On Behalf Of The Matter Is Settled The Theoretical And Practical Issues

The legal device of acceptance in the fulfillment of lieu refers to the situation that the creditor accepts other ways of fulfillment instead of the originally agreed one, so that the obligation can be wind up. It will help the creditor realize his/her rights and interest in the circumstance that the agreed performance rendered impossible, it will facilitate the parties to choose a more reasonable subject matter according to the situation, it will also have the obligation performed as soon as possible and diversify the content of the obligation. As a way of winding up the obligation, this legal device is prescribed in laws of many countries, however, there is no such kind of prescription in Chinese law; it is widely recognized in the practice and among scholars in accordance with the principle of contract freedom.The legal device of acceptance in the fulfillment of lieu is a substitute of performance, its concept comes out of the performance, though there is huge difference between them, the most distinctive feature is that it is a kind of contract. As a contract, its nature is much debated, some people insist that it is the kind of contract executed by transferring the subject matter while others believe it is a refreshment of the contract, some others consider it as a special way of modifying the contract. Besides, in the field of changing the subject matter of the obligation, there exist other two legal devices besides the discussed one, namely the indirect performance and the refreshment of the obligation, they differ slightly and overlap with each other in the practice. This paper will analyze the constitutive elements from the above aspects and discuss the debated problems of the legal device of acceptance in the fulfillment of lieu, and propose my legislative suggestions at the end of the paper.