违约的救济方法

1、组员：吕玲，许晓媚，吴琼冰组员：吕玲，许晓媚，吴琼冰 Generally speaking, the remedies for breach of contract in common use are specific performance, damages, rescission, injunction and liquidated damages.Specific performance实际履行 Specific performance means the obligee权利人 requests of the obligor义务人, or a court order requiring

2、performance exactly as specified in the contract. 含义：一是指一方当事人未履行合同义务，另一方当事人有权要求他按合同规定完整地履行合同义务，而不能用其他的补偿手段；另一重含义是指一方当事人未履行合同义务，另一方当事人有权向法院提起实际履行之诉，由法院强制违约当事人按照合同规定履行他的义务。 The continental law holds specific performance as a primary remedy for breach of contract. However, at common law, there is no pr

3、ovision of specific performance as one of the remedies for breach of contract. The Chinese contract law provides that where a party fails to perform, or rendered nonconforming performance of, a nonmonetary obligation, the other party may require specific performance, except where:(1)Performance is i

4、mpossible in law or in fact;(2)The subject matter of the obligation is unfit for compulsory performance or the cost of performance is excessive;(3)The obligee fails to require the specific performance within a reasonable time.Damages损害赔偿 The article 112 of the Contract law of the PRC says that where

5、 a party failed to perform or rendered nonconforming performance, if notwithstanding its subsequent performance or cure of nonconforming performance, the other party has sustained other loss, the breaching party shall pay damages. 含义：是指违约方用金钱来补偿另一方由于其违约所遭受到的损失 Damages may be the most commonly used j

6、udicial remedy for breach of contract in the present world Liability for damages损害赔偿责任的成立 Under continental law, in normal cases, there shall be three conditions for holding the obligor to be liable for damages:(1)The fact of damage;(2)The obligor is responsible for the damage;(3)There is causality

7、between the former two conditions. In common law countries, the only condition for the nonbreaching party to sue for damages is the existence of breach of contract. 2) Means of damages赔偿办法 There are two means of damages: restitution 回复原状。用实物赔偿损失，使恢复到损 害发生前的原状 monetary damages 金钱赔偿 3）Measurement of d

8、amages赔偿范围 The actual damage refers to the loss directly caused by the breach of contract. The loss of benefit means that, the obligee would get some benefit if the contract is performed but it loses the benefit because of the obligors breach of contract. For example, if the seller fails to deliver

9、the goods then the loss of the goods is the actual damage to the buyer; the profit that the buyer would make by reselling the goods may be regarded as the loss of benefit. Chinese contract law provides that the amount of damages payable shall be equivalent to the injured partys loss resulting from t

10、he breach, including any benefit that may be accrued from performance of the contract, provided that the amount shall not exceed the likely loss resulting from the breach which was foreseen or should have been foreseen by the breaching party at the time of conclusion of the contract. The continental

11、 law holds that damages shall recover both the actual damage and the loss of benefit.3.Rescission 解除合同 It refers to exemption or termination of contractual obligations of the parties to a contract.(免除或终止合同当事人的合同义务。） If one party delayed performance of its main obligations and failed to perform withi

12、n a reasonable time after receiving demand for performance, or otherwise breached the contract, thereby frustrating the purpose of the contract, the other party may terminate the contract. -article 94 of the Contract Law of the PRC 所谓所谓合同解除合同解除就是指在合同有效成立之后，尚未开始履行就是指在合同有效成立之后，尚未开始履行或者尚未全部履行完毕之前，根据法律规

13、定或因当事人一或者尚未全部履行完毕之前，根据法律规定或因当事人一方的意思表示或者双方的协议，使基于合同而发生的民事方的意思表示或者双方的协议，使基于合同而发生的民事权利义务关系自始消灭或者向将来消灭的一种行为，是合权利义务关系自始消灭或者向将来消灭的一种行为，是合同效力的非正常终止。它既可以是单方行为，也可以是双同效力的非正常终止。它既可以是单方行为，也可以是双方行方行1）Establishment of rescission right Continental lawThe obligee(负债人）may rescind the contract if the obligor(债务人）was

14、 liable for breach of contract.The casedelayed performance and incomplete performanceA. The obligee should exhort(劝告）the obligor to perform within a period of time, and then the obligee may make the rescission if the obligor still failed to perform within the period. In common law countries, the non

15、breaching party may rescind the contract only there is a breach of condition or a material breach.Classification of breaches of contract English common law breach of condition breach of warranty American common law material breach(实质性违约） minor breach (轻微违约）2)Exercise of rescission right Two means fo

16、r the nonbreaching party to sue to court for rescission just to express the intention of rescission to the breaching party French civil law requires the obligee to sue to court for rescission unless an express clause of rescission prescribed in the contract German civil law provides that the entitle

17、d party may rescind the contract just by the expression of such intention Many countries legally allow the nonbreaching party to claim for damages when it rescinds the contract with an exception of Germany. The Germany Civil Code provides that the obligee can choose only one of the two rights. Commo

18、n law rescission is a right the nonbreaching party entitled to have for it may be exempted of its contractual obligation by the means of declaring rescission3) Effect of rescission The Chinese contract law provides that upon termination of a contract, a performance which has not been rendered is dis

19、charged. Discharge of contractual rights and obligations does not affect the validity of contract provisions concerning settlement of account and winding-up.(合同的权利义务终止，不影响合同中结算和清理条款的效力。） Continental law similar to the Chinese provisions. the parties are released from the obligations unperformed and

20、the performed obligations shall be restituted（偿还）because of nonexistence of the legal cause. English common law rescission only causes the contract to be void(无效的） in future but not from the beginning and therefore the future performance is exempted while the performed rights and obligations need no

21、t to be restituted. American law differs from English law while is similar to that under continental law requires the parties to make restitution to rescind a contract (such as returning the goods, property, or money received from the other party). is an equitable remedy under the Anglo-American Law

22、 System which can be used in some breaching cases where a direct order of court is required to stop a party from continuing an ongoing breach. 禁令是在英美法系中采取的一种特殊的救济方法，是指由法院作出禁止，强制执行合同所规定的某项消极义务，即由法院判令被告不能做某种行为。 . A special remedy in the Anglo-American Law System . It is developed as the main remedy in

23、 equity(衡平法), and used especially where money damages would not satisfy a plaintiffs claim. . It is usually issued to prohibit an action.。 禁令是衡平法上的一种救济方法，英美法院仅在两种情况下才会给予这种救济，一是采取一般损害赔偿的救济方法不足补偿债权人所受的损失;二是禁令必须符合公平合理的原则。 Liquidated damages refers to a sum of money agreed upon by the parties to a contr

24、act, to be paid by the breaching party to the nonbreaching party in the event of a breach of contract. The article 114 of the Contract Law of the PRC （中华人民共和国合同法第114条） states that the parties may prescribe that if one party breaches the contract, it shall pay a certain sum of liquidated damages to t

25、he other party in light of the degree of breach, or prescribe a method for calculation of damages for the loss caused by the breach. Where the amount of liquidated damages prescribed is below the loss, a party may petition the Peoples Court or an arbitration organization to increase it. Where the am

26、ount of liquidated damages prescribed exceeds the loss, a party may petition the Peoples Court or an arbitration organization to make an appropriate reduction. Where the parties prescribed liquidated damages for delayed performance, the breaching party shall pay the liquidated damages and also render performance The