Modes of Regulation in the Intermediate Field Between Contract Law and Tort Law: A Chinese Law Perspective

564 Pages·2023·5.94 MB·English

by  Jiayong Zhang

Jiayong Zhang
Modes of Regulation
in the Intermediate
Field Between Contract
Law and Tort Law
A Chinese Law Perspective
Modes of Regulation in the Intermediate Field
Between Contract Law and Tort Law
Jiayong Zhang
Modes of Regulation
in the Intermediate Field
Between Contract Law
and Tort Law
A Chinese Law Perspective
Jiayong Zhang
School of Law
Zhongnan University of Economics
and Law
Wuhan, China
Translated by
Shiquan Sun
School of Foreign Studies
Zhongnan University of Economics
and Law
Wuhan, China
The English version of this volume has been supported by the Fundamental Research Funds
for the Central Universities, Zhongnan University of Economics and Law “Research on Legal
Translation: A Comparative Law Perspective” (Grant Number.2722021AJ010), and “Study
on the National Language Security Strategies” (Grant Number.2722022FJ031).
ISBN 978-981-19-9106-6 ISBN 978-981-19-9107-3 (eBook)
https://doi.org/10.1007/978-981-19-9107-3
Jointly published with Huazhong University of Science and Technology Press
The print edition is not for sale in China (Mainland). Customers from China (Mainland) please order the
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Translation from the Chinese Simplified language edition: “合同法与侵权法中间领域调整模式研究”
by Jiayong Zhang, © Huazhong University of Science and Technology Press 2016. Published by Peking
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© Huazhong University of Science and Technology Press 2023
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Contents
1 Introduction Definition of the Theme and Proposal
of the Research Questions ....................................... 1
1 Research Questions .......................................... 1
2 Current Situation of Theoretical Research ....................... 3
3 Research Methods ............................................ 8
4 Basic Structure .............................................. 9
2 Formation of the Intermediate Field of Contract Law and Tort
Law ........................................................... 11
1 Distinction Between Contract and Tort .......................... 11
1.1 Contractual Obligations vs. Statutory Obligations ............ 12
1.2 Erga Omnes Right vs. Relative Right or Right vs. Interest ..... 27
1.3 Expectation Interests vs. Inherent Interests .................. 41
1.4 Summary .............................................. 50
2 Expansion of Contract Law and Tort Law ........................ 51
2.1 Functional Preset and Normative Structure .................. 52
2.2 Expansion of Contract Law ............................... 55
2.3 Expansion of Tort Law ................................... 66
2.4 Summary .............................................. 83
3 Typological Composition of Intermediate Field of Contract
Law and Tort Law ............................................ 84
3.1 Reasons for the Formation of Intermediate Field ............. 84
3.2 Basic Forms of the Intermediate Field ...................... 88
3.3 Summary .............................................. 90
4 Summary of the Chapter ...................................... 91
3 Legal Regulation at Pre-contractual Stage ........................ 93
1 Pre-contractual Relationship and Pre-contractual Liability ......... 94
1.1 Pre-contractual Relationship .............................. 94
1.2 Pre-contractual Obligation ................................ 99
1.3 Pre-contractual Liability .................................. 117
1.4 Summary .............................................. 119
v
vi Contents
2 Imputation Standards for Pre-contractual Liabilities ............... 120
2.1 General Intentional Liability? ............................. 121
2.2 Contractual Liability Without Culpa? ...................... 134
2.3 Summary .............................................. 143
3 Assumption of Pre-contractual Liability ......................... 145
3.1 Liability Forms ......................................... 145
3.2 General Damages ....................................... 147
3.3 Gain-Based Damages .................................... 159
3.4 Summary .............................................. 165
4 Pre-contractual Liabilities and Civil Liability System .............. 166
4.1 Pre-contractual Liabilities and Liabilities for Breach
of Contract ............................................. 167
4.2 Pre-contractual Liabilities and Tortious Liabilities ............ 176
4.3 Pre-contractual Liabilities and Liabilities for Restitution
of Unjust Enrichment .................................... 181
4.4 Summary .............................................. 186
5 Summary of the Chapter ...................................... 188
4 Legal Regulation in the Overlapping Field at the Stage
of Performance of Contract ..................................... 193
1 The Protective Duties at the Stage of Performance of Contract ...... 194
1.1 Connotation and Types of Protective Duty in Contract ........ 194
1.2 The Positioning of Protective Duty in Contract .............. 209
1.3 Protective Duty in Contract ............................... 234
1.4 Legal Consequences of Breach of Protective Duty
in Contract ............................................. 243
1.5 Summary .............................................. 288
2 Concurrence of the Liability for Breach of Contract and Tortious
Liability .................................................... 291
2.1 Normative Significance of Concurrent Liability
for Breach of Contract and Tortious Liability ................ 291
2.2 Distinction Between Liability for Breach of Contract
and Tortious Liability in the Context of Chinese Law ......... 296
2.3 Development of Concurrence of Liabilities in Chinese
Legal Practice .......................................... 307
2.4 Reflection on the Concurrence of Claims ................... 320
2.5 Summary .............................................. 328
3 Third Party Issues Related to Performance of Contract ............. 330
3.1 Role of Contract in Protection of a Third Party .............. 331
3.2 Interference with Contractual Claims by a Third Party ........ 355
3.3 Summary .............................................. 378
4 Summary of the Chapter ...................................... 379
Contents vii
5 Legal Regulation on Courtesy Relationships ...................... 383
1 Distinction Between Act of Courtesy and Legal Transaction ........ 384
1.1 Definition of Act of Courtesy ............................. 384
1.2 Judgment of “Intention to Be Legally Bound” ............... 394
1.3 Borderlines Between Gratuitous Contract and Act
of Courtesy ............................................. 398
1.4 Summary .............................................. 407
2 Legal Construction of Act of Courtesy .......................... 408
2.1 Nature of Courtesy Relationships .......................... 409
2.2 Content of Courtesy Relationships ......................... 413
2.3 Liabilities for Damages Arising from Courtesy
Performance ............................................ 416
2.4 Theory of Act of Courtesy and Chinese Judicial Practice:
Taking Carpool in Good Faith as an Example ................ 430
2.5 Summary .............................................. 438
3 Summary of the Chapter ...................................... 439
6 Systematization of Legal Regulation in the Intermediate Field
Between Contract Law and Tort Law ............................ 443
1 Normative Objectives of Legal Regulation in the Intermediate
Field ....................................................... 444
1.1 Distinction between Creation of Rights and Interests
and Relief for Rights and Interests ......................... 444
1.2 Characteristics of the Relief for Rights and Interests
in the Intermediate Field ................................. 455
1.3 Summary .............................................. 459
2 Theoretical Attempts to Systematize the Legal Regulation
in the Intermediate Field ...................................... 460
2.1 Proposal of “Third Way” and Criticism of It ................. 461
2.2 Attempt of Normative Integration and Extension of Its
Significance ............................................ 475
2.3 Theoretical Attempt of Full Normative Integration Theory .... 481
2.4 The Significance and Expansion of Normative Integration ..... 483
2.5 Path Choice of the Systemization of the Intermediate Field .... 486
2.6 Summary .............................................. 496
3 System Effect of Modes of Regulation in the Overlapping Field ..... 497
3.1 Experience of Liability Integration in Comparative Law ...... 497
3.2 “Consequence Mode” of Liability Integration ............... 506
3.3 Legislative Choice from the Perspective of Liability
Integration ............................................. 521
3.4 Summary .............................................. 537
4 Summary of the Chapter ...................................... 538
Conclusion ........................................................ 541
References ........................................................ 547
Chapter 1
Introduction Definition of the Theme
and Proposal of the Research Questions
When we continue to deviate from the classical theories of contract and tort, can we still
consider them to be a theory of “contract” or “tort”?
—The author
1 Research Questions
Contract law and tort law are two core fields of the traditional law of obligations. It is
generally believed that contract law protects expectation interests and tort law protects
inherent interests. However, in practice, almost all contracts may simultaneously
trigger the protection of expectation interests and inherent interests, resulting in the
interconnection between contracts and torts. With the weakening of the basis of the
legitimacy of will theory, contracts have been objectified or socialized, and contract
law has taken the liability of maintaining the obligation set by free will and has
taken the liability of the reliance protection. The expansion of the protective duties of
contract extends its scope of protection to areas where tort law otherwise governs. On
the contrary, the tort law incorporates the contractual relationship into its regulative
scope to determine the duty of care. It also extends the protection scope to pure
economic interests, the “exclusive field” of traditional contract law. The interests
arising from the contractual relationship (the contractual claims) also become the
object protected by tort law (interference with claims by a third party). The tortious
liability can be limited or exempted by agreement in advance, and the settlement of
tort is identical to replacing the tort with contract. Such a staggering situation that
has resulted in the so-called “gray zone”,1 where the boundaries between contract
law and tort law are blurred, is called the “intermediate field” in this book.
1 See Oliver Moréteau, Revisiting the Grey Zone Between Contract and Tort: The Role of Estoppel
and Reliance in Mapping Out the Law of Obligation, in Helmut Koziol & Barbara C. Steininger
ed., Tort and Insurance Law Yearbook: European Tort Law 2004, Springer Wien, New York, 2005,
p. 61.
© Huazhong University of Science and Technology Press 2023 1
J. Zhang, Modes of Regulation in the Intermediate Field Between Contract Law and Tort
Law, https://doi.org/10.1007/978-981-19-9107-3_1
2 1 IntroductionDefinitionoftheThemeandProposaloftheResearch…
The intermediate field of contract and tort law takes two forms: the fuzzy field
and the overlapping field. The fuzzy field involves the definition of the nature of
the object to be regulated, which typically relates to contracting contact relation and
courtesy relation. Different definitions of such relations may affect the construction
or application of relevant laws. Whether such relations should be included in contract
law or tort law involves the law implementation in the form and the appropriateness of
regulation effects. In contrast, there is no direct relationship between the overlapping
field and the legal determination of the field to be regulated because the overlapping
field falls within the regulation scope of both contract law and tort law in accordance
with the construction logic of these two norms even if the most stringent criteria
are adopted. The typical forms of the overlapping field are the protective duties of
contract and the concurrent liability for breach of contract and tort. Although it is
possible to determine a boundary based on a particular function preset, its accu-
racy and appropriateness are still problematic. The determination of the boundary
between contract and tort has always been a common problem faced by all countries’
legislation, judicature, and law theories.
There are two core problems to be solved in the intermediate field between contract
law and tort law in terms of law theory: one is how to treat the complementary
relationship between contract law and tort law; the other is how to deal with the
different legal consequences when an act satisfies the constitutive requirements of
the norms in both fields.2 For example, when contract law extends its regulative
force to the scope in which the contractual relationship has not been established
or the obligation has been performed, the “contractual effect without contract” will
arise. In this case, it is necessary to coordinate its relationship with the representative
“extra-contractual liability”, that is, the tortious liability. In addition, as different
fields of law, contract law and tort law don’t stand to one another. Instead, they
may affect each other in certain circumstances. For example, although compensation
for personal injury is only provided in tort law, it is applicable where a contractual
liability relates to compensation for personal injury; conversely, although the invalid
agreement on the exemption from liability for personal injury is provided in contract
law, it should also apply to the tortious liability. The general provisions on the effects
of obligations are usually the product of legislative techniques extracting common
norms from specific norms of contract law or tort law, which does not necessarily
mean the remaining rules are opposed to each other just because they belong to a
particular field. Further analysis is needed where the law is applied.
In a sense, the two questions aforementioned may simply be the two sides of
the same coin. In the case of an overlapping field between contract law and tort law,
whether the coexistence (a concurrence of claims or Anspruchs Normen Konkurrenz)
or the exclusion (Gesetzeskonkurrenz), when legal norms apply, should be considered
depends on the solution to the first question, given the choice of legal effects in the
sense of judicial adjudication. If we agree that the substantive goal of the remedy
for the rights and interests should take precedence over the normative form under
2 See Christian von Bar, Gemeineuropäisches Deliktsrecht (Vol. 1), Zhang Baoxin Trans, Law Press
China, 2001, p. 505.
2 CurrentSituationofTheoreticalResearch 3
certain conditions, the specific application of law may make different evaluations
on the differences in independent effects of the two laws. And this, beyond the
traditional theory of concurrent liability, is the basic idea of Anspruchs Normen
Konkurrenz, or the full normative integration theory. The legal practice also partly
leads in this direction. For example, according to Anspruchs Normen Konkurrenz,
the effect of concurrent liability should be the maximum benefit the obligee can
obtain in accordance with different norms of a claim (which is different from the
concurrence of claims to determine the full remedy effect in accordance with the
norms chosen). At the same time, the judicial practice expands its usual scope of
protection in a single lawsuit, such as protecting the mental distress in the case of
breach of contract and considering the damage of performance interest in the lawsuit
for tort. While traditional legislation centred on the normative nature is based on
interfering acts, such expansion is often based on the modern legal objective, that is,
the protection of the aggrieved party. The underlying change will inevitably result in
more common grounds between contract and tort in terms of liability norms, thereby
expanding the scope of the intermediate field, leading to more blurred boundaries
between contract and tort. If the overlapping field reflects on the institutions in terms
of the logical construction of contract and tort law, the fuzzy field raises new questions
regarding institutional construction beyond the boundary of these two laws: What are
the characteristics of the intermediate field between contract law and tort law? What
effects does this intermediate field have on the institutional construction of the two
laws? How can we assess the significance and limitation of the distinction between
tort and contract? and What arrangements might be made for the legal regulation
mode in the intermediate field?
If we do not evaluate or reflect on the above-mentioned changes and their subse-
quent consequences in contract and tort law, the system of the Civil Code of the
People’s Republic of China and its inherent balance of interests will be inevitably
confusing. Only when the institutional effect is caused by the change of specific
modes of regulation can the changes be appropriately evaluated.
2 Current Situation of Theoretical Research
Understanding contracts and torts should start from their practical orientation.3
Generally speaking, the scope of foreign scholars involved in this problem and
the method used is relatively affluent. American scholar Hillman introduced and
reviewed the contemporary contract theory in detail. In his opinion, contract law
is a mixture of contradiction and difference, which is composed of special rules
regulating different kinds of contracts and contains many exceptions and contrary
principles. Although they reflect the normative choice of the society, a highly abstract
3 Laws formulated in accordance with the normative nature must have their functional presupposi-
tions, and different functions are regulated in different ways; the greater the functional difference,
the more meaningful the distinction is, and vice versa.