Study On The Applicable Conditions Of The “buy And Sell Without Breaking The Lease” Rule

Kauf bricht nicht Miete,is stipulated in Article 229 of Contract Law of the People's Republic of China.Generally speaking,to adopt Kauf bricht nicht Miete should at least satisfy the following criteria:the leasing contract is valid at the start of the contract,the change of ownership occurs during the validity period of the lease and the lessee is willing to continue the contract.However,except to the article mentioned above talking about how to apply this rule and the effects of application,there are no more details talking about Kauf bricht nicht Miete.Thus,what is the meaning of these three criteria is worth exploring.With further discussion based on the three criteria,this paper wants to bring forward the applicable condition of Kauf bricht nicht Miete and its real value in judicial application.Chapter One,an overview of Kauf bricht nicht Miete,including introduction of the history of the rule and analyses the present application situation of the rule in China.According to the writer,the applicable condition in China is not clearly stated and that can be concluded as three major problems:1)whether it is necessary to proclaim the lease contract,2)whether it is applicable to different types of ownership changing,and 3)how to define "Lessee".Chapter Two,analyzes the definition of the validity of the leasing contract,which is also the first applicable condition of Kauf bricht nicht Miete.During the validity period of a leasing contract,purchase is subject to the existing lease which makes it different from the other general ones.So the write proposes that in order to adopt the rule,it is necessary to proclaim the lease contract by possessing of the lease subject.Chapter Three,analyzes the change of ownership during the validity period of the lease,which is the second applicable condition of Kauf bricht nicht Miete.According to the writer,there're two types of ownership changing,which are caused by Rechtsgeschaft and caused by public law action.Further comparison and discussion will be necessary to determine whether the two types are applicable.Chapter Four,detailed the lessee's willingness to continue the contract,which is the final applicable condition of Kauf bricht nicht Miete.In the writer's opinion,the study in the definition of "Lessee" and the way that lessee express their willingness is essential and important,especially in a "partial tenancy" or "joint tenancy".Chapter Five,comes to the conclusion.Kauf bricht nicht Miete is aimed at protecting lessee's interests and it is a reflex of the principle of autonomy.The applicable condition of this rule includes "possession" of the lease subject,distinguishing the two types of ownership changing and lessee's willingness.And the definition of "Lessee" and the way that lessee express their willingness are both special.