A Comparative Study On The Criterion Of The Flaw Of Things

As early as ancient roman law times, the institutions of flaw guarantee which independent from liability for breach of contract existed for more than two thousand years has been already present, and still exert its function in morden civil law. The institutions of flaw guarantee is comprehensive in our country contract law, but it has some difficult when we take it into actural operation, that is because the criterion of the flaw is too large and isn't concretion, which formate law leak. In order to remedy this leak, this thesis compared the contents of continental legal system and common law system, and gave a critical judgement. This thesis established the system of criterion of the flaw over again on the basis of the Germanic civil law and UCC, in the hope of improve the feasibility of institutions of flaw guarantee, so that the institutions of flaw guarantee can exert its due action in chinese civil law.This thesis is devided into four parts.Part one introduces the contents of continental legal system which is primarily represent with Germanic law on criterion of the flaw of things. At the early 21 century, in order to transform three directives of European Law of Regulations and Directives, Germany reformed its civil code tremendous. In the new law, the institutions of criterion of the flaw of things changed greatly, at first the difference between subjective flaw and objective flaw is more distinctness,second it is add three new kinds criterion of the flaw which include flaws of fixing and specification,amount deficiency and heterogeneity delivery, trivial flaws.Assumpsit of parties which include quality and use of things make up of the criterion of subjective flaw. When the quality or the use of things isn't accord with the assumpsit, the thing can be regard as a flaw thing. Common quality which was described general use in Germanic civil law make up of the criterion of objective flaw. The standard of general use is diploid,first is normal use of uniform merchandise on usual occasion, second is the capability which bargainee can expect depend on the quality of things. The criterion of objective flaw is expanded in the new law, the openly statement of producer,bargainer and their assistant on the quality of things is regard as criterion of objective flaw. That is to say, the quality of things should not only conform to general use,but also the openly statement of producer,bargainer and their assistant on the quality of things. Three new kinds criterion of the flaw which include flaws of fixing and specification,amount deficiency and heterogeneity delivery, trivial flaws is set up for transform the European Law of Regulations and Directives, meanwhile enriched the meaning of flaw.Part two introduces the criterion of the flaw of things in common law and mostly studies the relative contents of UCC. Warranty which has the same function with flaw guarantee system in continental legal system is composed of express warranty and implied warranty, the standard of quality in express warranty and implied warranty is the criterion of flaw.When the bargainer describes the goods quality and this description is a part of basis of the bargain, the express warranty of the bargainer come to existence. Here the description of the bargainer constitutes the criteria of the flaw of things. These descriptions about goods quality have three forms: affirmation of fact or promise, description and sample and model. The implied warranty includes the implied warranty of merchantability and fitness for particular purpose. In the implied warranty of merchantability the thing according with the merchantability is considered as flawless that.Part three compares criteria of the flaw of things in two legal systems based on the studies about criteria in Germany law and American law. Through the comparison I think that we can identify the criterion of the flaw of things from three following angles: the assumpsit of parties, judging whether things have flaw according to the particular assumpsit; the open statements of the bargainer; the natural uses of things that is the minimum criterion of the flaw of things, because that things accord with the natural uses is the minimum request about their quality. As a new type of the criteria, the public statements of the bargainer are the necessary request of social development. Except these comparisons, I also compare the criteria of the flaw of things between Germany law, American law and Chinese law. This provides a foundation about the reconstruction of Chinese legal institutions for the following text.Part four discusses the elicitation to Chinese law from above comparisons. This section mostly discusses two aspects. The first one renewedly identifies the criterion of the flaw of things in The Contract of Law of PRC. The second one discusses many forms changing above criterion, and I think that many rules about criteria have no problem as a legal system, but many particular prescripts are so vague that legal gap comes into being. Thus in order to improve the criterion of the flaw of things in The Contract of Law of PRC, we should adopt the method of legal explanation.The epilogue of this article attempts to design clauses of legal explanation about the criteria of the flaw of things in The Contract of Law.This thesis discusses the criterion of the flaw of things in common law and Civil law and compares them particularly. Thus we can identify the criterion, study the constitutions of the criterion, and make it play an important role in social life and judicial practice. Accordingly flicking away the dust on the flaw guarantee, this important institution radiates bright luster.