Research On Expectant Right In Retention Of Title

With the rise of the transaction of retention of title, the concept of expectant right, which is from the writings of German jurists, comes out after a great study of conditional legal acts. This concept provides better instructions of balancing interests between the parties involved. Within the concept of expectant right, vendee's expectant right that includes the nature and the transfer and the good faith acquisition and the enactment of burdens and the conflicts between other rights and the protection of expectant right, which emphasizes the most in this paper, is of most importance and typicality. From the view of theoretical analysis and practical application of some countries and regions, the protection of vendee's expectant right and the balance between competing interests and the application in the civil practice will be studied.The body is divided into four parts. The first part discusses the general rules and theories of expectant right in retention of title. The concept of expectant right originated with the German jurists, and brings great influences, to whether continental or Anglo-American Legal System, to social and legal practice. Opinions differs in what expectant right is, and this paper believes it be strengthening of simple expectance, and be characteristic of some determinacy and factors of full right and legal protection. Expectant right is imperfect that has effects of full right and within it vendee's expectant right is of much typicality. The opinions of the nature of vendee's expectant right differs strongly, and this papers believes it be a kind of real right. Numerous clauses shall not be a barrier of admitting it.The second part discusses the positive validity of vendee's expectant right. The positive validity of vendee's expectant right allows the vendee dispose his right that the seller and the third party cannot interfere. In particular, the vendee can transfer his expectant right to a third party which needs not the sell's consent and assistance. When the conditions arranged achieves, the third party will acquire the property of the subject matter from the seller. The vendee shall set the right of pledge over the expectant right which the seller can not intervene. These positive functions of vendee's expectant right prove its nature of real right, and the latter determines the former in turn.In the third part, here considers the negative effects of vendee's expectant right. The negative effects of vendee's expectant right allows the vendee restricts other's right to the subject matter. In particular, firstly, the seller cannot excise the right of recall at will, and the vendee shall enjoy some remedies. Secondly, when the seller resells the subject matter, vendee should have the right of defense deriving from the expectant right against the seller and a third party's right. Thirdly, when expectant right conflicts with the security interests, vendee's expectant right shall always exist, whether the latter registered or not. Fourthly, when expectant right conflicts with the right of lien, the latter will prevail, and the loss of vendee can be claimed to the seller.In the forth part, there is a discourse on legal protection of the vendee's expectant right. It firstly discusses some remedies the vendee enjoys on the infringement of the property by others, and holds the viewpoint that the vendee can benefit more for his expectant right is a kind of real right. And then, on the basis of the analysis of legislation and practice home-and-abroad, this part presents arguments that the vendee shall have better place when the seller's creditor enforces an auction of the property, and that legal protection must be give to the vendee when the seller's insolvency.