УБЫТКИ КАК ОДНО ИЗ СРЕДСТВ ПРАВОВОЙ ЗАЩИТЫ ПО ПРАВУ ФР

Abstract

INTRODUCTION. This survey presents overview of damages and other contractual remedies under law of Germany and law of England. MATERIALS AND METHODS. The study is based on a considerable amount of materials, including legal acts, decisions of judicial institutions, national legislation of England and Germany, as well as classical and contemporary doctrinal studies of Russian and foreign lawyers. The methodological basis of the research was the general scientific methods (logical and system analysis, the dialectical method, methods of deduction and induction) and special methods of cognition (historical and legal, comparative legal and formal legal methods, method of legal modeling and forecasting). RESEARCH RESULTS. The present comparison of damages and other contractual remedies available to legal entities and individuals under law of Germany and law of England shows the differences of legal systems of these countries. The differences in the legal systems entail the differences in remedies and its implementation. There are remedies under the law of England which are not contained in German law and there are remedies not very well developed in England but widely upheld by the law of Germany (for instance punitive damages and specific performance). DISCUSSION AND CONCLUSIONS. Provided that German law is a classical representative of continental legal system it targets to force a debtor to perform its obligations via well developed means of forcing in case a debtor fail or reject to perform in a due course. Damages in the case of contractual misconduct are regarded as a supplementary instrument applicable in situations where performance forcing means could not be applied for some reason. From the German academic approach standpoint the performance in kind is the main remedy, at the same time for the English law approach the most important thing is whether damages could be recovered. As a result for the English law the main question not in the content of an obligation but in negative consequences of its breach. English law doctrine evaluating breach of contract takes into account mainly commercial applicability and economic efficiency, meantime the German law takes into account moral aspect as well.