風險承擔作為違約賠償歸責原則之基礎

Risk Distribution as the Foundation of Attribution for Compensation in Breach of Contract

就債務不履行之損害賠償責任，歐陸法採過錯責任主義，普通法採嚴格責任主義，二個法系所採之歸責原則不同。就違約賠償的責任基礎，本文認為契約責任係以風險分配原則作為基礎，非如侵權責任以過錯為基礎。其次，本文就歐陸法及普通法具有共識的給付義務歸責原則進行討論，亦即在採嚴格責任的金錢之債與種類之債，以及採取過錯責任的勞務給付之債及特定物買賣之債，認為契約風險承擔，實為此等債務類型歸責原則的理論基礎。
再者，本文就歐陸法與普通法採取不同歸責原則的一般債務，論述過錯概念的實際功能。在歐陸法的過錯責任主義，債務人實際上非因其過錯而負違約責任，過錯概念僅作為債務人違約的免責事由。在普通法的嚴格責任主義，過錯作為契約挫敗之免責事由的基礎，與歐陸法具有類似性。就二個法系的實務運作而言，債務人最終承擔債務不履行之契約風險。

On a claim for damages for breach of contract, the European Continental Law adopts fault liability, while the Anglo-American Common Law sticks to strict liability. This paper contends that risk distribution between the parties to a contract is the real foundation of the contractual liability rather than the parties’fault, which is the foundation of liability in tort. In order to elaborate on this contention, this paper first discusses some types of debts which follow the same principle of attributability, i.e., fault liability or strict liability, between Continental Law and Common Law. The types of debts that follow strict liability are debts of money and debts of sales of generic goods. The types of debts that follow fault liability are debts of service contract and debts of sales of specific goods. Among these types of debts, the risk distribution of contract is the common basis of either strict or fault liability in both Continental Law and Common Law.
Further, this paper explores the real function of fault in the principles of fault liability and strict liability. In Continental Law, a debtor is liable not because of its fault but because of its inability to be excused from its breach of contract. The reason is that the fault of a debtor is presumed by law, which transfers the burden of proof of no fault to the debtor, rather than the creditor who makes a claim for damages on breach of contract. Accordingly, the concept of fault, in reality, does not play a role as a requirement to impose contractual liability on a debtor, but is seen to be a basis of excuse, which shall be proved by the debtor. In Common Law, even if a strict liability is enforced, no fault is a requirement for a debtor to allege an excuse based on frustration. All in all, fault plays a similar role as a base of excuses in both Continental Law and Common Law.