The Buyer's Right Of Rejection To Defective Goods

In the case of defective performance,the buyer's right of rejection is the most direct and effective remedy.However,our academic and practical circles often link it with the right to cancel the contract,or treat them as the same right,or consider the two rights have the same exercise standard,which leads to lack of clear concept,doubts about the independence of the right of refusal,system contradictions,and the excessive damage to the rights of the buyer(especially the consumer).In Chinese law,the main provisions of the buyer's right of refusal may include: Articles 71 and 72 of the Contract Law(Rejection of Partial Performance and Early Performance),Article 148(Rejection of Defective Payment),and Article 162(Rejection of Excessive Performance).The provision on "right of refusal to take delivery" is influenced by the legal theory of Taiwan;Article 148 is transplanted from the system of rejection of goods in the Uniform Commercial Code of the United States;Article 162 is a reference for Article 52 of the United Nations Convention on Contracts for the international sale of goods.Through comparative analysis,the concept of buyer's right of rejection may includes: when the buyer has not received the goods,he can refuse actual transfer of possession;after the buyer receives the goods and obtains a reasonable inspection opportunity,he can only deny the conformity of quality and refuse to pay the price.Among all the defects warranty rights,the right of replacement,cancellation and damage in substitution includes the content of returning the subject matter.Rejection of goods is only the collateral effect of exercising these three defects remedy rights,and has no independent value.However,in consideration of the seller's interest to cure,giving the buyer a general right of rejection is more in line with the interests of the parties.The buyer can urge the seller to correct the defects;for the seller,if he is unwilling or unable to repair the defects,he can set a certain period of time to urge the buyer to decide whether to terminate the contract.The substantial elements of the right of refusal are divided into positive elements and negative elements.The former mainly considers whether any defect can cause the buyer's refusal.The Uniform Commercial Code of the United States adopts the rule of perfect delivery,while the judicial practice holds that it must constitute a material inconsistency.But the buyer may be forced to accept the defective goods because it cannot prove the existence of material damage.British law sets different rejection criteria for consumers.For consumer sales,when the goods do not have satisfactory quality,the buyer has the right to refuse;for non-consumer sales,the quality defects of the goods should not be slight.Taiwan law requires that defects should meet the standard of the right to rescind,but as an independent defect guarantee,the rescission does not need to achieve the degree of "resulting in the failure of the purpose of the contract".Because the parties to an international sales contract are relatively far away,international conventions usually set a higher standard of fundamental breach for the right of refusal.Our contract law adopts the legislative mode of "combination of civil and commercial codes".In order to avoid excessive "commercialization" of the buyer's right of rejection,special protection rules should be set up for the consumer.At least the consumer can refuse the goods due to any defects within 7 days after receiving the goods.This right is a buffering means for the termination of the contract,which provides the seller with the opportunity to perform for the second time,so it is not necessary to reach the strict standard of "resulting in the failure of the purpose of the contract".The buyer must follow certain procedures to exercise the right of rejection.The buyer's premise for obtaining remedy for defects is to inspect the goods in time and notify the seller within a reasonable period after discovering or should have discovered the nonconformity.As consumers usually lack the necessary knowledge and skills,the inspection and notification obligations should be excluded in principle.In addition to the defect notice,the buyer needs to issue an independent notice of refusal.The notice may be raised at the same time as the defect notice is issued,or within a reasonable period of time after the defect notice.The more likely the seller is to suffer disadvantage,the shorter the "reasonable time" should be.The legal effects of the right of refusal include: first,when the buyer has not yet taken possession of the goods,but has already known that the subject matter has defects and made the right of refusal,the seller's performance does not have the effect of putting forward,thus preventing the transfer of risk from the beginning;however,defects are usually not self-evident,and can only be found after inspection.The buyer can only refuse to accept the quality of the goods after receiving the goods.At this time,it can not be called "preventing" the risk transfer,but "turning" the risk to the seller.Second,as a buffer for the termination of the contract,the right of refusal provides the seller with the opportunity to cure defects.The seller may make remedy before or after the expiration of the performance period,as long as it will not cause significant inconvenience or unreasonable damage to the buyer.The way of remedy shall be at the seller's option,but if consumers have doubts about the performance of the repaired goods,the seller's right to choose repair shall be limited.Third,the buyer who has taken possession of the goods or obtained the right of disposition shall bear the obligation of safekeeping until the seller has sufficient time to retrieve the goods,which is a collateral obligation based on the principle of good faith.They will establish a legal relationship of paid custody,and the buyer shall pay the attention of a good administrator.If the goods are prone to deterioration or devaluation,the buyer also has the obligation to sell urgently on behalf of the seller.The legitimacy is based on the "mitigation rule" in Article 119 of our contract law.