A Comparative Study on Liability Criterion for Breach

There exist two different types of liability criterions for breach in contract law: strict liability and liability, which developed respectively in common the law system and civil law system. Strict liability makes a party responsible for breaching the contract, regardless of any fault on its part. It comes from the old doctrine of pucta sunt servanda, and makes every effort to enforce the contract. Fault liability can only be enforced if proved beyond reasonable doubt that the party' s contravention was intentional or reckless. Intrinsic factors work under this doctrine, so the parties are forced to behave in good faith. Though each of them has its own advantages and disadvantages, both act perfectly in their own law system in early days. However, when new problems arise along with social development, they are no longer suitable for different situations. Since the 19th Century, each principle began to assimilate the other's strong point and to offset its weakness. Lots of new institutions were born to settle new disputes. In the civil law system, people created theories like the so - called subjective impossibility, and at the same time set down special provisions for some special contracts. In the common law system, it is frustration and implied terms that were developed to meet the new situation. All of these indicate clearly that the two criterions are combining and fusing into a dualistic system. Looking back into the history of the Chinese contract legislation, it appears that the focus of the liability criterion for breach has changed since 1980s from liability to strict liability. Some scholars even think that China has completely adopted strict liability for the breach of contract. However, we should realize that the sole criterion system for liability has had its own unavoidable shortcomings. It gives no attention to the levity of practice and cannot therefore satisfy various needs in true - life. Compared with the sole liability criterion system, the dualistic one turns out to be more helpful in protecting the parties' legal rights, reducing the functioning cost of law, and fulfilling the contract law system. It is also consistent with the modern development of civil law from formal justice to real justice.