Study Of Datio In Solutum

In traditional theory,datio in solutum is recognized as a real contract,which means the contract will not be established if the debtor doesn't bring out a different prestation.However,the dispute of paties happens when the debtor doesn't bring out a different prestation in juridical practice.If we observe the traditional theory,the creditor's interest will be encroached.In the academic filed,the scholar explains datio in solutum in a different way.The different nature of the doctrine affects the judicial practice,and the phenomenon of different judgments in the same case occurs frequently.Starting from the phenomenon of retribution in judicial practice,this paper makes use of the method of case analysis and comparative study to expound the settlement of substitute property in detail,make clear the nature and effect of datio in solutum,clarify the distinction between it and the similar system in order to better solve the disputes in judicial practice.In the first part,the author points out that the misinterpretation of expiation of debts in kind in academic circles or judicial practice and the courts' determination of the nature of datio in solutum aren't same.The necessity of defining the connotation of datio in solutum and the significance of analyzing its consensual basis and liquidation effect are clearly defined.The second part explains the connotation of datio in solutum,through the perspective of comparative law to understand the original appearance of datio in solutum system,and analyzes the irrationality of datio in solutum as a real contract.It is put forward that datio in solutum is the satisfaction of the parties to replace the original payment with another kind of payment,and the creditor can actually receive a a different prestation which can make the original debt disappear,and the debtor actually proposes the other kind of prestation is the performance of the contract in force,instead of establishment of the contract.The third part discusses how to judge the agreed content of datio in solutum,because datio in solutum,the novation and the new debt are similar in the content of the different prestation instead of the original one.First of all,it is necessary to make clear the difference between the constituent elements and the legal effect of the three,so that the parties may make different transaction arrangements.And at the same time,demonstrating that there is still a doctrinal distinction.In cases where the party's intention is not clear,the normative interpretation of the other kind of prestation replaces the original prestation to be typed and discussed.Only when the other kind of prestation is transferring real right or similar situation(such as transferring of equity),can the parties agree to the contract of datio in solutum.The fourth part discusses that when there is an obstacle to the performance of the contract,the creditor has the option of two kinds of relief paths,which can require the debtor to perform the new debt according to the contract of datio in solutum.The relationship between refundable debts also requires the debtor to continue to pay the original payment.The fifth part combines the typical judicial cases in practice to analyze the relationship between expiation of debts in kind and datio in solutum.The author thinks that the contract of expiation of debts in kind made by the parties before the expiration of the period of performance of the debt is subject to the agreement of datio in solutum.If the liquidation obligation is not agreed upon,the current security clause shall be applied to determine that the agreement is invalid;if the agreement concluded by the parties is only for the purpose of paying off the debt and not for the purpose of security,datio in solutum is only one of the types of expiation of debts in kind.