The Independence Of Guarantee Liabilityaboutblemish Of Subject Matter

Trading has been playing an important role in the private law system,and the rules governing such behaviors in the process of trading are core rules of private law. The first chapter in the Contract Law with respect to the specific provisions introduces the sale and purchase contract, which shall be fully fulfilled to guarantee the objects of the contract that the concerned parties intended to achieve when entering into this contract. As seller of a contract, he or she shall ensure that the delivered objects shall confirm with the required quality and performance.If not, the seller violates his obligations under the contract, and shall bear the respective liabilities. The liabilities aforementioned are guarantee liability about blemish of subject matter.Guarantee liability about blemish of subject matter,when first derives form civil law in Roman, has been succeeded by countries and regions in the civil law system from then on, and thus has changed along with the development of their legislation techniques. As the law regarding such liability also exists in our country, I shall here finally manage to solve such problems as whether we have a system of guarantee liability about blemish of subject matter independent of our domestic and native default institution based on the current legislation,and if not whether we should consider establishing such an independent system?The first part, starting from the historical angle, first examines the origin of guarantee liability about blemish of subject matter in the Roman law, Next, I focus on exploring its development in civil law countries,and here I selected Germany as an example, on one hand because Roman law system has been inherited mainly by civil law countries, of which Germany is very typical. On the other hand because Germany not only inherited the Roman law, but has undergone a modernization reform of obligation law in 2002, in which the guarantee liability about blemish of subject matter is an important part thereof. We can better understand the changes and trends of such system in civil law countries through the reform. I respectively explain the reason and background where the guarantee liability about blemish of subject matter derives in this section and thus use such historical factors as one of those in observing the independence of the guarantee liability about blemish of subject matter in our country.The second part describes the general theory of the guarantee liability about blemish of subject matter, including methods in determining defects of the objects delivered, as well as the concept and quality of the general theory of the guarantee liability about blemish of subject matter. It should be noted that the difference between different kinds of theories in respect of the quality and essence of such system is closely related to the history and development of the system described in the first part, and the theories are actually the summary of the characters of this system in different history stage.I mainly analyze the current situation of the independence of the guarantee liability about blemish of subject matter, which are widelydebated by different scholars and thus lead to distinctive theories. Here I adopt a variety of methods of legal interpretation and explain both my positive opinions while in favor of a theory and negative opinions while opposing the other one, in order to demonstrate that we do not have an independent system of the guarantee liability about blemish of subject matter based on the current legislation situation.Finally, from the perspective of theoretical angle, I select the value of a system and historical factors as two elements in analyzing whether we should establish such an independent legal system of guarantee liability about blemish of subject matter in our country.