On The Replacement Of The Defective Goods Under Sales Contract

In the sales contract,the seller has the obligation to deliver the goods without defects.Correspondingly,when the seller's performance is flawed,the buyer has certain rights to remedy the defect.This is due to the principle of corresponding rights and obligations.Among them,replacement refers to the delivery by the seller of an otherwise flawless subject matter,which is of great significance to achieve the purpose of the contract between the parties.However,the current legislation in our country is still insufficient and highly generalized.Therefore,it is necessary to combine the experience of comparative law with China's judicial practice to make a systematic explanation of the system positioning,applicable scope,applicable conditions and order of the replacement system.First of all,regarding the system positioning of the replacement system,the "continuing performance" and "taking remedial measures" stipulated in Article 107 of the Contract Law of China are independent of each other,and replacement is a remedy to the defective original payment,belonging to "taking remedial measures".Secondly,as far as the scope of application is concerned,replacement is not only applicable to non-specific objects,but also to specific objects on certain conditions.Whether specific objects can be replaced or not should be determined by combining the replaceability of the subject matter itself with the intention of the parties.Non-realspecific objects still have the property of non-specific objects in essence,and can be replaced just like non-specific objects.As for real specific objects,if the intention of the parties is not limited to the only specific object,they should be allowed to require replacement when the subject matter is defective.Thirdly,as far as the applicable conditions are concerned,replacement is conditional upon the seller's defective performance and the buyer's choice of replacement.The definition of "defect" is subjective,that is,the agreement of the parties shall prevail;if the parties do not agree,supplementary explanations shall be made.The application of replacement is not based on the premise of fundamental breach of contract.However,in the case of minor defects,the application of replacement should be excluded in principle.There is no order between replacement and repair,and it should be determined according to the specific circumstances of the case.The buyer's various remedies constitute a competition of choices.When a remedy fails,is impossible or unreasonable,or is rejected,the buyer should be allowed to change his choice.Last but not the least,regarding the relationship between replacement and other remedies,it should not be concluded from the perspective of comparative law that there is a fixed order among the various remedies in China's Contract Law.Instead,we should focus on the constituent elements of each remedy.Specifically,the statutory right to cancel is based on the premise that the subject matter cannot be repaired or replaced.Generally,if the subject matter can be repaired or replaced,the purpose of the contract can still be achieved.The price reduction is intended to restore the balance between the payment and the treatment of the payment by adjusting the price,and is applicable to the occasion where the buyer accepts the payment without requiring the seller to repair or replace it.The buyer has the right to choose freely between price reduction and repair or replacement.Damages are divided into different types,among which the damage in lieu of entire performance is similar in function to cancellation,and it should be inferior to repair and replacement.