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Termination of the contract and breach of contract

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					Termination of the contract and breach of contract
Wang Liming: Termination a narrow and a broad, broad adoption of our concept of
contract law, it refers to laws established in the contract not fully performed before the
two parties based on consultation, the law or the relationship between the parties
agree that the contract had thus attributed to eliminate of a legal act, including the
agreement to lift the lifting and statutory both cases, which can be divided into the
agreement agreed to lift the lifting and the right to terminate the agreement.
First said that the agreement to lift, it is the parties concerned through a new contract
entered into after the lifting of the original contract, according to the principle of
freedom of contract, the parties have the right to terminate the contract through
consultation, others the right to interfere. At this point there is a problem, that party
has the default behavior, but the parties have reached a disarmament agreement, at
this time whether the other party can claim breach of contract? This from different
perspectives, there is that at this time as a non-breaching party to abandon the right to
claim damages, because the termination of this agreement is to resolve the dispute, the
parties refuses to abandon the right to claim damages can not cancel the agreement
reached with the other party Otherwise, feel, disputes. Another view is that although
the agreement reached by lift, but does not affect the non-breaching party to claim
damages, because the right to abandon the stake, should be expressed, this cancel the
agreement if there is no clear agreement should be regarded as not agreed. And
termination of the contract has its inherent function and purpose, and the right to
abandon the Neutrality. In contrast, the second view may be more logical. However, I
think the first statement should also be considered under specific circumstances, can
determine your behavior under the presumption you give up this right, which
according to the specific circumstances of the case to be further examined.
The second, agreed to lift also the case - "Contract Law" 93 of
the second paragraph, the parties agreed to lift condition is primarily a pre-agreed
conditions, waiting for conditions when present, the party enjoys right of cancellation.
Special and we emphasize that this right to terminate the prior agreement in front of
the case and we talked about the conditions attached to the contract agreed to lift the
conditions inside, this is different. Such as the two sides agreed, I rented this house
you half a year, we reached an agreement, if the B in the unit assigned to the house,
we lift the specific contract or a written contract. If such written contract which, if B
assigned to the house, the owner the right to terminate the contract, which is a
formulation. Another way of saying that if B assigned to the house, Party Contract. In
both cases what the difference? (Answer: the first case the lifting of the agreed
conditions, as long as the conditions of an established nature of this contract has been
lifted. Another case right to terminate the agreement if, after the establishment when
the conditions have to choose whether to lift the right to terminate the contract. This
possibility of lifting the contract, also could not relieve.) Yes, the difference mainly in
the place, and they agreed right of cancellation and the agreement on lifting the
difference between this place, if the contract to terminate the contract stipulated yes
You Quan, actually is one kind of agreement Rescind. Gives you this right, but the
contract has not, of course lifted, the lifting of the contract depends on you not to
exercise this right. "Contract Law" 93 The second paragraph of
the meaning, there must be an actual exercise behavior. Of course, if the conditions
are not lifted, they just said to the standard, B if the assigned house, contract
termination, which refers to the conditions agreed to lift. Discharge conditions in the
agreement, once the conditions for success, the lifting of the contract, of course, does
not require the exercise of any right. This should be the basis of (the case) how the
specific provisions of the contract to analyze, the difference in trial practice is very
large. Attention to "Contract Law" 93 of the second paragraph
which is the right of cancellation referred to cancel the contract conditions for success
can terminate the contract, meaning he is in fact the right to terminate the contract, not
to say that the meaning of the termination of the contract automatically. The second is
the lifting of legal, statutory discharge can be divided into two categories, one is force
majeure, and the other is our simple summary of the fundamental breach of contract.
Force majeure "contract law" can not foresee the second article
can not be avoided, and the objective situation can not be overcome. The original
"contract law" provides that in case of force majeure, the
contract can be lifted of course. Later, when we feel the resistance in the discussion
itself, the impact of its contract, under different circumstances is not the same.
Possible disasters, but does not mean you can not fulfill the contract, it may only lead
to some unable to perform, or lead to a perception can not perform, so it depends on
the contract of force majeure to what extent. All "contract law"
must be a force majeure with the parties to the contract led to the fundamental
purpose of his contract can not be achieved when the impact is significant, is the
purpose of his contract impossible to achieve, this time of the dissolution of the
contract, only the exercise of statutory the right of cancellation. The purpose of the
contract can not be achieved so that means the parties when concluding the contract,
the purpose sought and obtained from the contract's basic interests and
goals can be achieved. Contract for the sale of a contract such as the direction of the
purpose or the other to pay the price, marked the other party in order to obtain the
goods, if the price paid and the mark of the goods can not reach, then that is the
purpose of contract can not be achieved up.
The second category is the fundamental breach of contract, fundamental breach of
contract, also known as the so-called material breach. Why do we have to invoke the
concept of fundamental breach Zhege, our "Economic Contract
Law" in the subsequent 93 years of Guiding is to modify the default one,
the other party the right to terminate the contract. This provision is very bad, because
it is the case of default is very complex. Such a case, the defendant purchased tin, as
in the opening line, the fact the defendant had long ago transferred the money into his
bank of deposit in, because the opening line of the reasons why the defendant to the
plaintiff's account remittances in late three days, the plaintiff put forward,
because you are late for three days, I have to cancel the contract. In three days the
market price of such a target it has no effect, and no fluctuations. The reason for the
plaintiff to terminate the contract is actually not so much his own goods may pay, he
just found an excuse. Our past, "Economic Contract Law" any
breach of contract can terminate the contract, since this is a minor breach of contract
even if the case can be lifted. Therefore, it leads to instability in the contractual
relationship, nor will one non-honest parties can use this minor breach to terminate
the contract, abuse of power of the termination of the contract.
"Contract Law" refers to the concept of fundamental breach of
contract, fundamental breach of contract in accordance with the "Contract
Law" 94 in fact it should be seen as a breach of contract because one party
caused the other purpose of the contract can not be realized. We take note of the
fourth it has a reveal all the details of the terms, one party can not discharge the debt
or any other breach of contract, resulting in not achieve the purpose of the contract,
clauses reveal all the details on that this. Fundamental breach of contract law in effect
whether the grace period is to achieve the purpose of contracting the contract.
Previously listed are from the second to the fourth cause fundamental purpose of the
contract can not be realized, the second stresses the anticipatory breach of contract,
including implicit and explicit forms. In the performance period before the party made
it clear that a default, breach of contract it is expressly to acts that do not fulfill their
primary obligations are called implied breach of contract, it will not be realized so
that the purpose of contracting. "Contract Law" Article 94,
paragraph 3, about the delay in performing, how to delay default presumption is a
fundamental breach of contract, this is a very complex issue. I have talked about the
deadline in the contract which its meaning in different circumstances are very
different. In the earlier case which is only three days late, we can not say that it
constitutes a fundamental breach of contract. However, in some cases, may be one
day late may constitute a fundamental breach of contract. For example, I want to order
on August 15 the moon cake, you just handed me on August 16. Set the table for
today's married, you say tomorrow eat. Not to late day? This time we can
not say one day, two days is not that important, but legally we have to form a criterion.
This criterion notice procedure created by a program to address this process, that once
the delay, and then summon ask you to immediately perform. Summon the same time
also to a reasonable period of time, continue to perform. In other words, that is, to a
grace period of interpellation, after a grace period to not perform within a reasonable
time, constitutes a fundamental breach of contract, not to me whether you caused the
damage constitutes a major breach. This and the provisions of civil law in many
countries not the same as Germany is taking on behalf of the interpellation period,
that is not to summon as long as the contract expired, I think that this judge may not
be clear. You said the contract expires, perhaps due to various reasons can not be
timely delivered the goods once in, for instance, shipping a car accident on his way
out of traffic jams, hundreds of kilometers have been going backward in time for less
than a few kilometers, You immediately called to say, do not come to the contract has
expired, the contract has been lifted, and this I'm afraid not. So how should
we do? Delivery contract on the 20th, I put in a request interpellation, and give you
five days, when it can not be delivered within five days, then I'm sorry, and
cancel the contract. This is a discussion which needs more than the grace period is
reasonable Zhang Shijian be considered, and we emphasize Bixu is reasonable,
whether the multi-Chang to a Getongjuti under each of the Qing Kuang Lai Pan Duan,
Bu Neng Youzhaiquanren and Fei default party to Jinhangqueding.

				
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posted:8/27/2010
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