Summary
This chapter maintains both the rule that rescission or termination does not affect a claim for damages and the requirements of damages themselves.
5.1The Standard by Which the Path Opens
Even after the original transaction is ended, harm arising from that transaction may remain. The parties' duties of restitution and the protection of third-party rights are set out together, narrowing the object of restoration, after which the plaintiff seeks to end the contract and recover what has already been paid while also claiming damages arising from delay in performance. The circumstance that the transaction has ended and the harm that arose because performance of that transaction was delayed thus become the subject of the dispute together. In such a scene, the question is first posed whether rescinding the contract also means forgoing damages. Whether rescission is compatible with damages, and what opens the entrance to this remedy in which the two claims proceed together, is the scope addressed here.
The provision that answers this question is found in Civil Act Article 551. That Article provides that the termination or rescission of a contract does not affect a claim for damages. What this provision determines is limited. It sets out only the rule that an act of termination or rescission by the party ending the contract, or by the other party, does not extinguish the claim for damages itself—that is, it addresses only the relationship between the act of rescission and the claim for damages. This provision does not also state a determination of whether the party who elected rescission is a person entitled to claim damages, what harm is to be compensated, or to whom the delay in performance is attributable.
Alongside this, the requirements of damages themselves remain. Civil Act Article 390 provides that where the debtor has not performed in accordance with the content of the obligation, the creditor may claim damages. However, this does not apply where performance has become impossible without intent or negligence on the part of the debtor. The foregoing provision states that rescission does not bar a claim for damages; this provision states that damages separately require non-performance and a ground of attribution. The reason the two determinations cannot be merged into one is this: the fact that rescission has occurred does not establish that all requirements of damages are satisfied, and rescission does not, by itself, specify the items and amount of harm. Accordingly, the channel of this remedy opens where the respective requirements of performance, rescission, and damages are satisfied and the restitutionary performance and compensatory harm are specified without overlap.
The reason most strongly opposed to this standard is the risk of double recovery. If the plaintiff sets out both restitution of the consideration already paid and damages for delay in performance, there arises room for the same detriment, experienced once as a disadvantage of the contract, to be compensated twice. From the other party's position, insofar as the boundary between the liability to restitution and the liability to damages becomes unclear, the scope of defense must also widen. Yet if the means of pursuing several claims in parallel is barred on the strength of that risk alone, the way to protect the parties in a situation where it is difficult to determine whether to frame the matter as restitution or as damages is narrowed. Therefore, parallel pursuit itself is not barred; it is limited to opening the door of the channel after specifying performance and harm separately so that the same detriment is not repeated under different names. Even then, it cannot be written that the requirements and amount of damages are established merely by the fact of rescission.
Placing this distinction in a synthetic scene makes the contrast clear. What the plaintiff has already paid is written as the object of restitution, and the harm arising from delay in performance is written separately as an item of compensatory harm. Contractual performance, tender of performance, demand, declaration of intention to rescind, the object of restitution, and the items of harm become the record of judgment. Once this record is in place, the performance, parties, and conditions demanded can be specified in the prayer for relief. However, where the delay in performance requires a demand but the requirements of demand and non-performance are absent, or where, because of a defense of simultaneous performance, an unconditional demand for performance cannot be maintained, the entrance to this remedy closes. Where the relationship of simultaneous performance or refusal of performance as an exception to demand is not confirmed, the determination remains undetermined. If the fact that an intention not to perform in advance was expressed is confirmed, the necessity of a demand is reassessed.
The line that can be drawn in this section reaches no further. It is acknowledged that rescission and damages may be asserted together, but performance and harm are specified separately so that the same harm is not recovered twice under different claim names, and it is not the case that the requirements and amount of damages are automatically satisfied by reason of rescission. The standard that the entrance opens where the respective requirements of performance, rescission, and damages are satisfied and the restitutionary performance and compensatory harm are specified without overlap ends here. To what extent restitution and damages overlap, and whether the same detriment actually leads to double recovery, is not addressed here.
5.2The Conditions That Block Relief
The preceding section left the conclusion that this remedy operates where the respective requirements of performance, rescission, and damages are satisfied and the restitutionary performance and compensatory harm are specified without overlap. Now the question remains: under what conditions is this remedy blocked? The plaintiff seeks to end the contract and recover what has already been paid while also claiming damages arising from delay in performance. In this scene, the termination of the contract and the recovery of harm are divided into two distinct claims, and if one of them is blocked first, the appearance of the concurrently existing remedy also changes. Accordingly, it must be examined separately which condition bars which claim.
The provisions corresponding to this question are two. Civil Act Article 551 provides that "the termination or rescission of a contract does not affect a claim for damages." Here the subject is the party who terminated or rescinded, the act is that termination or rescission, and the condition is that a claim for damages exists separately. This provision merely declares that rescission does not extinguish a claim for damages; it does not determine the requirements of the claim for damages itself. Civil Act Article 390 provides that "where the debtor has not performed in accordance with the content of the obligation, the creditor may claim damages," but makes it an exception where "performance has become impossible without intent or negligence on the part of the debtor." Damages require separate requirements.
The reason Civil Act Article 551 opens the door to the concurrence of rescission and damages while Civil Act Article 390 separately requires the elements of damages is that the stages of the two determinations differ. Rescission is a declaration of intention ending the contract, while damages stand on the separate ground of non-performance. That the former is established does not mean the requirements of the latter are also satisfied. Thus, where the delay in performance requires a demand but the requirements of demand and non-performance are absent, or where, because of a defense of simultaneous performance, an unconditional demand for performance cannot be maintained, this remedy is blocked. The concurrence of this remedy means that the availability of claims under different means of recovery remains together; it does not mean that either claim is automatically established. A claim for damages must satisfy the requirements of Civil Act Article 390 on its own.
Pursuing several claims in parallel gives rise to the risk of double recovery. If the same loss is written down twice, as restitutionary performance and as compensatory harm, the scope of recovery exceeds the actual loss, and the other party must bear the unease of finding it difficult to predict which items will remain. Even so, however, it cannot be written that the requirements and amount of damages are established merely by the fact of rescission. The way to prevent the risk of double recovery lies not in narrowing the freedom of claim but in specifying the restitutionary performance and the compensatory harm without overlap. Since the concurrence of this remedy means that the availability of claims under several means remains together, the requirements of each claim are determined separately. The uncertainty pointed out by the counterargument remains, but that uncertainty cannot be resolved by recognizing the requirements and amount of damages wholesale on the basis of the fact of rescission.
On the facts of this scene alone, it does not appear whether a demand was made, whether non-performance continued, whether the debtor was intent or negligent, or whether the performance of the other party stood in a relationship of simultaneous performance. The description of delay in performance only suggests the possibility of delay and does not determine whether a demand is required. If the fact that an intention not to perform in advance was expressed is confirmed, the conclusion regarding the necessity of a demand changes. Where the relationship of simultaneous performance or refusal of performance as an exception to demand is not confirmed, it cannot be determined whether this remedy is blocked. Contractual performance, tender of performance, demand, declaration of intention to rescind, the object of restitution, and the items of harm become the materials of judgment.
What this section permits is the distinction that a claim for damages does not disappear merely because rescission has already occurred, and that damages separately require the requirements of Civil Act Article 390. What this section does not permit is the interpretation that an unconditional demand for performance can be maintained where the requirements of demand and non-performance are absent or where a defense of simultaneous performance remains, and the practice of writing that the requirements and amount of damages are established merely by the fact of rescission. It is possible to set out the two claims together, but the object of recovery must be specified without overlap, and a claim whose requirements are not satisfied does not come to life under the name of concurrence.
5.3The Boundary That Remains When There Is No Data
To deal with the harm that remains after a contract is rescinded, the end of the original transaction and the subsequent recovery must first be viewed separately. The preceding section took the view that this remedy is blocked where the delay in performance requires a demand but the requirements of demand and non-performance are absent, or where, because of a defense of simultaneous performance, an unconditional demand for performance cannot be maintained. In this scene, whether the requirements and amount of damages are determined at once merely by the fact that the contract was ended, or whether each of the two requires separate confirmation, remains as a question.
In answer to this question, Civil Act Article 551 writes that "the termination or rescission of a contract does not affect a claim for damages." In this provision, termination or rescission means ending the contract prospectively or extinguishing effects that have already arisen, and a claim for damages refers to one that remains separately. Here the author considers only the possibility that the party who ended the contract may claim damages, and takes the view that the conditions under which that claim will actually be accepted are not newly determined within this Article. This provision is not language that exempts even the requirements of damages themselves.
Bundling this provision together with the author's judgment, it is confirmed that the ending of the contract and the availability of a claim for damages are two separate stages. Here, the concurrence of remedies means that the availability of claims under different means of recovery remains together. It means that the means of recovery called restitution and the means of recovery called damages remain together, and that the fact that one is established does not itself satisfy the requirements of the other. Accordingly, where the relationship of simultaneous performance or refusal of performance as an exception to demand is not confirmed, the determination is left undetermined, and this is distinguished from the case where the remedy is blocked. Here, undetermined means a state in which the material does not yet support a determination, while a blocked remedy means a state in which confirmed conditions have closed the path of the claim.
The counterargument, that pursuing several claims in parallel gives rise to the risk of double recovery, aims at this distinction. If restitution and damages are demanded together for the same detriment, recovery may be recorded twice, and if the means that parties may assert together in uncertain situations are reduced, protection is also weakened. The author does not erase the double recovery and the gaps in protection pointed out by this counterargument. However, the author answers that this risk is not taken as grounds for eliminating the state of being undetermined, and that it cannot be written that the requirements and amount of damages are established merely by the fact of rescission. This answer leaves the disadvantage of the counterargument in place and is nothing more than a boundary for not writing items that have not been confirmed as though they had been.
The facts confirmed in this scene extend no further than that the party seeks to end the contract and recover what has already been paid, and that damages arising from delay in performance are also demanded. The object of restitution and the items of harm are written in the scene, but the facts constituting the requirements, such as the relationship of simultaneous performance or a declaration of intention to refuse performance, are not confirmed within this scene. Therefore, the requirements and amount of damages cannot be confirmed by the fact that the contract was ended and the demand for harm alone, and the remaining items are left undetermined.
Accordingly, what is permitted in this section extends only to setting out the distinction that, even if a contract is rescinded, the availability of a claim for damages remains together; recognizing the requirements and amount of that claim on the basis of the fact of rescission alone is not permitted. Not mixing in writing a determination left undetermined and a remedy already blocked because its conditions are confirmed also falls within the boundary of this section. Nor does one write matters that remain unconfirmed for lack of material as though they were immediately converted into an inability to obtain a remedy; this too issues from the same boundary.
5.4The Records Needed for Determination
If a contract is rescinded, does that also mean damages are forgone? Along with this question, what record is needed to determine its stage is also asked. The author asks, in this scene, how to distinguish the remaining demand for damages after the intention to rescind has been made known.
The source text corresponding to this question consists of two Articles. Here the subject is the termination or rescission of the contract, the act is a claim for damages, and the condition is that it does not affect that claim. Civil Act Article 390 provides that "where the debtor has not performed in accordance with the content of the obligation, the creditor may claim damages." This provision separately requires the elements of damages and sets a standard of judgment different from rescission.
Connecting the two provisions, the fact of rescission and the requirements of damages are placed at different stages. Article 551 only says that rescission does not affect a claim for damages; it does not confirm the requirements and amount of damages. The lack of performance required by Article 390 and the exception where performance has become impossible without intent or negligence on the part of the debtor must be confirmed by a separate record. The author therefore takes the view that, merely because the declaration of intention to rescind is confirmed, it cannot be written that the requirements and amount of damages are established in full. Stage determinations are made only on material recorded in the contractual performance, tender of performance, demand, declaration of intention to rescind, object of restitution, and items of harm, and absent records are not filled in by inference.
The counterargument, that pursuing several claims in parallel gives rise to the risk of double recovery, appears most persuasive. If the performance sought in restitution and the harm from delay are claimed together, the same detriment may be counted twice, and it becomes difficult to confirm whether the objects of recovery overlap. It also remains a practical inconvenience that narrowing the freedom of parties to assert several means together weakens protection in uncertain situations. The author, however, does not turn the fact of rescission itself into a waiver of damages in order to eliminate this risk. While leaving in place the possibility of double recovery, the disadvantageous part of the counterargument, the author answers that the requirements and amount of damages must be specified separately.
What is confirmed in the synthetic scene is only the intention to end the contract, the object of restitution already paid, and the demand for the item of harm arising from delay in performance. The form of the tender of performance, the fact and timing of the demand, and the manner of the declaration of intention to rescind were not presented as records. Accordingly, the relationship of simultaneous performance or refusal of performance as an exception to demand remains undetermined. From the scene alone, it cannot be asserted that the requirements of damages are satisfied or that the amount is confirmed.
Rescinding a contract does not mean that damages are also forgone, and the fact of rescission and the requirements of damages are confirmed by their respective records. The concurrence of remedies means that the availability of claims under different means of recovery remains together, but that possibility alone does not establish the requirements and amount of damages. If the object of restitution and the items of harm are not specified without overlap, the scope of recovery cannot be narrowed accordingly. Stages cannot be judged in advance by filling absent records with inference.
5.5Circumstances That Change the Decision
This judgment rests on the contractual performance, tender of performance, demand, declaration of intention to rescind, the object of restitution, and the heads of damage. Without that record, the conclusion remains undetermined. In this scene, the remedies for recovery divide into two. One is the recovery of the performance already handed over; the other is making good the loss arising from delay. The question whether rescinding a contract also means abandoning damages asks whether these two branches remain together, or whether rescission swallows up the other. And upon that question, once the fact that an intention not to perform in advance has been declared is confirmed, whether a demand is required is assessed anew.
The statutory language corresponding to this question is found in two provisions. Civil Act Article 551 declares, "Termination or rescission of a contract does not affect a claim for damages." (Civil Act Article 551). The subject indicated by this wording is the creditor who has rescinded or terminated, and the act is claiming damages after ending that contract. The condition is the single fact that the contract has been terminated or rescinded, and the core of the wording is that this fact does not function as a requirement that bars a claim for damages. However, this provision says only that the claim for damages is not barred; it does not mean that damages are thereby recognized. The requirements for damages are entrusted to a separate provision. Civil Act Article 390 provides, "Where the debtor fails to perform an obligation in accordance with its contents, the creditor may claim damages." (Civil Act Article 390). In effect, the former provision declares that it does not close the door, and the latter sets the conditions of the door that opens.
Placing these two provisions side by side clarifies the stages of the judgment. Article 551 establishes the rule that rescission and damages do not push each other aside. What the author calls the concurrence of remedies refers precisely to this point: a state in which the claimability of different remedies for recovery remains together. Article 390, by contrast, separately asks the conditions under which a claim for damages opens. Whether the debtor failed to perform in accordance with the contents of the obligation, and whether performance became impossible without the debtor's intent or negligence, are those conditions. Why must the two judgments be distinguished? Because the second judgment is not automatically passed merely because the first has been passed. The fact of rescission does not close the door to damages, but the fact that the door is open does not mean that the amount of damages is placed inside the room. This proceeds on the premise of cases in which a demand is required for delay in performance, and once that fact is confirmed, whether delay in performance can be established without a demand changes.
The strongest counterargument targets the scope in which this concurrence is permitted. If the freedom of the parties to assert multiple remedies together is narrowed, protection in situations of uncertainty is weakened. The loss is that only if a claim for restitution and a claim for damages can be set up together can the plaintiff, even after the contract has ended, avoid missing the losses that remain, and prepare a defense in a state where it is unclear which remedies survive. On top of this, pursuing multiple claims in parallel gives rise to the risk of double recovery. The same detriment may be recorded on both the restitution and the damages side and filled twice. Yet this counterargument cannot erase the concurrence itself. The scope of the answer, however, is fixed. The risk of duplication that the counterargument points out is addressed by separately specifying the requirements and amount of damages, not eliminated by folding away freedom of claim in advance. This disadvantage remains as it is.
Looking again at the present scene in light of the conditions set out earlier in this section, plaintiff A seeks to end the contract and recover what has already been paid, while also demanding damages arising from delay in performance. The key here is whether the declaration of intention to rescind, the object of restitution, and the heads of damage are each placed in the record as such. Article 551 provides that the fact of rescission does not bar a claim for damages; accordingly, the mere fact that A has rescinded does not make the damages side disappear. At the same time, Article 390 asks the requirements of damages for delay in performance, so the heads of damage and the question of whether there was non-performance must be separately confirmed. However, this scene does not record whether that fact was present here, whether there was a refusal of performance, or what the concurrent-performance relationship was. Thus, even whether this is a delay in performance requiring a demand is not determined by this scene alone, and that part remains undetermined.
Drawing the boundary between the conclusions that can and cannot be drawn in this section: rescission or termination does not bring down a claim for damages, and the claimability of different remedies for recovery remains together. Yet on the basis of that fact alone one cannot record that the requirements and amount of damages are both recognized, and the object of restitution and the heads of damage must each be specified. This is a limited overturning, directed to the demand requirement of delay in performance. Where that fact is not confirmed and the question of a demand cannot be settled, that judgment too remains undetermined.
5.6The Strongest Counterargument and the Answer
If one has narrowed the object of recovery by writing together the parties' duty of restitution and the protection of third-party rights, then, in the scene where plaintiff A seeks to end the contract and recover what has already been paid while also demanding damages arising from delay in performance, the question of this section remains: pursuing multiple claims in parallel gives rise to the risk of double recovery. What must now be decided is whether, in the state of concurrence of remedies—that is, where the claimability of different remedies for recovery remains together—it can be written that the requirements and amount of damages are both recognized on the basis of the fact of rescission alone.
The source texts corresponding to this question are Civil Act Article 551 and Civil Act Article 390. Civil Act Article 551 declares, "Termination or rescission of a contract does not affect a claim for damages" (Civil Act Article 551). Here the subject is the party who terminated or rescinded the contract, the act is the termination or rescission of the contract, and the condition is that such termination or rescission does not affect a claim for damages. It provides, "Where the debtor fails to perform an obligation in accordance with its contents, the creditor may claim damages: Provided, That this shall not apply where the debtor has become unable to perform without the debtor's intent or negligence" (Civil Act Article 390). The subjects set by this wording are the debtor and the creditor, the act is non-performance of the performance in accordance with the contents of the obligation, and the condition is the exception for impossibility of performance without the debtor's intent or negligence.
The wording of Civil Act Article 551 supports the judgment, in this direction, that rescission does not wipe out a claim for damages. By contrast, the wording of Civil Act Article 390 shows that, for damages to be recognized, non-performance and a cause attributable to the debtor must be separately satisfied. The reason these two stages of judgment must be distinguished is that the former deals with the existence or non-existence of the claim—that is, whether the remedy for recovery survives—whereas the latter deals with the requirements and scope of that surviving claim. This section's conclusion, that on the fact of rescission alone one cannot write that the requirements and amount of damages are both recognized, follows precisely from this distinction. Rescission does not bar a claim for damages, but damages must separately satisfy the requirements prescribed by Article 390.
The strongest counterargument targets the point that narrowing the parties' freedom to assert multiple remedies together weakens protection in situations of uncertainty. Where plaintiff A, as here, seeks together the recovery of what has already been paid upon ending the contract and compensation for the loss arising from delay in performance, the substance of this counterargument is that restricting a party to one side or the other reduces the chances of recovery and leaves a party who has already paid the price exposed to the uncertainty that remains. Yet even so, one cannot write that the requirements and amount of damages are both recognized on the fact of rescission alone. For while the weakening of protection that the counterargument fears falls to the side of widening the concurrence of claims, the recognition of the requirements and amount of damages presupposes the separate judgment that Civil Act Article 390 requires.
The facts confirmed in the synthetic scene are only that plaintiff A seeks to end the contract and recover what has already been paid, while also demanding damages arising from delay in performance. Contrasting this fact with the condition of Civil Act Article 551—namely, that rescission does not affect a claim for damages—there is room to regard plaintiff A's claim for damages itself as surviving on account of the rescission. However, the conditions of Civil Act Article 390, namely non-performance and a cause attributable to the debtor, cannot be adjudicated as satisfied on the basis of this scene alone. Where the concurrent-performance relationship or the refusal of performance, which is an exception to the demand, is not confirmed, satisfaction of the requirements for damages remains undetermined. The heads and amount of the loss arising from delay in performance are likewise undetermined, since they are not made concrete in the scene.
The conclusion that one cannot write that the requirements and amount of damages are both recognized on the fact of rescission alone does not mean that the claim for damages is barred on account of the rescission, nor conversely that damages are immediately fixed by the rescission alone. This boundary is maintained only when the judgment that the concurrence of claims is open and the judgment that the requirements and scope of the open claim are separately examined are set up together.
5.7The Link to the Application and the Dispositive Part
Here is the reason why the remedies for recovery split into two in a single transaction. Here, a remedy for recovery means the channel through which the benefit one seeks to claim is returned. This question asks whether what is recovered by restitution and what is recovered as damages push each other aside. What is to be decided now is not the handling of what has already been given and received, but whether the two claims stand side by side.
As to the relationship between rescission and damages, Civil Act Article 551 writes as follows: "Termination or rescission of a contract does not affect a claim for damages." Here, termination means ending the contract prospectively, and rescission means ending the contract by turning back effects that have already arisen. The subject spoken of by this wording is the party seeking to end the contract, the act is termination or rescission, and the condition is the fact that the contract has ended. The content of the wording is that this fact does not affect a claim for damages. It does not address the issues of other provisions.
Connecting this wording with the conclusion of this section maintains together the rule that termination or rescission does not affect a claim for damages and the requirements of damages themselves. Here lies the reason why the two stages of judgment discussed above must be distinguished. Whether a claim survives and whether that claim fits are different questions. Civil Act Article 390 provides that where the debtor fails to perform an obligation in accordance with its contents, the creditor may claim damages, while setting an exception that this is not so where the debtor has become unable to perform without the debtor's intent or negligence. Accordingly, damages are established only after the fact of non-performance and the attributable cause have been separately examined. Rescission does not substitute for that examination.
The counterargument that pursuing multiple claims in parallel gives rise to the risk of double recovery targets a substantive loss. If the same detriment is recorded twice, in the names of restitution and damages, and recovered twice, the other party bears more than what was actually lost. It also counts in favor of this counterargument that, in situations of uncertainty, preventing a party from asserting remedies together weakens protection. Yet one cannot write that the requirements and amount of damages are both recognized on the fact of rescission alone. So long as the requirements and object of each claim are separately specified, there is no reason to bar parallel assertion itself. The risk of duplication that the counterargument points out must be filtered out in the process of specifying the requirements and amount.
In the synthetic scene, the fact bearing on the present question is that plaintiff A seeks to end the contract and recover what has already been paid, while also demanding damages arising from delay in performance. This demand divides into two items: restitution and damages. The record of what the object of restitution is, and what the heads of damage are, is the material needed for judgment. However, since the scene fixes neither amount nor deadline, the amount cannot be settled here. The cause of the delay in performance and the attributable cause also remain unconfirmed. This passage is an examination that changes the conditions, not an additional fact.
The conclusion permitted in this section is to maintain together the rule that termination or rescission does not affect a claim for damages and the requirements of damages themselves. That is, one cannot assert categorically that both claims are established on the single fact that the contract has been ended, nor can one hold that either of the two claims disappears. Whether the object to be recovered by restitution and the loss to be recovered as damages are specified without duplication, and whether the fact of non-performance and the attributable cause are satisfied, must be separately confirmed. If that confirmation has not been completed, the amount and the establishment remain undetermined.
5.8The Scope This Section Undertakes
Rescission itself, having passed through the limitations of the duty of restitution and the protection of third-party rights, determines the object of restitution. In effect, two remedies for recovery—what is recovered upon closing out the transaction and delay damages sought separately—are placed together in a single case. In this case, how does the scope of recovery change between maintaining the contract and ending it?
The subject of this wording is the creditor who has ended the contract, the act is termination or rescission, and the condition is the fact that such termination or rescission occurred. The effect concerns the existence or non-existence of claimability, not the recognition of damages themselves. The subject of this wording is the debtor and the creditor, the act is non-performance, and the condition is whether the proviso applies, namely that the cause of the impossibility of performance must not lie in an act attributable to the debtor.
These two wordings set different stages. The preceding provision is a rule of relationship—that the closing out of the contract does not stand in the way of a claim for damages—while the following provision is a rule of construction—that non-performance gives rise to liability in damages. The author maintains both. Here lies the reason why one cannot write that the requirements and amount of damages are both recognized on the fact of rescission alone. The preceding provision, as a rule of relationship, merely does not close the path of the claim, and the examination of non-performance and cause attributable set by the following provision must be separately passed. In this section, the concurrence of remedies is defined as a state in which the claimability of different remedies for recovery remains together. The claim for restitution and the claim for damages are not a repetition of the same recovery differing only in name; each aims at a different object.
The strongest counterargument targets the point that pursuing multiple claims in parallel gives rise to the risk of double recovery. If, on a single delay, one receives both the return of the money already paid and compensation for the loss of delay, the result may be that damages add once more the time value of the funds already accounted for in the restitution. The criticism also follows that narrowing the parties' freedom to assert multiple remedies together weakens protection in situations of uncertainty. The author's answer, however, is clear. Without erasing the disadvantage of double recovery that the counterargument points out, it is resolved by leaving the rule of relationship as it is and separately specifying the object of restitution and the heads of damage, so as to divide them without duplication.
The facts that can be confirmed in this scene are only plaintiff A's closing out of the contract, the demand for return of what has already been paid, and the demand for damages arising from delay in performance. Contrasting these three with the conditions above, the specific items of the object of restitution and the heads of damage remain as what must be recorded. Moreover, if this is delay in performance, whether the requirements of a demand have been satisfied, whether the defense of concurrent performance unconditionally blocks a demand for performance, and whether there was a declaration of intention to refuse performance, which is an exception to the demand, are all left undecided by the scene. Even if these conditions of judgment change, the rule of relationship in the preceding provision does not shake, but the examination of the requirements for damages may change.
Accordingly, the conclusion this section permits is that the choice to rescind or terminate the contract does not close the path of the claim for damages, but that, instead, the restitution performance and the damages loss must be specified without duplication. What is not permitted is the attitude of writing that the requirements and amount of damages are both recognized on the fact of rescission alone.
5.9Application of the Text of the Provisions and the Holdings of Precedents
The starting point of this question is that even after a contract has ended, losses arising in the course of that transaction may remain. In this scene, the plaintiff asserts more than one means of recovery together. The issue is whether the party who ended the contract may also demand the losses suffered because of that contract, and on what language such a demand rests. The question lies specifically in how far the language of the relevant source text determines the combination and scope of contractual remedies.
The first provision corresponding to this question is Article 551 of the Civil Act. The provision states: "The termination or rescission of a contract does not affect the claim for damages" (Civil Act Article 551). The subject to which this language refers is the party who terminated or rescinded the contract, the act is the termination or rescission of the contract, and the condition is that such termination or rescission has taken place. The effect declared by the language is only one: that the claim for damages is not affected by that termination or rescission. This provision does not determine other issues.
The second provision, Article 390 of the Civil Act, sets out the conditions for damages themselves to arise. The provision states that "where the debtor fails to perform in accordance with the contents of the obligation, the creditor may claim damages" (Civil Act Article 390), while adding the proviso that "this shall not apply where performance has become impossible without intent or negligence on the part of the debtor" (Civil Act Article 390). The language of Article 551 and the language of Article 390 therefore address separate stages. The former determines only that the fact of rescission does not extinguish the claim for damages, while the latter separately requires the elements of damages themselves: non-performance of the obligation and the presence or absence of grounds for imputation. Only by applying both provisions together can one speak of the concurrence of remedies, that is, the possibility of claiming different means of recovery remaining available together. Substituting the fact of rescission for proof of the requirements for damages exceeds the scope of that language.
The strongest counterargument left by this distinction is the risk of double recovery. Pursuing several claims in parallel creates room to be compensated twice for the same detriment, and the counterargument points out that this uncertainty burdens the other party and the legal order. There is also an adverse point on the other side. Even so, within the scope of the relevant source text, the answer given above stands. Rescission merely does not extinguish the claim for damages, while the requirements demanded by Article 390 and the specification of the object of restitution and the items of loss remain separate. The adverse point of double recovery identified by the counterargument is likewise not erased; its resolution is left to the distinction between requirements and scope.
The facts confirmed in the synthetic scene are that the plaintiff ends the contract, seeks the return of what has already been paid, and also demands the losses arising from delay in performance. Contrasting these facts with the conditions above, the pattern is one in which the declaration of rescission and the object of restitution are asserted together and the items of loss are also specified together. However, the scene does not determine the contents of the contractual performance, whether performance was tendered, whether a demand was made, or the relationship of concurrent performance. Thus, whether the respective requirements for performance, rescission, and damages have been satisfied, and whether the restitution performance and the compensable loss have been specified without overlap, cannot be determined from the scene alone. Where delay in performance requiring a demand lacks the demand and non-performance requirements, or where an unconditional demand to perform cannot be sustained because of a defense of concurrent performance, effectiveness is blocked. Nor is it confirmed whether there was a refusal to perform, which is an exception to the demand requirement, and so this remains undetermined.
The conclusion permitted by this section is that the fact that the possibility of claiming rescission and damages may remain available together, and the fact that the requirements of Article 390 must be separately satisfied for damages to arise, are both maintained. What is not permitted is to write that the requirements and the amount of damages are both established on the sole basis of the fact of rescission, or to expand the conclusion by drawing in the reasons of a judgment or other items. Items for which the material is lacking remain undetermined and are not converted immediately into an inability to obtain relief. Accordingly, the sentence recognizing concurrence and the sentence examining the requirements of damages separately must be read as one bundle.
5.10Fine Distinctions Within the Stage
The rule that rescission or termination does not affect a claim for damages and the requirements for damages themselves are maintained together. Within this flow, the question lies in identifying what must be divided anew and adjudicated within the combination and scope of contractual remedies. In this structure of concurrence, the availability of the means of recovery passes through different determinations, and this section deals only with those detailed distinctions.
Among the source texts relevant to this section, Article 551 of the Civil Act provides that "the termination or rescission of a contract does not affect the claim for damages." The subject determined by this language is the party who terminated or rescinded, the act is a declaration of intention ending the contract, and the condition is the fact that such a declaration was made. Its effect is limited to the point that the right to claim damages is not affected.
Placing these two provisions side by side shows that the fact of rescission and the requirements for damages are situated on different axes of determination. Article 551 of the Civil Act determines only the relationship that rescission does not extinguish a claim for damages, and does not substitute for confirming the satisfaction of the requirements for damages. Article 390 of the Civil Act provides for damages arising from non-performance of the obligation in accordance with its contents, and treats as an exception the case where performance has become impossible without intent or negligence. Therefore, the cases in which it operates, the cases in which it is blocked, and the cases that remain undetermined are limited to the stated conditions. The cases in which it operates are those in which the respective requirements for performance, rescission, and damages are satisfied and the restitution performance and the compensable loss are specified without overlap, with the distinction between the object of restitution and the items of loss serving as the premise.
The counterargument that pursuing several claims in parallel creates the risk of double recovery targets the loss of over-recovery from overlapping payments and the inconvenience of settlement. However, the concurrence of the availability of claims and the duplication of the recognized amount are different matters, and the author defines concurrence as the possibility of claiming different means of recovery remaining available together. On this view, it cannot be written that the requirements and the amount of damages are both established on the sole basis of the fact of rescission. Without erasing the risk of double recovery identified by the counterargument, the author maintains the limitation that screens for that risk in the specification of the restitution performance and the compensable loss, confined to the stated conditions.
Contrasted with the preceding conditions, namely the respective requirements for performance, rescission, and damages, what remains to be confirmed is which determination the records of the contractual performance, the tender of performance, the demand, the declaration of rescission, the object of restitution, and the items of loss fall under. In the present scene, where that fact is not confirmed, it cannot be determined.
What this section permits is the combination of the determination that the availability of rescission or termination and damages may remain available together and the limitation that such concurrence does not substitute for the separate satisfaction of the requirements for damages. What is not permitted is the conclusion that the requirements and the amount of damages are both established on the sole basis of the fact of rescission. Because the synthetic scene alone cannot determine the outcome of a real case or the results of recovery, that part remains undetermined.
5.11Synthesis of Effectiveness, Blockage, and Undetermination
Premising the object of recovery narrowed in the preceding stage, this analytical stage asks how the combination and scope of contractual remedies are divided in the scene where plaintiff A ends the contract, seeks the return of what has already been paid, and also demands the losses arising from delay in performance. A state in which the availability of several means of recovery remains together is called the concurrence of remedies. The question is to determine by what criteria to divide, respectively, the conditions under which this concurrence opens, the conditions under which it is blocked, and the conditions that remain undetermined because confirmation is incomplete.
The provision corresponding to this question is, first, Article 551 of the Civil Act, which provides that "the termination or rescission of a contract does not affect the claim for damages." The subject to which this language refers is the party who terminated or rescinded the contract, the act is the termination or rescission ending the contract, and the condition is where a claim for damages lies together within that contractual relationship. The language declares only that it does not affect the claim for damages. Accordingly, it cannot be read to mean that, on the sole basis of the fact of rescission or termination, the requirements and the amount of damages are recognized together.
Article 390 of the Civil Act on the same question provides that "where the debtor fails to perform in accordance with the contents of the obligation, the creditor may claim damages," while adding the exception that "this shall not apply where performance has become impossible without intent or negligence on the part of the debtor." This provision shows that, even after rescission, the requirements for damages themselves must be examined separately. Those requirements are bound to the criterion of a case where the debtor fails to perform in accordance with the contents of the obligation, and cases where performance has become impossible without intent or negligence are excluded. Thus, the fact of rescission and the requirements for damages are at different stages. The concurrence of remedies opens where the respective requirements for performance, rescission, and damages are satisfied and the restitution performance and the compensable loss are specified without overlap.
The counterargument that pursuing several claims in parallel creates the risk of double recovery targets the loss and inconvenience in that a state in which the means of recovery remain alive together ultimately opens the way to receiving the same detriment back twice. Yet, without erasing the adverse part of the counterargument, the answer that it cannot be written that the requirements and the amount of damages are both recognized on the sole basis of the fact of rescission holds. Rescission merely does not affect the claim for damages; it does not substitute for proving the requirements for damages. Even where concurrence opens, the restitution performance and the compensable loss must be specified without overlap, and where that specification is lacking, the scope of concurrence does not open. Even if the freedom to pursue claims in parallel is construed broadly, it operates only within the bounds of requirements and specification.
In the synthetic scene, the facts relevant to this question are that plaintiff A ends the contract, seeks the return of what has already been paid, and also demands the losses arising from delay in performance. Where delay in performance requiring a demand lacks the demand and non-performance requirements, or where an unconditional demand to perform cannot be sustained because of a defense of concurrent performance, concurrence is blocked. Where the relationship of concurrent performance or a refusal to perform, as an exception to the demand requirement, is not confirmed, the matter remains undetermined.
The conclusion permitted by this section is that, within the range in which the respective requirements for performance, rescission, and damages are satisfied and the restitution performance and the compensable loss are specified without overlap, the possibility of a claim for damages and its requirements are maintained together even if rescission has taken place. Conversely, what is not permitted is to write that the requirements and the amount of damages are both established on the sole basis of the fact of rescission, and to sustain an unconditional demand to perform in a delay in performance that lacks the demand or non-performance requirements. Matters within the range where the relationship of concurrent performance or a refusal to perform, as an exception to the demand requirement, is not confirmed remain undetermined, and unconfirmed material is not converted into confirmed fact.
5.12Conclusion Carried Over to the Next Section
In a situation where a demand for the return of what has already been paid because the contract was not performed and a demand for the losses arising from delay are raised together, the point that the means of recovery is not singular raises a remaining problem. It is precisely here that the question opens: does rescinding the contract also mean giving up damages? This question premises the concurrence of remedies, meaning the state in which the availability of the means of recovery remains together, and goes as far as deciding whether that concurrence automatically carries with it the establishment of damages.
Article 551 of the Civil Act provides in its language that "the termination or rescission of a contract does not affect the claim for damages" (Civil Act Article 551). The subject spoken of by this language is the party who terminated or rescinded the contract, the act is such a declaration of intention of rescission or termination, and the condition is that the act itself does not affect the right to claim damages. Put simply, rescission or termination does not erase the possibility of claiming losses that have already arisen; conversely, it does not declare that a claim is automatically established.
This language and the conclusion of this section connect as follows. Article 390 of the Civil Act provides that "where the debtor fails to perform in accordance with the contents of the obligation, the creditor may claim damages," while adding the proviso that "this shall not apply where performance has become impossible without intent or negligence on the part of the debtor" (Civil Act Article 390). Accordingly, the two stages of determination must be kept apart. One is whether the effect of rescission or termination extinguishes the claim; the other is whether that claim itself actually satisfies the requirements and exceptions for non-performance under Article 390 of the Civil Act. The fact that the earlier stage is open does not substitute for the determination at the later stage.
What the counterargument that pursuing several claims in parallel creates the risk of double recovery most strongly targets is the point that the performance to be returned and the loss to be recovered as damages may recover the same detriment twice. Attached to this counterargument is also the concern that narrowing the parties' freedom to assert several means together weakens protection in uncertain situations. However, within the scope of the answer given above, the conclusion stands. That said, this does not erase the adverse part of the counterargument. So long as claims remain together without specifying which losses already fall within the scope of the restitution performance and which items remain anew, the possibility of double recovery remains as it is.
In this scene, the facts bearing on this question are narrow. The scene shows a situation in which a declaration of rescission and the object of restitution are presented together, but it does not contain records reaching the tender of performance, whether a demand was made, or the specification of the items of loss. The record items used for adjudication are the contractual performance, the tender of performance, the demand, the declaration of rescission, the object of restitution, and the items of loss. It cannot be asserted from the scene alone that these items are filled in, and if the fact of an advance expression of an intention not to perform is confirmed, the need for a demand must be judged anew. Accordingly, the demand and non-performance requirements, the relationship of concurrent performance, and whether the exception to the demand requirement is satisfied remain undetermined.
The conclusion permitted by this section maintains side by side the rule that rescission or termination does not extinguish a claim for damages and the requirements for damages under Article 390 of the Civil Act, and does not proceed to the effect that the requirements and the amount are both recognized on the sole basis of the fact of rescission. What is not permitted is not only the view that damages are established merely from the existence of rescission, but also the view that, simply because the means of recovery remain together, the same detriment may be recorded twice. May the same detriment be recorded repeatedly under different names of claim?