On Several Issues Concerning The Delivery Of Moveable Estates

The thesis is composed by preface, text and conclusion. The importance ofbuying and selling as well as the business contract is the most important creditor’srights contract are introduced in the preface. Seller sales the ownership of the goodsfor the purpose of getting the payment, while buyer’s purpose of paying money is toget the ownership of the selling goods, the essence of the business contract is totransfer the ownership of the bid goods. In an ordinary business contract of themovable property, two civil rights of the Civil Law—creditor’s rights and propertyright will be involved inevitably, while ties connecting these two rights is the delivery,delivery has the role of medium to shift the creditor’s rights into the property right,the implementation of any business contract of movable property of the interestparties can’t do without delivery, is the inevitable result of the delivery, delivery is thesoul of business contract of the movable property.The text is divided into four paragraphs, first paragraph expatiates the characterof the delivery through comparison and analysis. Formalistic Civil Law based on theproperty right recognizes that besides the business contract of movable property,property right contract must be signed (property right act), plus the form of delivery,the ownership of the bidding goods can be transferred only in this way, that is to say,property right act exists independently besides the creditor’s rights, it also recognizesNon-cause character of the property right act, even if there is some mistake in thedelivery, but it is still in effect, party who lost its ownership can only claim returningof the goods according to the regulation of unmerited beneficial act. In theFormalistic Civil law based on the creditor’s rights, there is no relation between thedelivery of bidding goods and the shift of the ownership, that is to say, there is noalteration on the ownership of the property right, at most, it is only the oppositionalconditions of the movable property and the property right. In the Civil law of thecreditor’s rights, although business contract of movable property is in effect, transfereffect of the ownership doesn’t come into existence, only after the movable propertyis handed over, that the transfer of the ownership can come in effect, there is no needto sign another contract besides the business contract, delivery is the only key effective condition for the change of property right of movable property. This kind ofdoctrine is adopted by our country’s Civil Law.In the second paragraph of the text, the meaning of public notice and specificform of the delivery is mainly introduced in this paragraph. In the civil law of variouscountries, delivery public notice of the movable property, no matter it is legislatedaccording to autonomy of the will or in formalism, all takes delivery as a publicnotice of the movable property. In regard to the specific form, there are two kinds ofdelivery, one is practical delivery (including proposed delivery), another is conceptdelivery, concept delivery includes simple delivery, directive delivery and possessivechange. China’s Contract law recognizes simple delivery, proposed delivery. Future’sCivil Law in China should recognize directive delivery and possessive change.The foundation of the delivery—business contract is mainly introduced in thethird paragraph of the text. Formalistic Civil Law based on the property rightrecognizes that property right contract exists independently besides the creditor’srights act that is the business contract, therefore, it considers delivery belongs toproperty right act, it separates with the reason or creditor’s rights which is thefoundation of delivery, no matter a contract of the creditor’s rights is in effect,inefficacy or has been retracted, delivery will produce the effect that the ownershiphas been changed. The phenomenon to claim returning of the goods exists, but it isnot the reason or basic act—inefficient business contract or retracted property rightdemands returning of the goods, but it is the claiming right based on the regulation ofunmerited beneficial act. If don’t recognize that there is property right act in theimplementation process of creditor’s rights, then effect of delivery lies on the effect ofbusiness contract, if business contract is inefficiency or has been withdrawn, deliverywill not come into effect traced to the past, the party who owns the bidding goods isresponsible to hand back it, if business contract is changed, then delivery should bechanged also. Delivery foundation of claiming right—period from contract comesinto effect to implementation time; Terminating foundation of delivery—exertion ofcontradictory right; Claiming foundation of original delivery demand—inefficient orretracted contract; Claiming exception of original delivery demand—acquired by aninnocent third party.Delivery effect is mainly introduced in the fourth paragraph of the text. Effective delivery, it means that from the date of the delivery, ownership, breeding interest, riskresponsibility of the bidding goods will be owned and undertaken by the buyer, unlessthere is other contract or another agreement with the party. But seller still shouldundertake the insurance responsibility of goods or right blemish. If the delivery tallieswith the responsibility signed in the contract, this type of delivery will come in effect,if the delivery not tallies with the responsibility signed in the contract, this type ofdelivery is not regarded as a delivery. Some of special property right, take someexamples, civil aviation passenger aircraft, shipping, although it is delivered, theirsownership will not be changed certainly. Delivery itself can’t make the change of theownership forever, only a sell or other legitimate reason occurs and serves as aprecondition, only under such circumstance that the ownership can be changed. Thetransfer of the ownership arise from the delivery, not only adapts for variety of goodsbut also adapts for special goods. From the date of the delivery, accidental disappearor loss risk of bidding goods will be shifted to buyer, in spite of whether theownership is shifted, that is to say,“the party who owns the interests and also ownsthe risk”. Because of buyer’s reason leads to the bidding goods can not be deliveredon contracted time, then buyer should undertake the damage, disappear or loss riskbegin from the date it violates the contract term, no matter the buyer has the fault ornot. When the delivery is carried out based on an insufficient contract, in this case,buyer should return the goods or compensate the losses, but if the third party wishesto own the property with payment, that will be an exception. If the delivery is set upby a reversible contract, before it is withdrawn, the disposition of buyer on theproperty right and all the acts taken by the third party shouldn’t be of no effectbecause of the reversible contract, and that effect of a reversible contract should notinfluence the third party. If the delivery is carried out according to an undecided effectcontract, if the contract is admitted posthumously, the delivery is in effective; If thecontract is withdrawn by an innocent third party, then the contract has no bindingforce from beginning to end, delivery effect is adapted for the principle of aninsufficient contract. After seller delivers the bidding goods according to a powerlesscontract of handle, if it tallies with the conditions of bona fide, the powerless contractof handle should be regarded as an effective act, delivery is in effective.Last paragraph is the conclusion, delivery has the role of medium to shift the creditor’s rights into the property right, delivery refers to the change of property right,it shows the movement process of the property right, in a business contract ofmovable property, there is no act of property right absolutely. Unless there is otherregulations or other agreement with the parties, otherwise, not only the ownershipwill be changed, but risk responsibility and breeding interest will be also changed atthe same time in an effective delivery. In future’s Civil Law in China, delivery shouldbe regarded as key effective conditions of the property right and property estatechange continuously. In regard to the delivery from, our country’s legislation shouldrecognizes delivery and possessive change, but it only has the binding force in theconcerning parties, should not be aimed at third party. Delivery act not only shouldtally with contract or agreement, but it also should be transferred or possessed by thebuyer, only in this circumstance that a delivery can be regarded as has beencompleted, but directive delivery and possessive change are excluded. If the deliverytallies with contract, contracted responsibility is terminated.