The Nature,Content And The Boundary Of The Claim To Repair

Article 111 of the contract law is under the chapter of liability for breach of contract,and its range shall not cover all onerous contracts.For example,in a onerous custody and freight contract,the article should be denied its applicability to such onerous contracts,considering that the custodian and the carrier have no choice about the object of custody or transportation,the possibility of expecting its repair is low,and the risk and cost of transportation will increase dramatically.In terms of the understanding of the nature of repair claim,the effect of repair claim is obviously better than that of monetary damages claim from the perspective of satisfying the interests of creditors in the contract to the greatest extent,so it is closer to the right to specific performance;in terms of the debtor's added behavior obligation,the claim to repair is the same as monetary damages,because the parties who breach the contract have a obligation that is different from the original agreed obligations in order to satisfy the creditor's contractual interests.it should be considered that the right of claim to repair lies in the middle of the right of claim for performance and the right of claim for damages.In the order of repair claim and replacement claim,it should be admitted that there is no order between them,which can be chose by the creditor;in the order of repair claim and rescission right,this paper holds that the possibility ofrepair can not be the prerequisite for the Rescission Right--even if repair is possible,the creditor can still claim that defects cause the purpose of the contract not to be achieved and then rescind the contract.In the order of damage compensation for repair and the claim to repair,this paper holds that the binding force of the debt on the contract to the creditor and the binding force on the debtor are not the same,and the creditor should be admitted as much as possible to have the right to choose the remedy for breach of contract.The buyer shall not be admitted to have the right of repair claim in the sales contract where the seller is the consumer,and if the defect can be attributed to the creditor,the buyer also has no right of repair claim.In terms of the content of the right of claim for repair,the Seller shall bear the cost of repair,including the cost of pre litigation appraisal paid by the buyer to clarify the defect;the place of repair shall be the place where the subject matter is.The buyer's improper repair request violates the post contract obligation.If the buyer does not identify the fault that can be identified by the general person or the fault that can be judged under a little debugging,it should be considered that it has a gross negligence.At this time,it can be confirmed that it should bear the liability for damages to the seller.In response to the buyer's repair request,the seller can not only claim defense based on Article 110(2)of the contract law,but also directly determine the content of the recovery by replacement when certain preconditions are met.The buyer's self repair is not a system problem,but a value judgment problem.When the buyer who receives the subject matter of the defect decides how to repair the defect,the law can not require the buyer to first consider protecting the interests of the seller in the contract,and intimidating the buyer will have the corresponding consequences of loss of rights if the buyer do not do so.the "emergency" in Article 22 of the judicial interpretation of the sales contract embodies the idea of value measurement,but the elements are too strict.In this paper,as long as the buyer has a reasonable reason for self repair,it means that he has the right to self repair,and the seller should pay the cost saved from buyer's self repair.