Research On The Relief System Of Defective Performance In Sales Contract

In the contract law of our country,when the subject matter delivered by the seller does not conform to the agreement,if the buyer and seller have no agreement on the liability for breach of contract or the agreement is unclear,the buyer can reasonably choose to require the seller to bear the liability for breach of contract such as repair,replacement,return of goods,reduction of price,etc.However,in addition to this general enumeration of entitlement,the law does not clarify the relationship between the various means of relief and their sequence of application,and does not provide any effective guidance or make any substantive restrictions on the buyer’s "reasonable choice ".Such disorder and arbitrariness not only do not provide the right guidance to the buyer,but also tend to encourage the buyer’s speculation,which damage the seller’s reasonable remedy benefit.Based on the neutrality of the court,it plays a limited role in guiding the parties to choose the means of relief reasonably,and because of the lack of the provisions of positive law,the court has a large discretion in judicial practice,so it is difficult to resolve the problem such as the imbalance of interests caused by the defects of the existing system.Based on the demand of judicial practice and civil and commercial transaction practice,as well as the demand of the internal balance of the legal system and the realization of the value of the relief system for defective performance,it is necessary to improve the stratified relief system for defective performance in accordance with the national conditions of our country.The first chapter analyzes the main problems and research status of the relief system for defective performance under the current law from the perspective of existing legal provisions and theoretical research,clarifies the significance of the research content and summarizes the development trend of the relief system for defective performance.The second chapter first analyzes the problems in judicial practice under the background that the means of relief for defective performance are not in clear sequence.On this basis,the author makes an in-depth analysis on the nature of those means of relief and their application in judicial practice,and clarifies the relationship and the proper application sequence between those means of relief:repair,replacement and other relief means with the nature of continuing performance should have its priority applicability;in contrast,other relief means such as price reduction,return of goods,cancellation of contracts should have inferior applicability.The third chapter discusses the necessity and significance of improving the stratified relief system for defective performance,and then analyzes and compares the relevant legal system in foreign countries,in order to explore the advanced experience which is beneficial to improve the stratified relief system for defective performance of our country.The fourth chapter puts forward the concrete consummation suggestion for the stratified relief system for defective performance of our country,combined with our specific national conditions and the existing legal system,analyzes the stratified relief system of German law has more referential significance.More specifically,through the system of the buyer specifies for the seller a period of re-performance,to give the seller the opportunity to re-perform through the means of repair or replacement,so as to better realize the balance of interests between the seller and the buyer,more in line with the needs of our existing legal system.In addition to the principle provisions of the stratified relief system,some special circumstances may affect the application of those means of relief,such as the nature of subject matter and the types of defects,the transaction habits and the realization of the purpose of the contract,the difference of contracting ability between the buyer and seller,etc.