On the competition between liability for breach of contract and liability for tort?

The so-called competition between liability for breach of contract and tort liability refers to the fact that the breach of contract by one of the parties to the contract meets the elements of tort at the same time, resulting in the liability for breach of contract and the liability for tort arising together, and the right to claim for liability for breach of contract overlaps with the right to claim for tort liability, forming a competition of claims. For example, if A entrusts B to repair a television set, but B sells the TV set to a bona fide third party C without authorization, A can pursue B's tortious liability for property infringement and demand that B bear the liability for breach of contract for non-performance of the contract.

It would be clearly unfair to allow the injured party to exercise both claims without restriction, which would result in double liability on the breaching party. Therefore, Article 122 of the Contract Law of the People's Republic of China stipulates that: "If the personal and property rights and interests of the other party are infringed upon due to the breach of contract by one of the parties, the injured party has the right to choose to require it to bear the liability for breach of contract in accordance with this Law or to require it to bear tort liability in accordance with other laws."

That is to say, in the case of competing liability for breach of contract and tort liability, the injured party can only choose either: either file a lawsuit for breach of contract and pursue the other party's liability for breach of contract, or file a tort lawsuit and pursue the tort liability of the other party, but cannot exercise two claims at the same time.

What do you want to ask? There are such situations, and they are very common.

The competition between breach of contract liability and tort liability refers to the fact that the breach of contract carried out by the parties has the dual characteristics of breach of contract and tort, resulting in the simultaneous occurrence of breach of contract liability and tort liability. However, the perpetrators bear different legal responsibilities, which will lead to different liability consequences.

Competing liabilities refer to the fact that two or more legal liabilities arise from a single breach of an obligation. However, the perpetrators bear different legal responsibilities, which will lead to different liability consequences. In civil legal relations, sometimes breach of contract may also cause tort consequences.

For example, the power supply department fails to supply power in accordance with safety standards, and disperses or defaults to suspend power supply, causing personal and property damage to users. Another example is that the distributor provides defective products, causing personal or property damage to the buyer. Liability for breach of contract refers to the civil liability that a party shall bear in accordance with law if it fails to perform its contractual obligations or the performance of its contractual obligations does not conform to the contract.

Liability for breach of contract is an important form of contract liability, which is different from the consequences of an invalid contract, and the establishment of liability for breach of contract is premised on the existence of a valid contract. Liability for breach of contract is also different from tort liability, which may be agreed upon in advance by the parties at the time of entering into a contract; It is a property liability. Different choices of liability for breach of contract and liability for tort will have different legal consequences and directly affect the interests of the parties.

The main differences between liability for breach of contract and liability for tort are: 1. The difference in the principle of imputation. The former mainly adopts the principle of no-fault liability; The latter generally applies the principle of fault liability, and the principle of no-fault liability applies in particular.

2 Liability is different. The former is liable as long as the breach of contract is not harmful; The latter is no liability without the fact of damage. 3 Limits of liability vary.

The liability of the former is mainly for property damage; The latter also includes personal injury and moral compensation, among others; 4 The liability of third parties is different. In the former, if the contract cannot be performed due to a third party, the debtor shall first be responsible to the creditor and then recover from the third party; The perpetrator of the latter is only responsible for his own fault. 5. The jurisdiction of litigation is different, the former is under the jurisdiction of the court of the place where the defendant is domiciled and the place where the contract is performed, or the court of the aforesaid two places and the place where the contract is signed, the place where the plaintiff is domiciled and the place where the subject matter is located can be selected according to the agreement. The latter is under the jurisdiction of the court at the place where the infringement occurred and where the defendant is domiciled.

Legal basis: Article 1167 of the Civil Code: Where the first round of infringement endangers the personal or property safety of others, the infringed party has the right to request the infringer to bear tort liability such as stopping the infringement, removing obstacles, and eliminating dangers.

A legal fact or legal act can sometimes give rise to two legal relationships at the same time, the most common being the coexistence of the creditor's right relationship and the property right relationship, or the act of being sued by Liang constitutes both breach of contract and civil infringement. The plaintiff may choose one of the two to file a lawsuit in his favor, and the court to which the suit is brought shall not refuse to accept it on the ground that there are other causes of action. However, a party may not file two lawsuits on the same legal fact or legal act with different causes of action.

Legal basis: Article 186 of the Civil Code of the People's Republic of China: If the personal rights and interests and property rights and interests of the other party are harmed due to the breach of contract by one of the parties, the injured party has the right to choose to request it to bear liability for breach of contract or tort liability or matching.

It is held that the debtor who bears a contractual obligation cannot foresee the tort liability outside the contractual relationship, but can only foresee the scope of its debt and the consequences of non-performance.

2. Limit competition. That is, in principle, it recognizes the competing liabilities, but there are certain restrictions on the choice of litigation. It is held that the plaintiff has the right of action with a dual cause of action only if the defendant violates both the legal norms of contract and the legal norms of tort, and the subsequent violation of the legal norms of tort constitutes infringement even in the absence of a contractual relationship.

At the same time, the two types of liability are not mutually exclusive.

3. Allow and choose coopetition. That is, the plaintiff can file a contract lawsuit or a tort lawsuit based on the two claims arising from the illegal acts. In addition, if one claim is rejected due to the expiration of the statute of limitations, another claim may be exercised.

It is believed that the legal norms of contract smart sales and the legal norms of tort should not only apply to typical breach of contract and tort, but also should be jointly applied to dual illegal acts.

Legal basis: "Civil Code of the People's Republic of China" Article 1167: Where the tortious act endangers the safety of the person or property of others, the infringed party has the right to request that the infringer bear tortious liability such as stopping the infringement, removing obstacles, and eliminating dangers.

The competition between liability for breach of contract and liability for tort means that the breach of contract by one of the parties to the contract meets the elements of tort at the same time, resulting in the liability for breach of contract and the liability for tort arising together, and the right to claim for liability for breach of contract overlaps with the right to claim for tort liability, forming a competition of claims.

Article 186 of the Civil Code of the People's Republic of China: Where the personal rights and interests or property rights and interests of the other party are harmed due to the breach of contract by one of the parties, the injured party has the right to request that Ling Chongming choose to request that it bear liability for breach of contract or tort liability. Article 577 of the Civil Code of the People's Republic of China: Where one of the parties fails to perform its contractual obligations or the performance of its contractual obligations does not conform to the agreement, it shall bear liability for breach of contract such as continuing to perform, taking remedial measures, or compensating for the losses of the judgment.