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In FIDIC contract by accident period damages
From;    Author:Stand originally

By accident period damages (LiquidatedDamagesDelay) it is one of FIDIC contract main idea. The different explanation that no matter be employer, engineer or contractor,hopes to read aloud through coping with this entirely will maintain the interest of oneself. The person that use for the help masters better and apply this one concept, the article is right FIDIC " term and conditions of contract of civil engineering construction " the 4th edition (1987, say below " Red Data Book " ) and " construction term and conditions of contract " (1999 the first edition, say below " new Red Data Book " ) in about by accident period the content of damages makes one brief analysis.

One, by accident period damages often is called inside course of study " delay fines " or " fixed penalty due to breach of contract " . Although this kind of formulation accords with the legal custom of our country and relevant provision, but have discrepancy however with the original idea of FIDIC contract. According to traditional contract law, make when one party break a contact other one party is damaged in, break a contact just should make compensation to the other side. Basic principle of compensation is to carry economic compensatory kind (be like feasible word) the state that makes the financial position of the other side restores to be fulfilled normally to the contract. Accordingly, a it is not a contract already penalty to another, also not be the court is punished to break a contact is sentenced just. To this, people's Republic of China " contract law " the 113rd regulation: "Obligation of contract of nonperformance of party one party perhaps fulfills contract obligation not to accord with an agreement, cause losing to the other side, the loss compensates for the forehead to ought to be equivalent to the loss that place of break a contact causes, the interest that after including a contract to fulfill, can acquire... " .

The damages in economic contract can divide it is two kinds: Namely general damages (GeneralDamages) special damages (SpecialDamages) . By accident period the category that damages belongs to general damages, because oneself reason is caused,point to contractor only by accident period cause a project cannot on schedule finishing and the compensation that makes to employer. And the idea of fixed penalty due to breach of contract is relatively broad extensive, it can show contract both sides agrees not only by accident period damages, the break a contact of the other and fixed amount that also can show both sides agrees in the contract is compensated for. Accordingly by accident period damages can be " fixed penalty due to breach of contract " a medium kind, and may not of fixed penalty due to breach of contract is only " by accident period damages " .

By accident period a of damages important characteristic is, below the circumstance that did not extend the argument of time limit for a project properly in contractor and fails to press contract complete, employer need not prove whether he produces loss or losing size, can capture damages expenses to contractor. In FIDIC contract, it is contractor fails on schedule the finite responsibility that complete place assumes; Also be employer to contractor by accident period the full right that complete place has.
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