违约的救济方法.pptVIP

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 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 provision 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 impossible 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 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 judicial 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 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 damag