Conclude a treaty of negligence liability applicable reach compensatory range
Conclude a treaty on the responsibility that negligence liability is obligation of the contract before disobeying, protective is to trust interest and rather than to fulfill an interest.
So, conclude a treaty of negligence liability applicable what is reaching compensatory range?
[details of a case]
In June 2000, accuser Yan Mou (department overseas Chinese) because buy coffin pit to put in garden cemetery 's charge to the accused,connection concerns matters concerned, the accused provides prosecutor contract of purchase and sale of a formatted coffin pit. Via talking things over, both sides comes to an agreement, regulation: A plot of the area of overseas Chinese grave that place of accuser subscribe the accused belongs to, area estimation is 1000 square metre, u.S. dollor of every square metre 260 yuan, what buy coffin pit to be used at making colour family name familial coffin pit, accuser enjoys permanent access to the coffin pit of place subscribe. After the agreement is signed, accuser should pay the accused U.S. dollor 26 thousand yuan first, amount to RMB 210 thousand multivariate, this are first time money paid for something purchased or received for something sold, the coffin pit design that after the accused receives the imprest of coffin pit, should offer according to accuser imagines design of responsible coffin pit, after classics accuser agrees, decide by both sides " coffin pit project makes a contract " , bilateral and provided other item.
After the contract concludes, accuser paid brushstroke cost according to it, the accused develops the work such as coffin pit design. November 2000, when job of the pre-construction that build a tomb nears end, accuser is informed via seeking advice, sell with subscribe 1000 square metre construct coffin pit is lawbreaking regulation, the tentative idea that accuser plans to build clan graveyard formerly also is to disobey " regulation of funeral and interment " , namely the contract that bilateral place signs is illegimate. Appeal to then to the court, ask the court decision terminates a contract, the accused is returned return imprest, pay imprest the interest in the accused occupation 6000 yuan. The accused does not agree.
[problem]
1, in this case, whether should the accused assume compensatory loss responsibility to accuser? Why?
2, in this case, by who should imprest pay in the accrual of the accused occupation? Why?
[annotation]
1, this asking involve conclude a treaty the applicable problem of negligence liability.
According to " contract law " the 42nd regulation, party is in conclude there are one of following states in contract process, cause losing to the other side, ought to assume damages responsibility: (1) make use of concludes contract, ill will undertakes consulting; (2) conceal as important as what conclude the contract is concerned fact intentionally to perhaps provide false case; (3) have other the act that violates honest credence principle. This it is to conclude a treaty the legal basis of negligence liability.
Conclude a treaty negligence liability includes the following case:
(1) baleful negotiation sends a contract not to hold water, namely make use of of party one party concludes contract, ill will undertakes what do not hold water consulting extending a contract conclude a treaty error. The contract before the basis is compulsory, both contracting parties is in contact from time to tome sincerity concludes a treaty, negotiate obligation each other, if be,conclude a treaty ill will consults or abrupt ill will breaks negotiation, make this kind conclude a treaty error. Experience breaks off a friendship to send a contract not to hold water in be not baleful error, damage of person of even when thing is killed, not negative conclude a treaty the liability to pay compensation of error.
(2) conceal major item or provide false case, when concluding a treaty because of party one party namely, conceal intentionally with conclude a treaty the major item that concern or the error that provide false case. Conceal intentionally with conclude a treaty concerned major item or offer false circumstance to be able to be formed con, if suffer con party to be no good,make cancel counterpoises, the contract still is effective, get con person namely nonuser; If its exercise cancel counterpoises, make the contract is attributed to because of cancel invalid, can request to conclude a treaty relative to person burden the liability to pay compensation of error.
(3) the unpremeditated crime that violates confidential obligation, namely party one party is divulged or shocking the error of the secret of business of other places party that uses the know when concluding a treaty. In conclude a treaty when bargaining, if learn the business of the other side is private, party has confidential obligation to must not be divulged to other, also must not use, form otherwise conclude a treaty on error. This type concludes a treaty on error, it is obligation of the contract before party is disobeyed, include keep secret and must just when use two kinds of cases, want party to disobey only among them, no matter whether the contract holds water or intended error, should lose conclude a treaty on negligence liability.
(4) those who violate honest honor is other behavior of the error when concluding a treaty. This is " contract law " for other did not induce but also belong to conclude a treaty the type of error, offerred legislation is applicable space.
In this case, the accused serves an unit as funeral and interment, ought to know the provision that the country makes to place of this service industry, sign a sale to exceed the coffin pit contract of large area with accuser however, stipulate this coffin pit is used at constructing familial coffin pit, enjoy the content of the lawbreaking regulation such as the perpetuity to this coffin pit, accordingly, because this contract is lawbreaking the fault responsibility that prohibits the gender sets and disabling is in the accused, answer to assume damages responsibility lawfully.
2, this asking involve conclude a treaty the compensatory limits problem of negligence liability.
Conclude a treaty on the responsibility that negligence liability is obligation of the contract before disobeying, protective is to trust interest and rather than to fulfill an interest. So, compensatory losing limits should be a principle with actual loss, conclude a treaty except what violate confidential obligation outside error, do not compensate for what damage kills a person to expect an increase, wait like profit.
In this case, accuser is overseas Chinese, and the accused of lawful sex requirement that is this contract all the time makes a specification, should maintain its nonexistent subjective the fault that go up, the accused puts in garden cemetery 's charge to know the national requirement about grave, invalid to the contract existence disobeys the fault of sincere letter, accordingly, accuser loses this money because of paying imprest to deserved in place of the accused occupation accrual fastens his to sign contract of invalid coffin pit business and the immediate loss that suffer, answer to be assumed by the accused lawfully.
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