The Expiration Of Claim Without Performance Time

The time of performance is not a necessary clause for the conclusion of contract,but it is anessential factor for the deal.If the parties do not agree to the time of performance in the contract,and it is still uncertain in accordance with relevant clauses of the contract or based on trade practices,the law shall determine the time of performance on the basis of balancing the interests of both parties.There are legal provisions related to the time of performance in Chinese law,"due","the period of performance","the maturity of the debts","expire","expiration" and so on.There are no differences among them.The expiration is time when the creditor can ask for payment and the debtor shall pay.Because expiration is the necessary condition of delay in performance,offset and the calculation of the limitation of action,“expiration” will be used in present study.The time that claim without performance time expires shall be determined by the term of article 62,paragraph 4 of the contract law.The scholar mainly explains that claim without performance time expires after reasonable time from the time that the creditor demands the debtor to fulfill the contract.Based on the purpose of the limitation system,the author thinks that claim without performance time will expire when the contract comes into effect and goes through reasonable time.The explanation shall be in accordance with the article 6 in the statute of limitations which determines the calculation of the limitation of action.For the purpose of coordination,it is necessary to clarify the time that thelimitation of action shall be calculated.There are two choices about that.In China,the limitation of action shall be calculated from the date on which the right holder becomes aware or should be aware of the tort of his rights and who the debtor is.While in other countries it shall be calculated from the date on which the right can be exercised.The difference between the two kinds of legislation lies mainly in claim without performance time.In order to avoid the failure of the limitation system,"the tort of rights" shall be interpreted as breach of duty,which is different from the usual explanation of "payment obstacle or tort".Claim without performance time is due since the contract comes into force and after a reasonable time,because of the purpose of laws relating to the system of limitation of action and comparative law.Which coordinates with laws relating to the system of limitation of action in China.However,compared with the general claims without performance time,article161 in the contract law has delayed the time for payment without performance time to "receipt of the subject matter or the documents for taking delivery of the subject matter ".The semantic interpretation,historical interpretation and system interpretation support this view.Based on lessons from "presumption of the time for payment" in Taiwan and Japan that delayed the time for payment,it’s concluded that the reasons why our law delays the time for payment are involving relation of bilateral contract and trading habit of cash on delivery.However,article 161 of contract law includes situations in which the time for delivery and payment are pending,and the scope of it is broader than "presumption of the time for payment ".In that situation,it is not suitable to apply the defense right of simultaneous performance,because the defense right of simultaneous performance has no function of confirming the expiration.It should be explained rationally to adopt general provisions of contract law rather than specific provisions of the contract law.However,in abnormal situation that the necessary preparation time for payment is longer than delivery,the principle of good faith can be used to adjust.The delay of the time for payment without performance time mainly affects thecalculation of the limitation of action.Article 161 of "contract law" should be well defined as the price shall be paid at the same time when the seller shall deliver the subject matter or the documents for taking delivery of the subject matter,otherwise the seller may delay the time for delivery and enjoys limitation interests.The delay of the time for payment only affects the calculation of the limitation of action,and has no function in delay in performance and offset..