合同救济方法之选择与适用

当事人订立的合法有效的合同具有约束力,当事人应当按照合同的约定履行自己的合同义务。但实际生活中却往往出现当事人违反合同义务的行为,即违约行为。在现有立法的框架下,由于合同救济方法和途径的多样化,使得当事人和人民法院不可避免地会遇到合同救济方法的选择与实用问题。本文对此展开了讨论。     

On the enforcement of specific performance in Civil Law countries

Proponents of specific performance as a remedy for breach of contract have found support in the alleged use of the remedy in Civil Law countries. However, we provide evidence that specific performance is in fact a rare remedy in Denmark, Germany and France, and under CISG, when performance requires actions to be undertaken, and we relate this to costs of enforcement. We argue that it is administratively costly to run a system of enforcement that renders specific performance attractive to the aggrieved party, and that the Civil Law countries have (like Common Law countries) chosen not to incur these costs of enforcement. This is especially clear in the case of Denmark, where specific performance of actions has been abandoned as a legal remedy.At the normative level, we argue that enforcement costs provides an additional rationale, over and above the rationales of the theory of efficient breach, for damages and against specific performance as the general remedy.     

Damages for Breach of Contract: Compensation, Restitution and Vindication

In this article we examine the role which vindication playsin contract damages. Vindication describes the making good ofa right by the award of an adequate remedy. We argue that, whilethe primary purpose of compensation is to provide an indemnityfor loss, an award of compensatory damages will neverthelessgenerally vindicate the right to performance of the contract.We go on to consider a distinct measure of damages, vindicatorydamages. These, we argue, are neither compensatory nor restitutionary,neither loss-based nor gain-based: they are a rights-based remedy.We then identify various situations in which the courts maybe seen to have awarded what are, in substance, vindicatorydamages. We conclude by considering the benefits which may followfrom recognition of the availability of vindicatory damagesas a contract remedy.     

Performance and Compensation: An Analysis of Contract Damages and Contractual Obligation

Although there is an increasing body of opinion that awardsof damages for breach of contract should take account of theclaimant’s performance interest, there has been littlein the way of analysis of what the performance interest is.Commonly the concept is put forward as simply a reformulationor reconceptualization of the expectation interest, itself hithertoregarded as the one true contractual interest. Such thinkingis flawed. A closer analysis of contract doctrine shows thereto be two distinct contractual interests; in receiving performance,and in being compensated for losses caused by non-performance.Receiving compensatory damages for non-performance is not thesame as receiving performance. At present, this important differenceis not fully appreciated, resulting in a failure to developa principled approach to the claims that can be made followinga breach of contract. Recognition of this distinction forcesus to confront the fundamental question of how committed weare to the notion that contracts entail a right to performance.This article examines the distinction between these two interests,how the performance interest may be given effect by a damagesaward, and what the consequences of this analysis are for ourunderstanding of the nature of contractual obligation.     

论智能合约的私法构造

智能合约是一种通过区块链才能实现的新技术,在技术上是一种可编程的代码程序,在法律上是一种特殊的身份合同。其藉由特定当事人之间形成的共识机制,实现了对当事人身份的识别,促成了智能合约难以逆转的自动执行,并在事实上排除了当事人的合同撤销权,成为跨越合同订立、合同履行两个领域的新型交易机制。智能合约对传统合同法理论带来了巨大冲击和挑战,却不足以支撑"技术自治"或"代码即法律"等学术主张,也不足以否定实定法对智能合约的正当干预。在现行合同法框架下,仍然存在对智能合约及交易作出妥当解释的空间。除此以外,在智能合约的私法构造中,应当引入团体法思想,认可社团主义的自治机能,构建以"信赖保护"为核心的救济机制,实现法律与技术的同步发展。     

无产权证房屋买卖合同的法律后果

对无产权证房屋买卖合同不应直接认定为无效,而应适用我国合同法关于合同有效的规定或者第51条关于无权处分的规定。合同因解除条件成就而归于消灭时,已付房价款的返还、装修房屋所形成价值的返还属于不当得利返还。于此场合,不得适用过失相抵规则,除非守约方对此类返还选择了违约损害赔偿的请求权基础。这些返还与违约方应承担的违约损害赔偿并行不悖。     

美国合同法中的精神损害赔偿探析

传统的英美合同法理论认为,侵权责任中的精神损害赔偿不能扩展到违约责任中。然而,随着经济的发展,为了更好地保护受害方的利益,美国法学界和法院在一定程度上打破了这一传统原则,允许受害方在某些情况下可以要求违约中的精神损害赔偿,如：合同具有个人因素,合同条款无法为受害方提供适当金钱赔偿,违约方在订约时已经或应该预见到其违约行为将导致的精神损害等。笔者在对此进行仔细研究的基础上,对我国在这方面的立法提出了建议。     

Economic impossibility in Turkish contract law from the perspective of law and economics

We argue that the proposed introduction of the doctrine of economic impossibility in Article 137 of the reform draft of the Turkish Code of Obligations is in line with economic considerations and facilitates business transactions. This new rule gives courts the explicit power to terminate a contract and relieve the party, which owes specific performance of its obligation, without imposing any duty to pay expectation damages to the other party. We argue that a court??s decision to terminate a contract under economic impossibility should be based on three tests. First, a low-probability-event occurs between contract formation and performance. Second, this event causes an excessive increase in the costs of specific performance. Third, the concept of an excessive increase should take into due consideration the other party??s interest in specific performance. The reform draft includes explicitly the first two tests, but not the third test. We also show under which conditions an excessive performance difficulty should not lead to termination of the contract but rather to an adjustment of the agreed price. We argue that the rule of economic impossibility, if diligently adjudicated, saves the parties transactions costs in comparison to a rule under which the law insists on specific performance or damage payments. We also argue that a specific rule of economic impossibility leads to better and more business-oriented solutions to the underlying problems than the alternative, which is to solve such problems under the broad and unspecific cover of the ??good faith?? or the ??Clausula Rebus Sic Stantibus?? doctrine.     

Those crazy transaction costs: on the irrelevance of the equivalence between monetary damages and specific performance

The Coase theorem tells us that monetary damages and specific performance remedies for breach of contract have identical effects when transaction costs are zero. This has become a standard part of the literature on the economics of contract law. This note argues that the traditional view is somewhat misguided, as monetary damages and specific performance remedies are unnecessary in a zero transaction costs world. We go on to show how the presence of transaction costs impact the decisions of contracting parties as between the inclusion of liquidated damages clauses in contracts and resorting to litigation that could result in the application of either monetary damages or specific performance remedies.     

Environmental risks,the judgment-proof problem and financial responsibility

This paper examines a setting in which a firm is liable to pay environmental damages caused by its activity but may not have sufficient wealth for repair of damages. In order to induce the full internalization of the environmental cost, the firm is required to demonstrate a financial guarantee from a solvent party that covers this cost. Since the firm and the guarantor are joint liable for the harm caused by the firm, it is in the interest of the guarantor to design the guarantee contract in order to induce the firm to take an adequate level of prevention. First, I show that financial responsibility regime may achieve the social optimum. Secondly, I identify a particular form of contract in the set of contracts which induce the socially optimal level of prevention. This contract is closed to an alternative risk transfer product referred to as the spread loss treaty.     

《民法典》第584条(违约损害赔偿范围)评注

《民法典》第584条为有关违约损害赔偿范围的规定,可从事实因果关系和法律因果关系两个视角进行分析。事实因果关系视角下,应注意区分履行利益、信赖利益和返还利益。在因解除而发生的违约损害赔偿的计算中,应注意履行利益和返还利益的关系,避免重复计算。违约损害赔偿范围的决定中,确定性问题位于事实因果关系层面,是事后判断;而可预见性问题位于法律因果关系层面,是事前判断。若涉及确定性问题,确定性问题的探讨应在可预见性问题之前。     

验资机构对验资委托人的民事责任及其认定

验资机构和验资委托人之间的委托合同以委托人与验资机构之间的相互信任为前提,属于双务、有偿合同、不要式和诺成的特别委托合同。验资机构对验资委托人的民事责任存在契约责任与侵权责任竞合的情形。损害赔偿是验资机构对验资委托人承担民事责任的主要方式。由于委托人或第三人的原因而导致验资机构出具的验资报告与实际状况不符,委托人或第三人应当承担相应的责任。对于委托验资合同的免责条款的效力,应当从我国现行合同立法的规定和合同权利义务以及风险分配的合理性两个方面出发加以认定。     

劳动合同中的解约金问题研究

劳动合同是一种特殊类型的合同 ,当这一合同的一方当事人解除合同时 ,另一方当事人所遭受的损害难以事先预见。在这种情况下 ,合同中的解约金条款就缺乏合理的基础 ,也容易引起争议。为此 ,应当根据劳动合同的性质和特点对解约金的产生、表现形态和性质进行研究 ,从而找出解决有关争议的妥善办法。     

Remedies for damage to property: money damages or restitution in natura?

This paper compares the tort remedies of money damages and restitution in natura from an efficiency perspective. Although there is a parallel between these remedies and the remedies for breach of contract, i.e. money damages and specific performance, the analysis is fundamentally different in torts, because of the high transaction costs involved. The basis of the comparison is the relation of each of the remedies to the subjective loss for the victim. The conclusion drawn is that no rule is generally preferable, so it is crucial to sort the different types of cases and apply in each of them the remedy, which is better suited. On this premise, are evaluated the relevant rules of Germany, England and France, since each legal system tackles this issue differently.     

A secret paradox of the common law

This essay recounts a fascinating if complicated piece of Anglo-American debate. My aim is to reach a conclusion about the importance of the notion of changing one's normative position as part of the act of “giving sufficient consideration” for a legal contract. In several journals and textbooks between 1894 and 1918 the major contract scholars of the time, e.g., Langdell, Anson, Pollock, Williston, Ames, and Corbin, discussed a special example which was thought to reveal a paradox in the common law of consideration. The problem had shown itself in the textbooks of Pollock in England and Langdell in the United States. The example is of two contracts made by three persons in which one contract with the third party repeats the content of an existing contract with the second party. It would appear that the party at the pivot experiences no new detriment in merely performing, or promising to perform, his pre-existing duty. If so, such oblique contracts with third parties must fail for want of consideration extended from the first party. About this difficulty the experts were anything but agreed. The cases were not consistent. At the root of this uncertainty is an ambivalence about the concept of consideration itself. Should it be conceived in terms of normative relations and changes of moral position or should it be conceived in valuative terms, as harms and benefits? The differences of opinion about the legal validity of oblique contracts is explained by this ambiguity, one which the common lawyer has not yet resolved.     

合同解除效果与违约责任——以请求权基础为视角之检讨

《合同法》第97条的"恢复原状"属于返还上独立的请求权基础,具有债权效力。依据该条的"恢复原状"主张不当得利返还或所有权返还并无法律依据。解除后实物返还不能时的折价补偿,以及因返还产生的费用均属返还义务而非损害赔偿义务的内容。《合同法》第97条的"赔偿损失"并非因解除而生独立的损害赔偿请求权。在违约导致合同解除的场合,当事人可依据《合同法》第107条主张履行利益的损害赔偿。除行使任意解除权外,当事人原则上只能依据《合同法》第42条的缔约过失责任规范来主张信赖利益损害赔偿。另外,合同解除与违约责任可以并存。违约金请求权原则上不受合同解除的影响。     

合同错误的比较法研究

错误是影响合同当事人意思表示真实性的核心要素,也是判定合同效力的重要条件。各国民法对合同错误概念的不同界定和处置规则,导致合同效力的确认和处理结果迥异。尽管存在错误的合同理应得到法律的适当救济,然而救济的后果并非取消所有因错误而签订的合同之效力。作为一项原则,单方错误的合同、表示方有过错的合同和一方自愿承担风险的合同,其效力均不应被否定,但这一原则的适用又受制于适当的条件。对于合同错误的处理规则,各国的法律规定与司法实践并不完全一致。     

A Theory of Frustration and Its Effect

One of the key legal questions that COVID-19 has raised relates to the status of the traditional contractual doctrine of frustration. The pandemic and the ongoing lockdowns across the globe have made it difficult for many contracts to perform. At the same time, there is a deep doctrinal and conceptual confusion with respect to the very essentials of this doctrine and its remedy - i.e., what happens after an adjudicative tribunal declares that a given contract has been frustrated. The paper offers a unified conceptual account of the frustration doctrine and claims that both the doctrine and its remedy crystallize a single unifying idea.

     

对国家契约非稳定性的探讨

国家契约是调整各国能源开发和公用设施建设的重要法律工具。但由于国家契约中国家作为主体一方出现,公权力的影响涉及国家契约很多方面,使国家之间和私人主体之间利益平衡难以实现,尤其是近年来间接征收的出现更加剧了国家契约非稳定性,从契约中寻求非稳定性的救济途径难以达到预想效果。在当今各国依然以能源开发和公用设施建设为经济发展的重要目标背景下,以平等自由理念构建国内法制度对国家契约的稳定发展应有一定意义。     

专利权瑕疵的类型及其法律责任——基于合同法的视角

专利权瑕疵是一类重要的权利瑕疵。在专利法学中引入专利权瑕疵担保责任的概念,沟通了合同法与专利法,是民法与知识产权法之间深层互动的重要体现。实务中专利权瑕疵主要发生在以买卖合同为代表的有体物交易合同和以专利转让合同及专利实施许可合同为代表的权利交易合同中。在合同法的视角下,专利权瑕疵的救济方式主要包括中止支付价金、继续履行减价、解除合同以及请求损害赔偿等。