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Author Topic: Help: What's the diferences and relationships between Mitigation and C'tri Negli  (Read 2618 times)

lincolnsgrandson

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First, are you a 0L?  If so, put down the books and step away from the computer.  You are only confusing yourself needlessly.

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I agree. You're having serious problems understanding legal concepts.  You're confusing principles that aren't so difficult to distinguish, and you're going to have your sh-t together real soon.
Are you using commercial study materials?

Rushing

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I really don't know what you're asking; maybe if you gave a more concrete example?

But generally, fault doesn't come into play in contracts, at least not so far as liability for breach is the issue.  As Holmes argued (and his view has since become quite influential, and still is), liability in contract is utterly divorced from any principle of fault.  We don't care if the party was morally blameworthy or innocent in breaching his contract: the simple fact of the matter is, he breached, he failed to perform, he didn't keep his promise, and now he's liable.  It doesn't matter whether he failed to perform his promise due to events beyond his control: when you make a promise, you essentially say that X event shall come to pass, and if it does not, you shall have a claim against me for the value of that event coming to pass.  It doesn't matter if X is a promise to deliver carrots at a certain place and time or a promise that it shall snow in July in Vancouver.  Either way, if the promise is not performed/fulfilled, the promisee has a claim against you, whether keeping the promise was within your power or not.  And don't forget that even with things that we commonly think of a within our power (like delivery of goods), sometimes we still fail to keep these promises through no moral failing of our own (the truck breaks down, the carrots are blighted, etc.).  The law of contracts doesn't care: you're still liable, even if there was nothing you could have done, no precaution you could have taken, which would have made performance possible.


Since you argue that contract law has nothing to do with fault or wrong, how will you explain article 79 of CISG?

GW2L

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Since you argue that contract law has nothing to do with fault or wrong, how will you explain article 79 of CISG?

Have you read CISG Article 79?  It has nothing to do with fault.  It is about contract recission in the event of a harship.  It's very similar to the US concept of impracticability.

If you can't understand such basic concepts, you need to go see your professor.

Rushing

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Thank you for your good answers!

I have another question.

The examples you mentioned are both related to Torts.

Now my question is about Contracts.

Since contract liability is stick liability, can we conclude that there is no conception of contributory negligence in contract disputes?

Although the answer is quite obvious, I will explain...  If there is a contract dispute, the first question you need to ask is whether the aggrieved party's contributory negligence negated the mens rea material to an element of the offense.  If the answer to that question is yes, then you must determine whether the contract touches and concerns the land.  Because we are also dealing with strict liability, chances are the contract does touch and concern the land (Seeing as how only a rational basis test is applied).  It is important to note, however, that the court can only hear this case if the claim for damages is above $75,000.  Having said that, apply the usual Erie analysis to come up with the right answer.  Wherefore, I pray that you are not an actual law student (Please excuse my lame attempt to incorporate Legal Writing).

Although you may be confused with my answer, take heart in the fact that your question made even less sense.  If you are in fact a first year student, might I suggest dropping out?  If you are a 0L might I suggest withdrawing your applications?  Either alternative furthers the greatest good for the greatest number of people.

Do you know the development in English Law?
Have u read Contributory Negligence as a Defence in Contract (Law Com No 219)?
Thank u!