Research On Liability For Breach Of Contract By Appointment

An appointment refers to a contract in which the parties agree to conclude this contract within a certain period of time.In 2012,the Supreme people’s Court issued the interpretation of the Supreme people’s Court on the Application of legal issues in hearing disputes over Sale contracts(hereinafter referred to as "Judicial interpretation of Sale contracts").In the judicial interpretation,it is clearly stipulated that the defaulting party who violates the appointment contract should be liable for breach of contract.The judicial interpretation fills the gap of the appointment contract in law for the first time.However,it does not directly specify the form of liability for breach of appointment contract and the scope of liability for compensation for breach of appointment contract.The Civil Code formally stipulates the appointment contract in Article 495,and it does not directly stipulate the scope of liability of the defaulting party when it bears the liability for damages.In academic circles,many scholars have different understanding of the theory of liability for breach of contract by appointment.In judicial practice,the vacancy of legal rules also leads to the confusion of judicial adjudication.Judges do not have clear legal rules as a support when resolving relevant disputes,and more often use discretion to adjudicate cases.The liability for breach of contract by appointment is extremely complex,and the relevant applicable rules need to be clearly defined in law.We can construct a complete liability system for breach of contract by amending the existing law or making special judicial interpretation.First of all,the article analyzes the effectiveness of the reservation contract.This is mainly because the validity of the appointment contract will directly affect the determination of breach of contract,and then affect the way in which the actor is responsible for breach of contract.There are three main viewpoints about the validity of appointment contract.They are the theory that it is necessary to sign a contract,the theory that it is necessary to consult and the theory of content decision.After expounding the legal considerations and value trade-offs behind various theories,the article thinks that it is more reasonable to use the content determination theory to determine the effectiveness of the appointment contract.The appointment contract is classified according to the degree of integrity of the content,which is divided into negotiation reservation and contracting reservation.Different types of appointment contracts have different legal binding force on the parties,so it also affects the specific form of liability for breach of contract.The liability for breach of contract of appointment contract has its particularity,which is shown in two aspects: the nature of responsibility and the form of liability.As far as various forms of liability are concerned,the form of continuing to perform the responsibility should be one of the ways of undertaking the responsibility of the reservation contract.The party in the reservation contract may request the other party to continue to perform the obligation of the reservation contract to conclude this contract.At the same time,the application of this form of liability is excluded in the case of legal or factual non-performance and in accordance with the principle of change of circumstances.The compensation scope of liability for losses varies according to the type of appointment contract.In the negotiation appointment,the scope of compensation is limited to the trust interest,and the loss of opportunity should not be completely negated.The court shall decide whether to support the claim for loss of opportunity according to the specific circumstances of the case.The scope of compensation for contractual appointments is limited to the interests of performance,focusing on the actual losses of the parties.In the case of no clear agreement between the parties,the deposit in the appointment contract has the dual nature of both contract deposit and breach of contract deposit,and the relevant provisions of deposit penalty are also applicable.In the case that both deposit and liquidated damages are agreed upon,the parties shall choose one of the rights to apply at will.In addition,although there is no provision in the current law,the appointment contract should also be subject to the restrictions on the amount of deposit in the Civil Code.In order to reduce contract disputes,the parties can agree on the termination deposit in the appointment contract in advance and exercise the right to terminate the contract by giving up the deposit.