摘要
债权人引起给付不能的情况既包括他违反合同上的给付义务、附随义务,也扩展于受领迟延之后的风险负担移转。即便违约责任的归责原则采用严格责任,债务人也不必为债权人所引起的给付不能承担责任,因为由此发生的风险本就不在其承担范围。债权人因其自身的违约行为而失去其解除权,债务人仍享有对待给付请求权。考虑到债务人的对待给付请求权也具有损害赔偿的特征,损益相抵、与有过失等原则也应在计算数额时加以考虑。
Impossibility of performance due to the debtor includes the breach of the contract＇s obligation to perform and subordinated duty and extends to the transfer of the risk burden after the default in acceptance. Even if the imputation prin- ciple of liability for breach of contract adopts strict liability, the debtor does not have to be liable for the impossibility of performance caused by the creditor, because the risk is not in his scope. If the creditor loses its right of rescission because of its own breach of contract, the debtor retains entitlement to consideration. Since the debtor＇s entitlement to consideration has the characteristics of damages, profit and loss offset and the principle of negligence etc. should also be considered in the calculation of the amount.
出处
《法律科学（西北政法大学学报）》
CSSCI
北大核心
2018年第5期143-154,共12页
Science of Law：Journal of Northwest University of Political Science and Law
关键词
给付不能
受领迟延
债权人负责
对待给付
合同解除
impossibility of performance
default in acceptance
responsibility of debtor
consideration
rescission ofcontract
