2009 Fiscal Year Final Research Report
A Study on Creditor Liability when the Creditor caused the Debtor's Performance Obstacles
| Project/Area Number |
20830072
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| Research Category |
Grant-in-Aid for Young Scientists (Start-up)
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| Allocation Type | Single-year Grants |
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| Research Field |
Civil law
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| Research Institution | Kobe City University of Foreign Studies |
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Principal Investigator |
SAKAGUCHI Kou Kobe City University of Foreign Studies, 外国語学部, 講師 (20508402)
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| Project Period (FY) |
2008 – 2009
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| Keywords | 民法 / ドイツ法 / 受領遅滞 / 履行不能 / 危険負担 / 過失相殺 / 一部解除 |
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| Research Abstract |
This research aims at studying legal dogmatics when the debtor's performance becomes impossible under the bilateral contract and not only the debtor but also the creditor is contribute to the impossibility to perform. The major findings of a comparative analysis of German law are summarized as follows. First, to make a precise reflection of a contribution ratio of each party in the legal effect, we need that a claim for counter-performance exists or a claim for damages is granted to the debtor in exchange for an extinction of a claim for counter-performance. Second, when the debtor's claim for counter-performance exists, we need to modify all of the creditor's remedies which extinguish a claim for counter-performance. Third, when a claim for damages is granted to the debtor, it matters if there is creditor's nonperformance. Fourth, when we make a modification of the legal effects, following 3 points mainly need to be considered. Respect for the value relevance between performance and counter-performance ; a precise reflection of a contribution ratio of each party in the legal effect ; consideration of the particularity arising in cases when counter-performance is nonmonetary debt.
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