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2 An Analysis on the Breach of Duty in New German Civil Law 1896 (RGBl.S.195) (BGBl.I S.42, ber.s.2909) Abstruct The German Law of Obligations was promulgated in 1896 and has been for more than 100 years from now. All the factors such as the changes of the society, the development of the science and technology, the legislation in EU and the international environment, make it necessary for the civil code to have substantial modification. One of the major objectives of the new German Civil Code, is to reform the regula- tions concerning breach of duty, making the legal system transparent. The modification focused mainly on remodelling the whole system. The breach of duty regulations originally contained in particular articles of the civil code have been integrated into the general articles. Remedies for breach of duty become the central part of the new regulation. A claim for performance cannot be made in so far as it is impossible for the obligor or for anyone else to perform. impossibilium nulla est obligatio. principle of old roman law. If the obligor fails to perform his duties arising from the obligation, the obligee may claim compensation for the loss resulting from this breach. In this case, the obligor s fault will be assumed. The obligee may demand compensation for delay in performance if the additional requirement in 286 is satisfied. The obligee may demand compensation in lieu of performance, if the additional requirements of 281, 282 or 283 are 1

3 satisfied. Even the impossibility for performance already exists at the time of contracting does not prevent the contract from being valid. A claim for performance though cannot be made in so far as it is impossible for the obligor or for anyone else to perform. If the obligor fails to perform his duties arising from the obligation, the obligee may claim compensation for the loss resulting from this breach. This does not apply, however, if the obligor is not deemed liable for the failure to perform. The obligee may also demand reimbursement of the expenditure which he incurred in reasonable reliance on the performance, except where the expenditure would be paid for nothing even if the obligor had not breached his duty. If the obligor obtains a substitute for the object owed, the obligee may demand surrender of what has been received. There were no substantial modifications on Delay by the obligor. By a contract of sale the seller of a thing is bound to deliver the thing to the buyer and to transfer to him ownership of the thing. The guarantee of no defect doctrine has been replaced by non-performance principle. Delivery of defected goods will only result in responsibilities, if the obligor has fault. The rights of obligee have been limited. If under a synallagmatic contract the obligor fails to perform when due or to perform in accordance with the contract, the obligee may terminate the contract, with or without giving the other party an additional grace period. Culpa in contrahendo and clausula rebus sic stantibus which were rules made by judge, have both now been incorprated into status. Key Words breach of duty, failure to perform or failure to perform properly, Reimbursement for wasted expenditure, Delay by the obligor, Impediment to performance at the time of the conclusion of the contract, Exclusion of the obligation to perform, delay in performance, the right of termination, culpa in contrahando, clausula rebus sic stantibus, pacta sunt servanda, impossibilium nulla est obligation. 2

4 Unmoeglichkeit Unvermoegen Schlechterfuellung I. II. 280 III (UNIDROIT) 簒 [ ]A party may not rely on the non-performance of the other party to the extent that such non-performance was caused by the first party act or omission or by another event as to which the first party bears the risk (1) The aggrieved party is entitled to damages for loss caused by the other party's non-performance which is not excused under Art. 8: 108. (2) The loss for which damages are recoverable includes: (a) non-pecuniary loss; and (b) future loss which is reasonably likely to occur

5 1992 das Burgerlijk Wetboek a c f 1 (2 ) Garantiehaftung I. II. III

6 ( ) (1) ( ) a

7 a (1) Einwendung 311 a 1 (1) I. faktische Unmöglichkeit( ) II. moralische Unmöglichkeit( ) III. wirkliche Unmöglichkeit( 1 ) faktische Unmöglichkeit [ ] Einrede 4

8 Einwendung SARS ] Sekundaerleistungspflich I Schadenersatz statt der Leistung a 326 II. 284 Ersatz vergeblicher Aufwen-dungen III

9 311 a ( ) ( ) Rentabilitaetsvermutung (1) ( ) (2) ]

10 (1) (2) (3) weit überwiegend verantwortlich. 276 Obliegenheit Nacherfuel-lung (2) (280 2 ) (288 )

11 %( 352 5%) 5% 288 (1) (2) (3) (4) Schlechterfüllung 8

12 Nacherfüllung ( e) ( ) ( ) [Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171, , p. 12) ]

13 ( 227 )

公平交易法損害賠償制度之功能與詮釋

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