Article 186
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 choose to request that it bear liability for breach of contract or tort liability.
I. Purpose of this Article
This article is about the competition between liability for breach of contract and liability for tort.
II. Evolution of the Provisions
As for the competition between liability for breach of contract and tort liability, the original General Principles of the Civil Law did not provide for it. Article 122 of the original Contract Law stipulates that: "Where the personal or 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." The original General Provisions of the Civil Law basically followed this provision, but only made some changes to the text, and provided provisions on liability competition, which was retained in the General Provisions of the Civil Code.
3. Interpretation of Provisions
This article is a provision on the competition between liability for breach of contract and liability for tort.
Competing civil liabilities, i.e., competing claims, refers to the phenomenon that two or more types of civil liabilities arise due to the emergence of certain legal facts, and the various civil liabilities conflict with each other; The competing civil liabilities have the following characteristics: (1) The competing civil liabilities are caused by the violation of civil obligations, and the liability is the inevitable consequence of the violation of statutory obligations. (2) Several civil liabilities arise from a breach of civil obligation. and (3) a conflict between several responsibilities arising from an act. If the same civil violation meets the requirements of several types of civil rights protection at the same time, it constitutes a competition of civil liability.
The liability for breach of contract and the liability for tort as provided for in this article are competing, which is a breach of contract, which gives rise to both the right to claim damages for breach of contract and the right to claim damages for infringement, and the content of the relief of the two claims is the same, and the right holder can only exercise one right of claim. When this claim is fulfilled, another claim is extinguished. For example, if a service provider causes personal injury to a consumer, the victim may choose to sue for damages for breach of contract or tort for damages.
Although this article only stipulates the competing rules of liability for breach of contract and tort liability, it also provides a legal basis for the competing liability of other civil liabilities, such as the competition between tort liability and liability for unjust enrichment, and such rules should also be applied.
4. Cases
Xie Mouxing and Lai Moumou v. Suncity Swimming Pool Co., Ltd., a service contract dispute case
Facts: Plaintiffs Xie Mouxing and Lai Moumou alleged: The defendant opened a swimming pool and did not provide relevant facilities in accordance with regulations, and lifeguards were not on duty at the scene, so that the plaintiff's son Xie Mouchao died after drowning because he could not be rescued in time. The plaintiff argued that Xie had paid a fee to swim in the swimming pool opened by the defendant, and that the two parties had formed a service contract relationship, and that the defendant had the obligation to ensure Xie Mouchao's personal safety. Xie Mouchao died because the service provided by the defendant was defective. If the defendant fails to perform his obligation to ensure personal safety, he shall bear liability for breach of contract. The application for an order of compensation against the defendant. The court held that the plaintiffs Xie Mouxing and Lai Moumou had clearly chosen to sue in accordance with the legal relationship of the contract, requesting that Suncity Company be ordered to bear the liability for breach of contract, and that the request was legal and should be supported.
5. Analysis
The case involved the provisions of Article 186 of the Civil Code, which is in line with Article 122 of the Contract Law. In this case, Xie Mouchao, the child of plaintiffs Xie Mouxing and Lai, died while swimming in the swimming pool operated by the defendant Sun City Swimming Pool Co., Ltd., and the plaintiff and the defendant actually formed two legal relationships. The first is that for personal injury that occurs in the course of receiving services, the victim has the right to demand that the operator bear the liability for damages for breach of contract in accordance with the above-mentioned legal provisions. Xie Mouchao went swimming in the swimming pool of Sun City, and the two parties also formed a contractual relationship with consumption and service as the content, which was regulated by the Contract Law. The second is that for personal injuries that occur in the course of receiving services, the victim has the right to demand that the operator bear the liability for tort damages in accordance with the provisions of the tort legal relationship. Article 186 of the Civil Code stipulates that if the personal rights and interests or property rights and interests of the other party are damaged due to the breach of contract by one party, the injured party has the right to choose to request it to bear the liability for breach of contract or tort liability. In this case, the plaintiffs Xie Mouxing and Lai Moumou have now clearly chosen to sue in accordance with the contractual legal relationship, requesting Suncity Company to bear the liability for breach of contract, and the court should apply the relevant provisions on liability for breach of contract and hear the case.