美国合同法违约救济之期待利益及其限制

肖海鹏

摘要：眾所周知，美国合同法以保护合同当事方的期待利益为其首要目的；期待利益的计算，则采用“履行所需成本法”和“价值减损法”。同时合同纠纷的法律实践中，也逐步发展出了限制期待利益范围的数项原则， 即可预见性原则、确定性原则和可避免之损失原则。本文通过对期待利益具体阐述及案例分析，瞥得美国合同法期待利益及其救济限制之一隅，揭示了美国合同法下的期待利益，仅仅为补偿性赔偿金而不带有任何惩罚性；而对期待利益的限制原则，则是为了确保了期待利益作为补偿性赔偿金的纯粹性。同时希冀对研究我国合同法“可得利益”保护的学者，本文能提供参考价值。

关键词：合同纠纷 救济 期待利益

▲▲一、Introduction

While contracts are the very foundation of all civilized existence， breach of contract virtually haunts every corner of the world throughout human history despite the fact that any violation of a contract may deprive certain parties in a broken deal of the profits expected. That is where the remedies for breach came in， which is intended to protect the damaged parties and their expectation interest by requesting the performance of contract， claiming for monetary damages and so on. This paper is to present a sketch of what is expectation interest under the American contract law and its limitations，thus furnishing some reference which might come in handy where Chinese scholars want to study the US contract law in detail.

▲▲二、Expectation Interest

（一） Definition Expectation interest refers to the extra interest which a non-fault party to a breached contract would have received had the contract been performed.

（二） The Measurement of Expectation Interest

1.General Principles It is note-worthy that if the default event occurs before the victim of contact violation tries to fulfill the contractual obligation on his part， the cost of the unnecessary execution of the contract on the non-fault part should be subtracted from the liquidated damages， which conforms to the principle of circumventing further or avoidable loss.

The specific ways of calculating expectation interest are expatiated on as follows.

2. Cost of Completion When any project or contract is not completed on time， the further amount required to finish the task is called cost of completion.

A case in point is about an engineering construction contract. A building contractor and the proprietor signed a housing construction contract worth $ 700，000 （including the cost of materials）. The contractor is paid by the proprietor according to the construction progress. The contractor refused or was unable to continue the contract after he partially performed the contract and received $400，000 for the project. At this point， if the owners hire other contractors to complete the work， it takes him another $ 400，000. Thus the court decrees that the contractor， the defaulting party who failed to comply， pay the proprietor only $100，000.

3 .Diminished Value The diminished value or the diminution in value is identified as the difference in value between the outcome of a fulfilled contract and that of an unexecuted contract.

In Jacob & the Youngs， Inc. V. Kent case， the contractor used galvanized iron pipes in the building process whose brand was a far cry from that of pipes provided in the contract but whose physical structure is absolutely consistent with that of pipes stipulated. If expectation interest was calculated by quantifying the cost of completion， it should be inclusive of the cost of the removal of pipes already in the house and the re-installation fees of new pipes conforming to the contract in both their brand and physical structure. Evidently， this violates the principle of circumventing further or avoidable loss. According to Justice Cardozo in this case， if the performance of the contractor engendered structural defects which might put the innocent party， namely the proprietor， in jeopardy， the owner of the property should be entitled to the amount equal to the replacement cost or repair cost. Notwithstanding， in this case， the flaws in the pipes in the housing were not structural and the physical structure of the pipes used by the contractor was in consonant with the terms of the contract products. These facts could not support the request of the plaintiff claiming for the money enough for redoing the installation. Instead， the plaintiff got a token amount as damages which equaled the diminution in value， e.g. the difference in value between the housing after the contractor finished his job and the ideal housing with the pipes stipulated.

▲▲三、The Limitations of Expectation Interest

The relief system under the American Contract Law imposes certain limitations on the scope of the expectation interest， e.g. the foreseeability rule， the certainty rule and the avoidability rule.

（一） The Foreseeability Rule

Generally speaking， the Foreseeability Rule consists of the following points：

1.The default party is not liable for losses that are unforeseeable when the contract is sealed.

2.The foreseeability as to a contract only concerns the default party rather than both parties to a contract dispute.

3.Only the moment when the default party signs the contract is taken into consideration whether or not the breaching party can foresee the potential consequence of violating the contract.

4.Objective criteria are applied when evaluating the foreseeability on the wrongdoers part， which means both what an ordinary person is capable of foreseeing under the given circumstances as well as what the wrongdoer predicts indeed is taken into account.

（二） The Certainty Rule

Calculation should be conducted with definite certainty. In cases of uncertainty， many jurisdictions have adopted that the breaching party should bear the undesirable consequences rather than the aggrieved party. The loss that cannot be proved with reasonable certainty should be excluded during the calculation.

（三） The Avoidability Rule

A non-breaching party cannot claim for damages he could have reasonably avoided without undue risk， burden or humiliation.

For instance， in terms of a personal service contract， the employer can subtract from the damages the amounts that he can prove the employee could have actually earned or， with reasonable efforts， might have earned from other employment.

▲▲四、Reference Value for the Contract Law of China

Similar to the “expectation interest” under the US Contract Law is the acquirable interest in Clause 1， Article 113 in the Contract Law of China， which provides that should breach of contract happen when the default party refuses to honor the contractual obligation on his part， the plaintiff is entitled to the damages which equal the inevitable loss due to the breach of contract and the acquirable interest following the assumed completion of the contract， but does not exceed the maximum amount that the breaching party foresees or can actually foresee as the loss that the plaintiff will suffer when he finally resolve on breaking the contract. Nevertheless， the lack of the similar specific measurement of “acquirable interest” as is in the Restatement leaves lawyers and judges much room to maneuver， which engenders the limbo the innocent parties are currently in. The Supreme Peoples Court or the Supreme Peoples Procuratorate may issue judicial interpretations for the acquirable interest under the Contract Law of China with certain rules regulating the application of acquirable interest， thus specifying the measurement that often varies form case to case and perfecting the legislation that characterizes civil law countries.