Comparative Study Of The Exemption Of Debt Assumption And The Performance Of A Third Party

The assumption of debt is not change the contents of debts,the creditor or the debtor and the third party sign a contract, which transfer all or part of the debt to the third party. According to whether exempt the debtor after the assumption of debt, we can divide the assumption of debt into the exemption of debt assumption and the coexistence of debt assumption. The performance of a third party refers to the debtor and the third party agree that the third party to perform the debtor’s debt. The commitment is between the debtor and the third man, which is nothing to do with the creditors.The performance of a third party and the debt undertaking lie in 65 th and 84 th of the Contract Law of our country respectively,they are two ways of obligation of contract transfer. However, only the two terms cannot meet the demand of practice. For example, the 65 th of the Contract Law is one of the circumstances of the third people to perform. From the strict sense, the clause 84 th of the Contract Law only refer to the exemption of debt undertaking, doesn’t include in the coexistence of debt assumption,but the term is used in our verdicts, which should be solved as soon as possible. Because the legislation is not detailed and specific and there are many problems to be solved in theory, it is difficult to distinguish the performance of a third party and debt assumption, especially the content of the agreement is not clear, there are difficulties to identify the nature of the commitment, the opposite decision results often occur.The article is divided into three chapters except the introduction and conclusion.Chapter 1 introduces the sale case of Shanghai company v. Jiangsu company and Nantong Company, and its verdict and the reason, which make the reader feel the difficult to judge the legal relations when the variety of legal relationship of superposition interleaving and unknown meaning of parties.Chapter 2 summaries the legal characteristics of debt undertaking and the performance of a third party from the concept, constitutive requirements and legal effect, and compare the difference of two kinds of systems based on characteristics. Both the most essential difference lies in whether the third person become the parter of the contract. And the difference is that the identification standard of the content and the meaning of creditor agreement. The creditors’ agreement in the exemption of debt assumption refers to change the debtor to the third people, but the creditors’ agreement in the performance of a third party is to accept the third people to perform the contract.The first section of chapter 3 is based on the analysis of the legal characteristics between the debt undertaking and the performance of a third party to analyze the case in chapter1 and put forward my own opinions simultaneously. The paper think the contents of the agreement is vague, so we should presume Jiangsu Company instead of Nantong Company to fulfill the debt, not belong to the debt to join. The second section is about how to identify the debt assumption and the performance of a third party from the two points of view the contents of the agreement and contract subject.