On The Nature Of Datio In Solutum

In view of the nature of datio in solutum,especially the promise and practicality,there has always been a dispute in theory.The traditional theory holds that datio in solutum is a practical legal act,and only the debtor's realistic performance of other kinds of payment can establish datio in solutum.The new theory holds that as long as it does not violate the provisions of the law,the datio in solutum agreement reached between the parties should be valid.Under the background that the legislation of our country does not stipulate the datio in solutum system,the theoretical dispute inevitably has an impact on the judicial practice,which leads the courts at all levels to make different determinations on the nature of the datio in solutum agreement.In view of the promise and practicality of datio in solutum,the first part analyzes the legal structure of datio in solutum,clarifies the significance of clarifying the promise and practicality of datio in solutum,and expounds the relationship between s datio in solutum and similar systems,combing the current legislative and judicial system provisions and practical identification of datio in solutum in our country;the second part analyzes the dispute over the nature of datio in solutum,and identifies the outstanding datio in solutum agreement from the theory of practice and the theory of promise respectively,this paper affirms the theory of promise,and points out that the legal effect of datio in solutum agreement should be the same as that of new debt settlement in principle,unless otherwise agreed by the parties;the third part starts from the influence of the dispute over the nature of datio in solutum on judicial practice,it points out the relationship between the old and the new debts formed before and after the s datio in solutum agreement,the parties do not have the right to choose the performance of the new and old debts,and should bear the corresponding liability for defect guarantee and breach of contract in respect of defective performance and breach of contract,whether the new creditor's right has priority or not should be based on the old debt,at the same time,the problem of unequal value in the performance of other kinds of payment should be viewed rationally,and the objectivism interpretation should be taken as the principle when the parties' intention is not clear,and the explanation in favor of the creditor should be made.