Absence Of Time Of Performance And Delay Of Performance

As contracts being the most significant tool for private autonomy,solving contractual disputes should always starts from the consensus if the parties,clarifying the rules set up in contract.Once a casus omissus is identified by interpretation,there two means in option to solve the casus omissus: constructive interpretation and dispositive laws.Generally dispositive laws should be given priority and constructive interpretation should be specifically justified.However as the time of performance is concerned,constructive interpretation shall prevail for two reasons.The formal reason is that Article 62 of Contract Law of the PRC stipulated that premise of its applying is fail of Article 61.The substantive reason lies in the supplementary position of Article62,which means the rules of this article contains merely constructive intention of the parties instead of material arrangements.Constructive interpretation should above all be based on the actual common intention of the parties and in absence of the same,objective criterion,such as nature and purpose of performance,usage of trade.As regarding the requirement of a warning by the obligee in case of delay of performance,this thesis explored the function of delay-warning in German system.In German law,the obligor is will not be in delay until the obligee gives the obligor a warning,unless the time of performance is fixed according to the calendar.Earlier German theorists held that the function is to fix the time of performance.Under thistheory,when an obligation is due,it merely means that the obligee is entitled to claim the performance and the obligor is not obliged to perform until the obligee claims.However this theory does not conform to the actual intention of the parties in most cases.The prevailing theory nowadays holds that the time of performance should be fixed by means of constructive interpretation and the consequences of delay should be postponed to the arrival of a warning by the obligee,considering the severity of the consequences.Although the functions and the corresponding rules under the two theories are different,the core of a warning lies in equity,on the ground that the obligor is generally in a vulnerable position and entitled to extra protection.Dating back to Roman law,this premise should be in doubt in modern society,as this warning requirement is being abandoned in comparative law.With this background,we should neither set up such a requirement by means of legal interpretation,nor in codification of civil code,since Contract Law of the PRC does not stipulates one.Specific protection requirement can be satisfied in the frame of “reasonable time”criterion.On this base,when in absence of the time of performance,No.4 Article 62 should not apply as long as a time can be fixed by means of constructive interpretation,even though the time is not fixed according to calendar.The obligor should be found in delay when he does not perform in accordance to that time,without a warning or a request by obligee.However a request by the obligee is not complete meaningless.Rather it can be a referencing element in determine a reasonable time of performance.A typical case for applying No.4 Article 62 is lending without specific duration.