mitigation for the limitation of the derogation rules on the scope of compensation for breach of contract damages,the burden of taking mitigation measures and the burden of proof,as well as the treatment of the additional benefits obtained by the compensation right holder in the process of taking mitigation measures.In the first section,this article uses examples to specifically illustrate that the mitigation rules shall not impose excessive liability on the observant party,nor can it become a system that encourages the parties to breach the contract.When the obligor of compensation enjoy the right benefits from the appropriate measures by rights holder after the breach of the contract,they also need accept the unfavorable consequences.The second section,through consideration of the purpose of establishing the derogation rule and fairness and justice,this article believes that the reasonable expenditure of taking appropriate measures shall be borne by the obligor of compensation.And the obligor of compensation shall bear the burden of proof.The third section is about the treatment of additional impairment gains,combined with the above analysis of the relationship between the mitigation and the profit and loss,and concludes that the gains obtained from mitigation measures within a reasonable limit belong to the obligor of compensation.