Research on Contractual Obligations: Focusing on Employer''s Obligations to Cooperate
Date Issued
2014
Date
2014
Author(s)
Hsu, Chen-Shin
Abstract
Under the practice of construction, the employer is not merely burdened with the obligation to pay, but undertaken with some kind of legal obligation to cooperate, which is governed by ROC Civil Code Article 507. However, this regulation does not provide with the answer to when this obligation falls on the employer, how far is the content, and whether the contractor is able to claim with other rules except this regulation once the employer breach the duty to cooperate. On analysis with those questions, the source of those is the difficulty on identification of the duty to cooperate under the categories of obligation deriving from the German Law. From this viewpoint, Chapter Two starts from synthesizing whole ROC judgments, following by comparison with Implied Warranty/Term in English Law, in order to review the categories of obligation deriving from the German Law. Furthermore, the thesis argues that the duty to cooperate is the real obligation, which is formed by determination of efficiency, rather than the abstract and ambiguous “good faith” selected by ROC jurisdiction and theories.
Second, the right for the contractor to claim while the employer breach the duty to cooperate is the topic of Chapter Three. English Law and International Contract Model furnish with a great diversity of right for the contractor to claim against the employer, which strictly reflects the disadvantages of ROC Civil Code Article 507.
Third, whether the employer’s duty to cooperate can be exempt from the clause or contract, relating to the regulation of contract, is the great disputes on practice and will be discussed at Chapter Four. The thesis will compare with the jurisdiction on No-Damages-for- Delay clause in English Law and the ROC judgments at first, then jump to some useful and fairly conclusion.
Finally, the thesis will utilize the concept mentioned above to discuss with some kinds of disputes on duty to cooperate in construction practice at Chapter Five. Through the complete and carefully analysis on each categories of dispute, the thesis eventually jumps into conclusion at Chapter Six.
Subjects
民法第507條
協力義務
默示擔保
效率
免責約款
Type
thesis
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