A Study Of The Judicial Application Of The Obligation Of Contractual Tolerance

In order to improve the efficiency of contract dispute resolution,there has long been a practice in China’s judicial practice of imposing a certain obligation to tolerate minor breaches of contract and not to pursue legal responsibility.The obligation of tolerance is of great significance for resolving contract disputes,but it is not a clearly defined obligation in China’s civil law system.The theoretical basis of the duty to tolerate in contracts has not been agreed upon by the academic community,and there are discrepancies in the identification criteria and judgment of the duty to tolerate in the practical community.The study of contractual duty of tolerance can help clarify its jurisprudential basis and improve the identifiable criteria of reasonable limits,so as to guide judges to establish a multifaceted and multi-level trial thinking in accordance with the characteristics of contracts.The full text is divided into four sections,except for the introduction and conclusion:The first part is the definition and identification of the obligation to tolerate.An understanding of the broad duty to tolerate is a prerequisite and basis for exploring the logical construction of the contractual duty to tolerate.By examining the theory of the duty of tolerance in the broad sense,similar concepts are identified and compared,and the differences between them and the duty of omission and the prohibition of abuse of rights and powers are clarified respectively.The theoretical analysis of the broad duty to tolerate leads to the conclusion that the jurisprudence underlying the application of the duty to tolerate contracts is based on the theory of defective transactions,the idea of reconciliation between the individual and society and the theory of normalisation of the social order.The second part deals with the judicial status of the contractual duty of tolerance.It explores the continuous attempts and advancement of the legalisation of the duty of tolerance in the academic world,and examines the current legislative attitude towards the duty of tolerance and the possibility of its legalisation.It then shifts the perspective from legislation to practice,and analyses the decisions on contractual disputes in which the duty to tolerate has been applied from both macro and micro perspectives,analysing the impact of factors such as material impact,prior foresight,public interest,contractual characteristics and the principle of encouraging transactions on the decisions,in order to gain a more objective and comprehensive understanding of the judicial application of the duty to tolerate in contracts from different perspectives.The third part analyses the problems exist in China’s judicial practice.There are many problems in the application of the extended duty of tolerance to the contractual field,such as the lack of a clear legal basis,the lack of rigorous argumentation in court decisions,the rigidity of court decisions,the overreliance on external criteria in determining the limits of tolerance,the abuse of public interest decisions,the failure to take into account the characteristics of the contract and the absence of the right to claim compensation.The fourth part focuses on measures to optimise the adjudication of contractual tolerance obligations.In view of the problems in judicial practice,the following improvement measures are drawn up with reference to theoretical studies and relevant jurisprudence at home and abroad: firstly,advocating the inclusion of the duty of tolerance in the law to solve the problem of questionable legality of the duty of tolerance;secondly,deepening the understanding of material damage.Thirdly,to construct a multi-criteria and multi-level judgment mechanism for the obligation of contractual tolerance,emphasising the criteria for judging public interest and the circumstances of its application;fourthly,to procedurally supervise and improve contractual disputes involving public interest and prevent the courts from abusing public interest to the detriment of the lawful rights and interests of the obligor;fifthly,to emphasise the right to request compensation and relief for those who have assumed the obligation of tolerance,and to clarify that when a party to a contract suffers substantial damage as a result of the obligation of tolerance the right to relief.