If the establishment of a contract is the process by which the parties agree and agree on the terms of the contract, contract performance is the process by which the parties turn the terms they have voluntarily committed to coming true. fulfill the rights and obligations they wish to achieve. When entering into a contract, usually the parties will voluntarily fully implement the terms that they have voluntarily committed. However, in some cases, due to subjective or objective reasons, the obligor fails to properly perform the obligation as committed, causing damage to the obligee in the contractual relationship. And in the transportation of goods by road, not only causes damage to the other party in the contract but also may cause damage to the 3rd party during the transportation and circulation of goods for other reasons [1].

In order to overcome the adverse consequences brought about by the obligor’s breach of contract, the contract law of all countries provides for a measure to help the aggrieved party to overcome the consequences caused by the breach of contract. caused by the contract of the obligor, thereby helping the aggrieved party to protect the legitimate rights and interests due to the breach of the contract. Liability for damages (liability for damages) due to a breach of contract is an important legal measure that plays a role in compensating the aggrieved party (the obligee) for losses resulting from the breach of contract. breach of contract [2].

In legal systems, compensatory liability is a measure to remedy the damage caused to put the aggrieved party in the position that it would have been if the contract had been properly performed, however, therefore, legal systems also have differences in this measure such as compensatory damages, grounds for applying compensation measures, determination of compensation levels, cases where liability is exempted. often damages, etc. But the liability for compensation for damage in a contract of carriage by road does not stop here. Because there are contents about the terms when it is beyond the control of the parties to the contract or for some reason that in the process of transporting goods by road, the carrier causes damage to the owner. In other cases, the issue of liability to compensate for damage needs to be considered and studied from other legal perspectives [3]. Liability for damages in a contract of carriage of goods by road is not a new legal issue in modern legal systems, but it is an issue that has not received adequate attention in the legal system. Vietnam law. For example, what damages can be compensated, the basis for applying compensation measures? In what cases is the breaching party exempt from liability for damages? Or any case that causes damage during the carriage of goods by road exempted from liability or handled how to compensate for such damage? These are issues that have not been completely resolved in Vietnamese law [4].

Therefore, studying the provisions of Vietnamese law in the contract of carriage of goods by road and the responsibility to compensate for damage posed to the subject matter in the contract is extremely urgent. The application of liability to compensate for damage caused by the breach in the contract of carriage of goods by road is necessary both in theory and in practice [5].

Research on contracts and liability for damages in contracts has been mentioned by many researchers. Some of the research projects include the following:

• Master’s thesis of jurisprudence author Dinh Hong Ngan with the topic “Civil liability in the contract” in 2006

• Master’s thesis in jurisprudence by author Tran Thuy Linh with the topic “Compensation for damage caused by goods not conforming to the contract under the provisions of the Vienna Convention 1980-Comparison with Vietnamese law” in 2009

• Master’s thesis of jurisprudence by author Le Thi Yen with the topic “Compensation for damage caused by the breach of civil contract-Some theoretical and practical issues” in 2013, etc

• Scientific articles: Related to this issue can be mentioned a number of scientific articles such as author Ngo Huy Cuong with the article “Civil responsibility - comparison and criticism” published in the Journal of Legislative Research. No. 5 in 2009

• Nguyen Thi Hong Trinh with the article “Discrimination for damages in international trade through Vietnamese commercial law, the CISG Convention and the UNIDROIT Principles” published in the Journal of Legislative Research No. 22 in 2009

• Du Ngoc Bich with the article “Suggestions on the contract penalty clause and the relationship to compensation for damage in the draft Civil Code (amended)” published in the Electronic Journal of Democracy and Law [6]

• About monographs: We can mention a number of monographs that refer to the research problem of the thesis such as the book “Contract Institutions in the Civil Code of Vietnam” by author Nguyen Ngoc Khanh and published by the Government. Judicial publication published in 2007 [7]

• The book: “Measures to handle the nonperformance of contracts in Vietnamese law” by the author Do Van Dai was republished in 2013 by the National Political Publishing House (with corrections and additions)

• The book: “Vietnam Contract Law - Judgment and Commentary” by author Do Van Dai was published by the National Political Publishing House [8]

• The above studies have partly clarified the issues related to the contract and the liability for damages in the contract. The above studies are inherited and used by the author in his research [9]

Theoretical Issues Related to the Topic

The Concept of Liability for Damage in A Contract of Carriage of Goods by Road: The Civil Code 2005, as well as the Civil Code 2015, do not provide a definition of compensation for damage caused by a breach of contract. However, unlike the 2005 Civil Code, in addition to recognizing the causes that may lead to liability for compensation for damage similar to the Civil Code of 2005, the Civil Code of 2015 has added the provision “Liability to compensate for damage due to breach of obligation” in Article 360. With the provision “In case of damage caused by a breach of obligation, the obligor must compensate for all damage, unless otherwise agreed or otherwise provided by law”. Article 360 ​​of the Civil Code of 2015 has recorded an overview of liability to compensate for damage caused by the breach of obligation, including liability for compensation for damage caused by the breach of contract and liability for compensation for non-contractual damage. This is completely reasonable because the contract is the main basis for giving rise to the obligation. In addition, Article 360 ​​of the Civil Code 2015 also specifies the principle of compensation for damage and the grounds for giving rise to liability to compensate for damage. Accordingly, to give rise to a liability to compensate for damage requires three grounds: there is a breach of obligation; there is damage; there is a cause-and-effect relationship between the breach of duty and the damage that occurs.

According to the 2005 Commercial Law, compensation for damage is “the breaching party’s compensation for the damage caused by the breach of contract to the breached party”. Liability to compensate for damage arising from a contract of carriage of goods by road is the responsibility to compensate and compensate for the loss of goods (destroyed, lost, damaged or delayed). between the parties of a contract for the carriage of goods by road to the injured party due to their failure to perform or improper performance of their contractual obligations.

Liability for damage arising from a contract for the carriage of goods by road is one of two basic types of liability for road transport: Liability for loss or damage of luggage or goods; Liability for damage caused to a third person.

From the above observations, the concept of liability to compensate for damage in a contract of carriage of goods by road can be established as a remedy for the consequences of a breach of contract, in order to ensure civil liability. under a contract is performed by compensating for losses resulting from a breach of contract caused by the breaching party to the aggrieved party.

Features of Liability for Damage in A Contract of Carriage of Goods by Road

From the concept analyzed above, the liability to compensate for damage in a contract of carriage of goods by road has the following characteristics:

First, the liability for compensation in the contract of carriage of goods by road is a type of civil liability: Compensation liability in a contract for carriage of goods by road is a contractual civil liability arising on the basis of a prior contract between the parties. The carrier causing damage to another person must be responsible for compensating the damaged person for the material and spiritual losses suffered by the damaged person. The compensation shall be made in accordance with the provisions of civil law. Therefore, indemnification in a contract of carriage of goods by road is considered a type of civil liability.

Second, the establishment incurs liability to compensate for damage in the contract of carriage of goods by road: The liability for compensation in a contract of carriage of goods by road arises on the basis prescribed by law. The person who causes damage, if satisfying the signs on the grounds for arising liability to compensate for damage according to the provisions of law, must pay compensation. Accordingly, Article 541 of the Civil Code 2015 stipulates the grounds for arising liability to compensate for damage in the property transportation contract as follows: “The carrier must compensate the transport hirer for damage if the property is left behind. property is lost or damaged, except for the case specified in Clause 3, Article 536 of this Code. The shipping hirer must compensate the carrier and the third party for damage caused by dangerous and toxic properties without packing and safety measures during transportation. . In case of force majeure resulting in the loss, damage or destruction of the transported property during the transportation, the carrier shall not be responsible for compensation for damage, unless otherwise agreed upon or provided for by law and other rules”.

Third, about the level of compensation in the contract of carriage of goods by road: The level of compensation is aimed at compensating the injured person for the material and mental losses that he or she has to suffer due to the carrier’s loss or damage to the goods. Therefore, in order to ensure the legitimate rights and interests of the damage sufferer, the law stipulates in principle that the person causing damage (the person responsible for compensation for damage) must compensate for the entire damage actually occurred. quickly and in a timely manner. Damage can only be reduced in some special cases where the person causing the damage was not at fault, was at fault and the damage that occurred was too great for their immediate and long-term economic viability.

The Legal Status of Liability for Damage in Contracts for Carriage of Goods by Road

Grounds for Arising Liability for Damage in A Contract of Carriage of Goods by Road: Before the 2015 Civil Code took effect, it can be said that Vietnam’s contract law represents the approach to liability for damages caused by the breach of contract in both legal systems. That is, while the 2005 Civil Code mainly considers liability for damages as fault-based liability, the 2005 Commercial Law considers this liability a strict liability. The difference in the approach of the 2005 Civil Code and the 2005 Commercial Law leads to a difference in the application of the measure of compensation for damage caused by a breach of contract.

That is, to apply the measure of compensation for breach of contract under the 2005 Civil Code, the aggrieved party must prove that the party causing the damage is at fault, while under the 2005 Commercial Law, the aggrieved party must prove that it is at fault. The damage does not need to prove that the party causing the damage is at fault because the breaching party is presumed to be at fault when it fails to properly perform its contractual obligations. Based on the provisions of the 2005 Commercial Law and the 2005 Civil Code, it can be seen that the 2005 Commercial Law provides stronger protection for the injured party due to a breach of contract than the 2005 Civil Code. Vietnam’s private legal system and in order to stronger protect the contract breached party, when conducting a review and assessment of the level of consistency between the Civil Code and specialized laws during the construction of the Civil Code in 2015, the employer Vietnamese law has recognized the positive points of the 2005 Commercial Law compared to the 2005 Civil Code and codified these points into the 2015 Civil Code.

One of the positive points of the Commercial Law 2005 codified into the Civil Code in 2015 is the provision on the grounds for applying the measure of compensation for damage. Accordingly, in order to apply the measure of compensation for damage caused by a breach of contract, the Civil Code 2015 only requires three grounds: There is a breach of contract, damage occurs and there is a cause-and-effect relationship between breach of contract and damage occurred.

Thus, it can be said that in most legal systems in the world, including Vietnam’s contract law system, in principle the liability to compensate for damage caused by a breach of contract is determined as strict liability. , that is, the liability to compensate for damage caused by a breach of contract is determined on three grounds: There is a breach of contract, there is damage and there is a causal relationship between the breach of contract. and damage occurs. These are cases where the legal science of the world merges fault with breach of contract or non-performance, which means that the breaching party is presumed to be at fault. In addition to strict liability, legal systems also recognize a fault-based liability. These are the cases of legal science in the world, besides the requirement of violation, it also requires proving that the breaching party is at fault (fault-based liability). Derived from the similarities and differences between the legal systems on contracts mentioned, the thesis will analyze in turn the bases for applying the compensation measure in general and in the contract of carriage of goods transportation by road in particular.

Principles of Compensation for The Contract of Carriage of Goods by Road

Stemming from the purpose of compensation is to remedy the consequences caused by the non-performance of the contract, the Vietnamese legal system also recognizes the principle of compensation for damage due to breach of obligations in general and Compensation for damage caused by a breach of contract, in particular, is compensation for all damages that the aggrieved party has to bear. This principle is recognized in Article 360 ​​of the 2015 Civil Code: “In case of damage caused by a breach of an obligation, the obligor must compensate for all damage, unless otherwise agreed or The law provides otherwise”.

In addition to pointing out that the principle of compensation for damage in the Vietnamese legal system is to compensate for the entire Civil Code of 2015, it also clearly states that the damage to be compensated is not only material damage but also physical damage. about spirit. Unlike the 2015 Civil Code, the 2005 Commercial Law does not provide a principle of compensation, but with the provisions of Clause 2, Article 302: “The compensation value includes the actual, direct loss value. suffered by the aggrieved party as a result of the breaching party and the direct benefits that the aggrieved party would have enjoyed if the breach had not occurred”.

Thus, although the Civil Code of 2015 and the Commercial Law of 2005, there are different in recording the principles of compensation for damage as well as the criteria for determining the level of compensation, both are important legal documents According to Vietnamese law, the principle of compensation for damage is to compensate for all damage to goods.

All other cases prescribed by law are exceptional cases, which must be strictly applied in accordance with the provisions of the law and must not be interpreted by the method of an application similar to the law in order to expand the scope of application. Article 585, Clause 2 stipulates that the person responsible for compensation for damage may be entitled to a reduction in compensation if there is no fault or unintentional fault. However, such provision is formulated as an exception within the framework of the regime of non-contractual liability and cannot be extended to civil liability for breach of contractual obligations.

Proposal to Improve the Law On Liability to Compensate for Damage in The Contract of Carriage of Goods by Road

From the legal regulations and the actual situation, the writer proposes some recommendations to improve the legal provisions on liability for damage compensation in the contract of carriage of goods by road as follows:

First, instead of stipulating the liability to compensate for damage caused by a breach of contract, it is mainly the responsibility based on fault factors like the Civil Code 2005, Commercial Law 2015 and especially the Civil Code 2015 - the original law of Vietnam. Private law has recognized that liability for damages for breach of contract is primarily a strict liability. Accordingly, the Civil Code 2015 recognizes the principle of presumption of fault in the liability to compensate for damage caused by a breach of contract in particular and the liability to compensate for damage in general, specifically in the event that the obligor fails to perform in accordance with the committed obligations, it is presumed to be at fault and must be responsible for compensating for damage. The advantage of this fundamental change in the 2015 Civil Code is that in order to apply the measure of compensation for breach of contract under the 2015 Civil Code, the aggrieved party does not have to prove that the party causing the damage is at fault. This provision shows that the 2015 Civil Code protects the damaged party more strongly than the 2005 Civil Code as well as reduces costs and saves time spent proving the fault of the violating party. contract.

Second, it is recommended to amend Article 361 of the 2015 Civil Code. The provisions of Vietnam’s contract law on requirements for compensated damage are not completely consistent, that is, Clause 2, Article 302 of the 2005 Commercial Law. requires compensatory damage to be “actual and direct” damage, but Clause 2, Article 361 of the Civil Code 2015 only requires damage to be compensated as “actually identifiable physical loss”. Although the 2015 Civil Code is more accurate than Article 302 of the 2005 Commercial Law when it does not require that the damage be “direct” damage, the provisions of Clause 2, Article 361 of the 2015 Civil Code seem to contradict the content of the Civil Code. itself by the “actually identifiable physical loss” which is interpreted by the Civil Code 2015 as “loss of property, reasonable costs to prevent, limit, remedy the damage, actual lost income loss or impairment” includes not only direct damage but also indirect damage. In particular, the compensation for damage is the lost profit which is clearly shown in the provisions of Clause 2, Article 419 of the Civil Code 2015.

Third, with the provisions of Clause 2, Article 302 of the 2005 Commercial Law: “The value of compensation for damage includes the value of the actual and direct loss suffered by the aggrieved party caused by the infringing party and the amount of damage caused by the violating party. direct benefits that the aggrieved party would have been entitled to if there had been no violation”, the Commercial Law pointed out that the types of damages to be compensated include actual loss and lost profit. However, due to the use of the adjective “direct” after the nouns “loss” and “gain”, this provision of the Commercial Law 2005 seems to have eliminated compensable damages as indirect damage. next. In order to ensure consistency in Vietnamese contract law in general and consistency with the 2015 Civil Code in particular, Clause 2, Article 302 of the 2005 Commercial Law should be amended as follows: “2. The value of compensation for damage includes the actual loss value that the aggrieved party has suffered due to the violating party and the benefits that the aggrieved party would have enjoyed if there were no violations.

Fourth, it is recommended to use the term “compensation for damage predetermined in the contract” instead of the term “penalty for violation” of the Civil Code in 2015, there is a consensus on the amount of compensation for the damage that is predetermined in the contract. contract and penalty for breach of contract. In addition, Article 418 of the Civil Code 2015 on the one hand shows deterrence and punishment in order to prevent contract violations and thereby ensure the correct performance of the contract, but on the other hand, this clause also plays an important role. compensation to remedy the damage suffered by the aggrieved party.

Fifth, it is recommended to amend Clause 2, Article 360, Clause 3, Article 405, Clause 3, Article 406 of the Civil Code in 2015 stemming from the principle of free will, in the Vietnamese legal system, the agreement on the exemption from liability for compensation is granted. implicit in Article 13, Article 360 ​​of the 2015 Civil Code with the provisions: “Unless otherwise agreed” and is more clearly stated in Clause 3, Article 405, Clause 3, Article 406 of the 2015 Civil Code. The liability to compensate for damage is also recognized at Point a, Clause 1, Article 294 of the Commercial Law 2005. Clause 2, Article 360 ​​of this Code, this provision is invalid.”

Sixth, it is recommended to supplement regulations on the time of damage calculation Since the time of damage calculation has not been specified in principle in the 2005 Civil Code and the 2005 Commercial Law - important acts of the private law, time The point of damage determination is a controversial as well as confusing issue in the adjudication work. There is a scientist who raises the issue of considering the time of damage determination as the time of first-instance trial and the time of determining damage as the time of causing damage.

A contract for carriage of goods by road is a contract entered into between a carrier and a carrier, under which the carrier collects freight paid by the carrier and uses road vehicles to transport goods. transfer. Characteristics of a contract for the carriage of goods by road is a bilateral, compensatory contract that may be a contract for the benefit of a third party; the target audience of the parties to the contract of carriage of goods by road.

Liability for damage in a contract of carriage of goods by road is a remedy for the consequences of a breach of contract, in order to ensure that civil liability under the contract is performed by compensating loss is the consequence of a breach of contract caused by the breaching party to the aggrieved party. The provisions of the law on liability to compensate for damage in the contract of carriage of goods by road are the basis for arising liability; compensation principles; compensation level; time of compensation and exemption from compensation liability.

1. Dai, D.V. Law on Compensation for Non-Contract Damage in Vietnam: Judgments and Judgment Comments. Hanoi: National Politics, 2010.

2. National Assembly of the Socialist Republic of Vietnam. Civil Code 2015 (Law No. 33/2005/QH11). June 2005.

3. National Assembly of the Socialist Republic of Vietnam. Commercial Law (Law No. 36/2005/QH11). June 2005.

4. National Assembly of the Socialist Republic of Vietnam. Law on Intellectual Property (Law No. 50/2005/QH11). November 2005.

5. National Assembly of the Socialist Republic of Vietnam. Law on Road Traffic 2008 (Law No. 23/2008/QH12). November 2008.

6. National Assembly of the Socialist Republic of Vietnam. Constitution 2013. November 2013.

7. National Assembly of the Socialist Republic of Vietnam. Civil Code 2015 (Law No. 91/2015/QH13). November 2015.

8. National Assembly of the Socialist Republic of Vietnam. Labor Code 2019 (No. 45/2019/QH14). November 2019.

9. National Assembly of the Socialist Republic of Vietnam. Commercial Law (No. 17/VBHN-VPQH). July 2019.

If the establishment of a contract is the process by which the parties agree and agree on the terms of the contract, contract performance is the process by which the parties turn the terms they have voluntarily committed to coming true. fulfill the rights and obligations they wish to achieve. When entering into a contract, usually the parties will voluntarily fully implement the terms that they have voluntarily committed. However, in some cases, due to subjective or objective reasons, the obligor fails to properly perform the obligation as committed, causing damage to the obligee in the contractual relationship. And in the transportation of goods by road, not only causes damage to the other party in the contract but also may cause damage to the 3rd party during the transportation and circulation of goods for other reasons [1].

In order to overcome the adverse consequences brought about by the obligor’s breach of contract, the contract law of all countries provides for a measure to help the aggrieved party to overcome the consequences caused by the breach of contract. caused by the contract of the obligor, thereby helping the aggrieved party to protect the legitimate rights and interests due to the breach of the contract. Liability for damages (liability for damages) due to a breach of contract is an important legal measure that plays a role in compensating the aggrieved party (the obligee) for losses resulting from the breach of contract. breach of contract [2].

In legal systems, compensatory liability is a measure to remedy the damage caused to put the aggrieved party in the position that it would have been if the contract had been properly performed, however, therefore, legal systems also have differences in this measure such as compensatory damages, grounds for applying compensation measures, determination of compensation levels, cases where liability is exempted. often damages, etc. But the liability for compensation for damage in a contract of carriage by road does not stop here. Because there are contents about the terms when it is beyond the control of the parties to the contract or for some reason that in the process of transporting goods by road, the carrier causes damage to the owner. In other cases, the issue of liability to compensate for damage needs to be considered and studied from other legal perspectives [3]. Liability for damages in a contract of carriage of goods by road is not a new legal issue in modern legal systems, but it is an issue that has not received adequate attention in the legal system. Vietnam law. For example, what damages can be compensated, the basis for applying compensation measures? In what cases is the breaching party exempt from liability for damages? Or any case that causes damage during the carriage of goods by road exempted from liability or handled how to compensate for such damage? These are issues that have not been completely resolved in Vietnamese law [4].

Therefore, studying the provisions of Vietnamese law in the contract of carriage of goods by road and the responsibility to compensate for damage posed to the subject matter in the contract is extremely urgent. The application of liability to compensate for damage caused by the breach in the contract of carriage of goods by road is necessary both in theory and in practice [5].

Research on contracts and liability for damages in contracts has been mentioned by many researchers. Some of the research projects include the following:

• Master’s thesis of jurisprudence author Dinh Hong Ngan with the topic “Civil liability in the contract” in 2006

• Master’s thesis in jurisprudence by author Tran Thuy Linh with the topic “Compensation for damage caused by goods not conforming to the contract under the provisions of the Vienna Convention 1980-Comparison with Vietnamese law” in 2009

• Master’s thesis of jurisprudence by author Le Thi Yen with the topic “Compensation for damage caused by the breach of civil contract-Some theoretical and practical issues” in 2013, etc

• Scientific articles: Related to this issue can be mentioned a number of scientific articles such as author Ngo Huy Cuong with the article “Civil responsibility - comparison and criticism” published in the Journal of Legislative Research. No. 5 in 2009

• Nguyen Thi Hong Trinh with the article “Discrimination for damages in international trade through Vietnamese commercial law, the CISG Convention and the UNIDROIT Principles” published in the Journal of Legislative Research No. 22 in 2009

• Du Ngoc Bich with the article “Suggestions on the contract penalty clause and the relationship to compensation for damage in the draft Civil Code (amended)” published in the Electronic Journal of Democracy and Law [6]

• About monographs: We can mention a number of monographs that refer to the research problem of the thesis such as the book “Contract Institutions in the Civil Code of Vietnam” by author Nguyen Ngoc Khanh and published by the Government. Judicial publication published in 2007 [7]

• The book: “Measures to handle the nonperformance of contracts in Vietnamese law” by the author Do Van Dai was republished in 2013 by the National Political Publishing House (with corrections and additions)

• The book: “Vietnam Contract Law - Judgment and Commentary” by author Do Van Dai was published by the National Political Publishing House [8]

• The above studies have partly clarified the issues related to the contract and the liability for damages in the contract. The above studies are inherited and used by the author in his research [9]

Theoretical Issues Related to the Topic

The Concept of Liability for Damage in A Contract of Carriage of Goods by Road: The Civil Code 2005, as well as the Civil Code 2015, do not provide a definition of compensation for damage caused by a breach of contract. However, unlike the 2005 Civil Code, in addition to recognizing the causes that may lead to liability for compensation for damage similar to the Civil Code of 2005, the Civil Code of 2015 has added the provision “Liability to compensate for damage due to breach of obligation” in Article 360. With the provision “In case of damage caused by a breach of obligation, the obligor must compensate for all damage, unless otherwise agreed or otherwise provided by law”. Article 360 ​​of the Civil Code of 2015 has recorded an overview of liability to compensate for damage caused by the breach of obligation, including liability for compensation for damage caused by the breach of contract and liability for compensation for non-contractual damage. This is completely reasonable because the contract is the main basis for giving rise to the obligation. In addition, Article 360 ​​of the Civil Code 2015 also specifies the principle of compensation for damage and the grounds for giving rise to liability to compensate for damage. Accordingly, to give rise to a liability to compensate for damage requires three grounds: there is a breach of obligation; there is damage; there is a cause-and-effect relationship between the breach of duty and the damage that occurs.

According to the 2005 Commercial Law, compensation for damage is “the breaching party’s compensation for the damage caused by the breach of contract to the breached party”. Liability to compensate for damage arising from a contract of carriage of goods by road is the responsibility to compensate and compensate for the loss of goods (destroyed, lost, damaged or delayed). between the parties of a contract for the carriage of goods by road to the injured party due to their failure to perform or improper performance of their contractual obligations.

Liability for damage arising from a contract for the carriage of goods by road is one of two basic types of liability for road transport: Liability for loss or damage of luggage or goods; Liability for damage caused to a third person.

From the above observations, the concept of liability to compensate for damage in a contract of carriage of goods by road can be established as a remedy for the consequences of a breach of contract, in order to ensure civil liability. under a contract is performed by compensating for losses resulting from a breach of contract caused by the breaching party to the aggrieved party.

Features of Liability for Damage in A Contract of Carriage of Goods by Road

From the concept analyzed above, the liability to compensate for damage in a contract of carriage of goods by road has the following characteristics:

First, the liability for compensation in the contract of carriage of goods by road is a type of civil liability: Compensation liability in a contract for carriage of goods by road is a contractual civil liability arising on the basis of a prior contract between the parties. The carrier causing damage to another person must be responsible for compensating the damaged person for the material and spiritual losses suffered by the damaged person. The compensation shall be made in accordance with the provisions of civil law. Therefore, indemnification in a contract of carriage of goods by road is considered a type of civil liability.

Second, the establishment incurs liability to compensate for damage in the contract of carriage of goods by road: The liability for compensation in a contract of carriage of goods by road arises on the basis prescribed by law. The person who causes damage, if satisfying the signs on the grounds for arising liability to compensate for damage according to the provisions of law, must pay compensation. Accordingly, Article 541 of the Civil Code 2015 stipulates the grounds for arising liability to compensate for damage in the property transportation contract as follows: “The carrier must compensate the transport hirer for damage if the property is left behind. property is lost or damaged, except for the case specified in Clause 3, Article 536 of this Code. The shipping hirer must compensate the carrier and the third party for damage caused by dangerous and toxic properties without packing and safety measures during transportation. . In case of force majeure resulting in the loss, damage or destruction of the transported property during the transportation, the carrier shall not be responsible for compensation for damage, unless otherwise agreed upon or provided for by law and other rules”.

Third, about the level of compensation in the contract of carriage of goods by road: The level of compensation is aimed at compensating the injured person for the material and mental losses that he or she has to suffer due to the carrier’s loss or damage to the goods. Therefore, in order to ensure the legitimate rights and interests of the damage sufferer, the law stipulates in principle that the person causing damage (the person responsible for compensation for damage) must compensate for the entire damage actually occurred. quickly and in a timely manner. Damage can only be reduced in some special cases where the person causing the damage was not at fault, was at fault and the damage that occurred was too great for their immediate and long-term economic viability.

The Legal Status of Liability for Damage in Contracts for Carriage of Goods by Road

Grounds for Arising Liability for Damage in A Contract of Carriage of Goods by Road: Before the 2015 Civil Code took effect, it can be said that Vietnam’s contract law represents the approach to liability for damages caused by the breach of contract in both legal systems. That is, while the 2005 Civil Code mainly considers liability for damages as fault-based liability, the 2005 Commercial Law considers this liability a strict liability. The difference in the approach of the 2005 Civil Code and the 2005 Commercial Law leads to a difference in the application of the measure of compensation for damage caused by a breach of contract.

That is, to apply the measure of compensation for breach of contract under the 2005 Civil Code, the aggrieved party must prove that the party causing the damage is at fault, while under the 2005 Commercial Law, the aggrieved party must prove that it is at fault. The damage does not need to prove that the party causing the damage is at fault because the breaching party is presumed to be at fault when it fails to properly perform its contractual obligations. Based on the provisions of the 2005 Commercial Law and the 2005 Civil Code, it can be seen that the 2005 Commercial Law provides stronger protection for the injured party due to a breach of contract than the 2005 Civil Code. Vietnam’s private legal system and in order to stronger protect the contract breached party, when conducting a review and assessment of the level of consistency between the Civil Code and specialized laws during the construction of the Civil Code in 2015, the employer Vietnamese law has recognized the positive points of the 2005 Commercial Law compared to the 2005 Civil Code and codified these points into the 2015 Civil Code.

One of the positive points of the Commercial Law 2005 codified into the Civil Code in 2015 is the provision on the grounds for applying the measure of compensation for damage. Accordingly, in order to apply the measure of compensation for damage caused by a breach of contract, the Civil Code 2015 only requires three grounds: There is a breach of contract, damage occurs and there is a cause-and-effect relationship between breach of contract and damage occurred.

Thus, it can be said that in most legal systems in the world, including Vietnam’s contract law system, in principle the liability to compensate for damage caused by a breach of contract is determined as strict liability. , that is, the liability to compensate for damage caused by a breach of contract is determined on three grounds: There is a breach of contract, there is damage and there is a causal relationship between the breach of contract. and damage occurs. These are cases where the legal science of the world merges fault with breach of contract or non-performance, which means that the breaching party is presumed to be at fault. In addition to strict liability, legal systems also recognize a fault-based liability. These are the cases of legal science in the world, besides the requirement of violation, it also requires proving that the breaching party is at fault (fault-based liability). Derived from the similarities and differences between the legal systems on contracts mentioned, the thesis will analyze in turn the bases for applying the compensation measure in general and in the contract of carriage of goods transportation by road in particular.

Principles of Compensation for The Contract of Carriage of Goods by Road

Stemming from the purpose of compensation is to remedy the consequences caused by the non-performance of the contract, the Vietnamese legal system also recognizes the principle of compensation for damage due to breach of obligations in general and Compensation for damage caused by a breach of contract, in particular, is compensation for all damages that the aggrieved party has to bear. This principle is recognized in Article 360 ​​of the 2015 Civil Code: “In case of damage caused by a breach of an obligation, the obligor must compensate for all damage, unless otherwise agreed or The law provides otherwise”.

In addition to pointing out that the principle of compensation for damage in the Vietnamese legal system is to compensate for the entire Civil Code of 2015, it also clearly states that the damage to be compensated is not only material damage but also physical damage. about spirit. Unlike the 2015 Civil Code, the 2005 Commercial Law does not provide a principle of compensation, but with the provisions of Clause 2, Article 302: “The compensation value includes the actual, direct loss value. suffered by the aggrieved party as a result of the breaching party and the direct benefits that the aggrieved party would have enjoyed if the breach had not occurred”.

Thus, although the Civil Code of 2015 and the Commercial Law of 2005, there are different in recording the principles of compensation for damage as well as the criteria for determining the level of compensation, both are important legal documents According to Vietnamese law, the principle of compensation for damage is to compensate for all damage to goods.

All other cases prescribed by law are exceptional cases, which must be strictly applied in accordance with the provisions of the law and must not be interpreted by the method of an application similar to the law in order to expand the scope of application. Article 585, Clause 2 stipulates that the person responsible for compensation for damage may be entitled to a reduction in compensation if there is no fault or unintentional fault. However, such provision is formulated as an exception within the framework of the regime of non-contractual liability and cannot be extended to civil liability for breach of contractual obligations.

Proposal to Improve the Law On Liability to Compensate for Damage in The Contract of Carriage of Goods by Road

From the legal regulations and the actual situation, the writer proposes some recommendations to improve the legal provisions on liability for damage compensation in the contract of carriage of goods by road as follows:

First, instead of stipulating the liability to compensate for damage caused by a breach of contract, it is mainly the responsibility based on fault factors like the Civil Code 2005, Commercial Law 2015 and especially the Civil Code 2015 - the original law of Vietnam. Private law has recognized that liability for damages for breach of contract is primarily a strict liability. Accordingly, the Civil Code 2015 recognizes the principle of presumption of fault in the liability to compensate for damage caused by a breach of contract in particular and the liability to compensate for damage in general, specifically in the event that the obligor fails to perform in accordance with the committed obligations, it is presumed to be at fault and must be responsible for compensating for damage. The advantage of this fundamental change in the 2015 Civil Code is that in order to apply the measure of compensation for breach of contract under the 2015 Civil Code, the aggrieved party does not have to prove that the party causing the damage is at fault. This provision shows that the 2015 Civil Code protects the damaged party more strongly than the 2005 Civil Code as well as reduces costs and saves time spent proving the fault of the violating party. contract.

Second, it is recommended to amend Article 361 of the 2015 Civil Code. The provisions of Vietnam’s contract law on requirements for compensated damage are not completely consistent, that is, Clause 2, Article 302 of the 2005 Commercial Law. requires compensatory damage to be “actual and direct” damage, but Clause 2, Article 361 of the Civil Code 2015 only requires damage to be compensated as “actually identifiable physical loss”. Although the 2015 Civil Code is more accurate than Article 302 of the 2005 Commercial Law when it does not require that the damage be “direct” damage, the provisions of Clause 2, Article 361 of the 2015 Civil Code seem to contradict the content of the Civil Code. itself by the “actually identifiable physical loss” which is interpreted by the Civil Code 2015 as “loss of property, reasonable costs to prevent, limit, remedy the damage, actual lost income loss or impairment” includes not only direct damage but also indirect damage. In particular, the compensation for damage is the lost profit which is clearly shown in the provisions of Clause 2, Article 419 of the Civil Code 2015.

Third, with the provisions of Clause 2, Article 302 of the 2005 Commercial Law: “The value of compensation for damage includes the value of the actual and direct loss suffered by the aggrieved party caused by the infringing party and the amount of damage caused by the violating party. direct benefits that the aggrieved party would have been entitled to if there had been no violation”, the Commercial Law pointed out that the types of damages to be compensated include actual loss and lost profit. However, due to the use of the adjective “direct” after the nouns “loss” and “gain”, this provision of the Commercial Law 2005 seems to have eliminated compensable damages as indirect damage. next. In order to ensure consistency in Vietnamese contract law in general and consistency with the 2015 Civil Code in particular, Clause 2, Article 302 of the 2005 Commercial Law should be amended as follows: “2. The value of compensation for damage includes the actual loss value that the aggrieved party has suffered due to the violating party and the benefits that the aggrieved party would have enjoyed if there were no violations.

Fourth, it is recommended to use the term “compensation for damage predetermined in the contract” instead of the term “penalty for violation” of the Civil Code in 2015, there is a consensus on the amount of compensation for the damage that is predetermined in the contract. contract and penalty for breach of contract. In addition, Article 418 of the Civil Code 2015 on the one hand shows deterrence and punishment in order to prevent contract violations and thereby ensure the correct performance of the contract, but on the other hand, this clause also plays an important role. compensation to remedy the damage suffered by the aggrieved party.

Fifth, it is recommended to amend Clause 2, Article 360, Clause 3, Article 405, Clause 3, Article 406 of the Civil Code in 2015 stemming from the principle of free will, in the Vietnamese legal system, the agreement on the exemption from liability for compensation is granted. implicit in Article 13, Article 360 ​​of the 2015 Civil Code with the provisions: “Unless otherwise agreed” and is more clearly stated in Clause 3, Article 405, Clause 3, Article 406 of the 2015 Civil Code. The liability to compensate for damage is also recognized at Point a, Clause 1, Article 294 of the Commercial Law 2005. Clause 2, Article 360 ​​of this Code, this provision is invalid.”

Sixth, it is recommended to supplement regulations on the time of damage calculation Since the time of damage calculation has not been specified in principle in the 2005 Civil Code and the 2005 Commercial Law - important acts of the private law, time The point of damage determination is a controversial as well as confusing issue in the adjudication work. There is a scientist who raises the issue of considering the time of damage determination as the time of first-instance trial and the time of determining damage as the time of causing damage.

A contract for carriage of goods by road is a contract entered into between a carrier and a carrier, under which the carrier collects freight paid by the carrier and uses road vehicles to transport goods. transfer. Characteristics of a contract for the carriage of goods by road is a bilateral, compensatory contract that may be a contract for the benefit of a third party; the target audience of the parties to the contract of carriage of goods by road.

Liability for damage in a contract of carriage of goods by road is a remedy for the consequences of a breach of contract, in order to ensure that civil liability under the contract is performed by compensating loss is the consequence of a breach of contract caused by the breaching party to the aggrieved party. The provisions of the law on liability to compensate for damage in the contract of carriage of goods by road are the basis for arising liability; compensation principles; compensation level; time of compensation and exemption from compensation liability.

1. Dai, D.V. Law on Compensation for Non-Contract Damage in Vietnam: Judgments and Judgment Comments. Hanoi: National Politics, 2010.

2. National Assembly of the Socialist Republic of Vietnam. Civil Code 2015 (Law No. 33/2005/QH11). June 2005.

3. National Assembly of the Socialist Republic of Vietnam. Commercial Law (Law No. 36/2005/QH11). June 2005.

4. National Assembly of the Socialist Republic of Vietnam. Law on Intellectual Property (Law No. 50/2005/QH11). November 2005.

5. National Assembly of the Socialist Republic of Vietnam. Law on Road Traffic 2008 (Law No. 23/2008/QH12). November 2008.

6. National Assembly of the Socialist Republic of Vietnam. Constitution 2013. November 2013.

7. National Assembly of the Socialist Republic of Vietnam. Civil Code 2015 (Law No. 91/2015/QH13). November 2015.

8. National Assembly of the Socialist Republic of Vietnam. Labor Code 2019 (No. 45/2019/QH14). November 2019.

9. National Assembly of the Socialist Republic of Vietnam. Commercial Law (No. 17/VBHN-VPQH). July 2019.