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The Interpretation Of Rejection By Reference To Comparative Law

Posted on:2020-07-21Degree:MasterType:Thesis
Country:ChinaCandidate:W Y LianFull Text:PDF
GTID:2416330623453703Subject:Civil and commercial law
Abstract/Summary:PDF Full Text Request
Based on large amount of research in Chinese legal practice,it is found that the right of rejection in Article 148 of Contract Law was mostly used as reasons for rejecting the defective goods.Once the buyer properly exercises this right,he is able to claim damages for delay of performance.However,considering the requirement of the “failure of the contractual objectives” in Article 148 of Contract Law,if doing so,it may make the identification of damage awards unreasonable.The fundamental causes for the misuse are obscure legislation and deficiency in the theoretical research.The right of rejection belongs to the domain of remedies for breach of contract,it means disagreement to the quality of the goods.It is different from “refusing to accept”in Article 71&72 of Contract Law which intends to avoid acceptance in default.Also,it is different from “refusing to accept” in Article 162 of Contract Law which intends to settle the problem causing by the extra delivery rather than the breach of contract.According to the official definition,the right of rejection in Chinese law derives from the common law.Therefore,it is proposed that we should learn from the rejection in common law.By studying the rejection in common law,it can be found that the exercise of rejection doesn't require “failure of the contractual objectives”,rather,it intends to promote negotiation between the buyer and seller.As a result,the seller can cure by retendering performance,and finally avoid the termination of the contract.Though we change the rejection in common law when we make this rule,there is still possibility to retain the function of it —— providing cushion for the termination of the contract.When explaining the right of rejection,it is important to distinguish the relationship between Article 148 &111 of Contract Law.Article 148 is a special provision with respect to the Article 111.In other words,rejection belongs to one of repair,substitution,sales return,compensation for damages and so on.For the Article148 puts right of rejection together with termination,and the sales return has the same meaning with termination,the right of rejection can't be termination and sales return.Because repair and substitution in Chinese Contract Law doesn't require the “failure of contractual objectives”,rejection can't be the same with them.Moreover,damages together with delivery(e.g.damages for delay delivery)doesn't need the severity of the breach of contract,so rejection can only mean damages for alternative performance.This conclusion corresponds to the strict demand in German Civil Law.There is exchange theory and differenzhypothese when we calculate the damages for alternative performance.Differenzhypothese was intended to make up the lack of termination,it has no necessity to continue in our country for we can use termination and damages for performance interest together.Differenzhypothese will make the line between termination and damages for performance interest not clear,also,it will make dissolution by appointment no sense.If choosing exchange theory,on the one side,it can maintain time interest of the buyer(especially paying by the term bill),on the other side,it won't change original risk allocation.Even,it can avoid speculative transaction in bad faith.In a word,it is more reasonable to adopt exchange theory when calculating the damages for alternative performance.This also demonstrates the independence and meaning of damages for alternative performance.For exchange theory maintain the consideration relation of the contract to the utmost,so it is less severe than termination.In this regard,rejection in our country plays a role the same as the one in common law——providing cushion for termination.Of course,when the buyer fails to do it,he can also terminate the contract thereafter.The buyer can reject the goods only after accepting them.Under Chinese law,there is no specific stipulation in terms of rejection,therefore it is necessary to learn from the subjective and objective criteria when we identify “fundamental breach” in CISG.In order to detailing the terms of rejection,it is also necessary to take business practices into consideration.There are no rules to regulate exercise style and exercise time in Chinese law,so improvement is necessary.This article argues that the buyer should make notice which he will refuse to accept the goods,it belongs to meaning notification,and can apply the rule of declaration of will by analogy.At the same time,the notice should be restricted by some periods.When determining the periods,Article 158 of Contract Law can be applied by analogy.The “material disinterest” and“noble month” can also be applied to determine the reasonable period to refuse the goods.Furthermore,Article 17 of “judicial interpretation of sales contract” can make determination easier.It is important to protect the interest of the buyer and the seller of the contract when we adopt exchange theory.When the buyer hasn't pay for the goods,he can cite defense right of simultaneous performance to refuse to pay;when the buyer has payed for them,he can apply termination by analogy to demand the return of the price.Similarly,for the seller will undertake the risk of the goods after rejection,but the goods is under the buyer's control,so it is necessary to protect the seller's interest.The seller can demand the return of the defective goods by applying termination by analogy.Before the seller gets the goods,the buyer should take care of the goods according to the rule of mitigation of damages.In some cases,the buyer has the duty to sell the defective goods.
Keywords/Search Tags:Right of rejection, damages for alternative performance, exchange theory, refusing notice
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