The Co-existence Of Culpa In Contrahendo And Defect Warranty Liability

The Culpa in Contrahendo was first proposed by Thering and was known as a legal discovery.It aims to solve the damage caused by trust in the contracting process.The defect warranty liability is the core system of the sales contract,which is intended to require the seller to guarantee the subject matter of usual or agreed quality requirements.The two systems seem to be independent,but can coexist under certain circumstances.And with the expansion of the obligation to inform and the diversification of the defection,the intersection of the two has also expanded.So what circumstances can the two coexist? What is the relationship between the two systems?Whether the relationship has an impact to the parties? These issues are worth exploring.This article is divided into the following three parts:The first part is mainly to clarify the relationship between Culpa in Contrahendo and defect warranty liability.First of all,a premise is made that there is of course a possibility of establishing Culpa in Contrahendo in the valid contract.Starting from the comparative law,it is concluded that whether the country with the general clause model or the country with the non-general clause model,the Culpa in Contrahendo can be established under the effective contract.For China,as a country of general clause model,it can't rule out the Culpa in Contrahendo under the valid contract from the interpretation of the law.Moreover,it is affirmed in the judicial practice.Subsequently,based on the particularity of the inspection period for the defectwarranty liability,it is important to analyze whether the inspection period will have a certain impact on the coexistence of the two.The key to inspection period is the notice,which is more like a obliegenheiten.Once the buyer has not carried out the inspection during the period,he will lose the substantive right,so he can't claim the right of defect warranty liability.Of course,there is no coexistence between the two.It can be seen that the buyer's inspection notice is one of the important conditions for coexistence.The second part discusses the relationship between the two systems.Form the analysis of Professor Larenz's classification for the competition,we can see that,first of all,the payment of both is damages,so it is not the aggregation of claims.Secondly,there is no special legislative consideration for any of them,so the competition for exclusive of the norm does not apply.Finally,in order to protect the buyers,when one purpose of the claim is reached,the other claim is extinguished,so the competition of two is the concurrence of claims.However,different countries have different legislative models for concurrence of claims,China has learned from Germany's legislation.It is applicable for our country,which allows the party to choose any right to exercise.The third part makes an in-depth analysis of the concurrence of claims,and demonstrates the tinteraction of claims is the appropriate theory to deal with the relationship.According to China's stipulations,it is not known whether its application of free co-opetition or mutual influence,but the latter can solve many of the shortcomings brought by the former.Judging from the concurrence of the Culpa in Contrahendo and defect warranty liability,the tinteraction of claims can better solve the injustice caused by the two.So it is necessary to use the tinteraction of claims to deal with the relationship.