A Comparison of Termination and Withdrawal in Contract Law: A Focus on European Contract Law
Date Issued
2015
Date
2015
Author(s)
Pan, Yang-Ming
Abstract
The aim of this book is to make suggestions for termination and withdrawal, a special termination, in Taiwan law by using the comparative legal methodology. It involves a comparison of termination in PECL, DCFR, BGB, CRD and Taiwan law, a comparison of withdrawal in PECL, DCFR, BGB, CRD and Taiwan law and a comparison between termination and withdrawal. In the process of comparing, this book will set out the differences in PECL, DCFR, BGB, CRD and Taiwan law, then have discussions on the important issues, finally make suggestions or comments for Taiwan law. After having a comparison of termination, there are several suggestions for Taiwan Civil Code. First, termination should be based on the breach of contract and not on whether the debtor is imputed. Even though damages is based on whether the debtor is imputed, termination which has a different aim needn’t be based on that, for example BGB. Secondly, anticipated fundamental non-performance should be the ground for termination in Taiwan law. It can deal with the problem of anticipatory repudiation in practice. Thirdly, Taiwan law should allow termination for inadequate assurance of performance when there is a reasonable belief of anticipated fundamental non-performance and assurance is sought, because Art 321 BGB and Art 83 Swiss Code of Obligations which Art 265 Taiwan civil code is based on both have been modified and it can protect the expectation of the creditor. After having a comparison of withdrawal, there are several comments for the revised Taiwan Consumer Protection Law. First, consumer contract law should be integrated into Civil Code. This book set out the position where withdrawal should be located in Taiwan Civil Code. Secondly, in addition to distance contract, the revised Taiwan Consumer Protection Law should provide that there are exceptions to the right of withdrawal in door-to-door contract. When the cost of withdrawal exceeds the benefit of withdrawal in door-to-door contract, a consumer shouldn’t have the right of withdrawal and the restriction on freedom of contract should be removed. Thirdly, it is preferable that Taiwan Consumer Protection Law provides that the breach of the information duties on the right of withdrawal will extend the withdrawal period and there is a maximum period of the withdrawal. After having a comparison between termination and withdrawal, there are two suggestions for Taiwan law. First, there should be special rules of termination for consumer sales contract, for example making termination easier for a consumer. Secondly, Taiwan law should provide that when a consumer concludes a sales or service contract with a business and concludes a credit contract with a bank to finance the sales or service contract, if the consumer exercises the right of termination or withdrawal from the sales or service contract, the effects of termination or withdrawal extend to the credit contract. The bank should undertake the risk that the business cannot return the payment of money. Finally, this book will set out the differences between general contract law and consumer contract law and discuss the interaction between consumer contract law and general contract law in the future.
Subjects
termination
non-performance
fundamental non-performance
rescission
withdrawal
PECL
DCFR
BGB
CRD
Type
thesis
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