On Breach Of Contract Discharge From The Obligation To Pay

In modern society,the law of obligation's theory has been developed rapidly.One of the types of contract obligation is nebenleistungspflicht.Nebenleistungspflicht is one of the contractual obligations,and the understanding and research on the nebenleistungspflicht is not mature in both the theoretical and judicial practical.Although the contract law stipulates the principle of nebenleistungspflicht in the contract part,the type of nebenleistungspflicht is still to be discussed,and there is still no conclusion on whether the debtor's violation of nebenleistungspflicht leads to the right to terminate the contract.On the one hand,this leads to the absence of the logical structure,on the other hand,it cannot provide an adequate defective judicial remedy to the injured party.At the same time,the academic community has theoretical disagreement over the legal consequences of the violation of nebenleistungspflicht,so it is still unable to reach a consensus,and it is unable to provide the universally recognized theoretical guidance for the legal practice community.As a result,the judge cannot rely on the general provisions of the contract law on nebenleistungspflich,and then make an empirical judgment based on the specific case.The application standard of leniency and strictness is different and the judge has more discretion,which will lead to the appearance of different judgments in the same case and affect the universality and authority of the law.Therefore,the purpose of this paper is to discuss whether the debtor's violation of nebenleistungspflich can lead to the creditor's legal right of rescission,and the effect between the parties is just like the law,whose purpose is to maintain the normal transaction order and regulate the process of Commodity Exchange.The contract law of all countries starts from the purpose of encouraging the commodity transaction and stabilizing the transaction order,and prohibits the arbitrary discretionary power and termination of the effective contract.And "release" as a means to completely cut off the legal relationship that has been bound between the parties in accordance with the contract,so that the parties can get rid of the contract which has been unable to continue to perform or the purpose of the contract cannot be realized.Therefore,the contract law allows the parties to terminate the contract under certain circumstances,so as to get rid of the uninterest caused by the contract.As the ultimate judicial remedy of the contract parties,the conditions for the termination of the contract are undoubtedly strict.It is specifically divided into the following three parts:The first part of this paper mainly puts forward the practical dilemma of the contract relative petitioning for the termination of the contract in judicial practice,mainly in the theoretical and judicial practice,the relevant legal provisions and theoretical research on nebenleistungspflicht are insufficient,and there are different opinions on the definition of the concept of payment,resulting in a large number of similar adjudication phenomena in practice.In addition,the judge's decision is based on the previous relevant cases for judgment,which leads to the waste of judicial resources.In the second part,the definition of nebenleistungspflicht would be compared with the nebenpflicht and hauptleistungspflicht.At the same time,I will summarize the ideas about the legal consequences when breach of the nebenleistungspflicht in contact in order to pave the way for the following discussion on the rescission of contract.Next,the two ways of contract rescission,legal rescission and engagement rescission,are elaborated in detail.From the perspective of the concepts and interpretations of "fundamental breach" and "contract purpose",the conditions of rescission right are analyzed.By comparing the provisions of "fundamental breach" in some other countries,the relationship between the mand contract rescission is discussed,based on the principle of contract interpretation explains the meaning of "contract purpose" by the means of "objectivism and subjectivism" and analyzes the position and significance of contract purpose in the right to rescind the contract in case of violating the obligation of performance.In the third part,according to the different ways in which nebenleistungspflich assists the hauptleistungspflicht,the Nebenleistungspflich is classified,and the cases who wants to have the right to terminate the contract are selected,which are not fully performed in contract.These cases are classified into different types,and the characteristics of different types,as well as the judgment ideas and dispute summary of this type are also classified in order to provide rules guidance for judicial practice.