Research On The Defective Performance Of Sales Contract

In the sales contract,when the seller' s defective performance occurs,the performance is inconsistent with the contract agreement,in order to protect the realization of the buyer' s contract performance interests,and fill in the buyer' s damage caused by the seller' s breach of contract,articles 107 and 111 of the contract law of China stipulate several kinds of breach of contract,such as repair,replacement,reduction of price,termination of the contract,etc The remedy method is for the buyer to choose and ask the seller to correct the defect.Although our country provides the buyer with the system of compensation for the performance of defects to ensure the realization of the buyer' s performance interests when the seller makes the performance of defects,but due to the current legal provisions are not detailed enough,the academic views are not unified,and there may be some disputes and problems in practice.First of all,from the perspective of the protection of the buyer' s interests in the performance of the contract,China will choose what kind of remedy for breach of contract to give the buyer the right of choice to correct defects,that is,to adopt the buyer' s right of choice mode.As for the buyer' s right of choice,the contract law only sets'reasonable choice" as its exercise criterion,but there are different opinions in the academic circles on the boundary and standard of"reasonable".As far as the nature of the buyer' s right of choice is concerned,most scholars in our country think that it should be defined as the right of choice in the debt of choice,and the most direct legal effect brought by such determination is its right of formation attribute.According to the general theory of our country,the right of choice of the debt of choice belongs to the type of right of formation in terms of the function of right,but the right of formation has its unique characteristics of exercise.It only needs one party to express its will,and it can take effect without the cooperation of the other party.In view of its strong effect,it needs to be restricted in the process of exercise,that is,,once exercised by one party,it will take legal effect,not by the will of the other party The indication shall not be changed or withdrawn".Therefore,if the buyer' s right of choice is defined as the right of choice in the debt of choice,it has the nature of forming right.The biggest obstacle to the realization of the buyer' s contract performance interest lies in that once the buyer makes a choice,it cannot be changed or withdrawn.The immutability or withdrawal of the right of choice is conducive to clarifying the rights and obligations relationship between the buyer and the seller as early as possible,and avoiding the seller' s dilemma of indeterminable performance content for a long time due to the buyer' s hesitation or arbitrary change;however,on the other hand,the buyer is only allowed to make one choice,which can not be changed or withdrawn after selection,which provides the buyer with a variety of defects with the contract law It is against the original intention to guarantee the realization of contract performance benefits by means of defect correction.As for the seller' s ability to perform the contract and the resulting future trend of the contract,the buyer can not fully and accurately judge,making inappropriate choices can not only guarantee the realization of the buyer' s contract performance interests,but also may add unnecessary burden to the seller in some cases.Therefore,it is necessary to provide the buyer with "the right of second choice" under certain circumstances,allowing the buyer to change its prior choice under certain reasonable circumstances,which also complements the "reasonable choice" in the contract law and the purpose of safeguarding the interests of contract performance.Secondly,from the perspective of the seller' s interest protection,the buyer is allowed to have the right to choose what kind of defect correction method,and further,the buyer is allowed to have the right to change the first choice within a reasonable limit;in order to prevent the abuse of the buyer' s rights from increasing the seller' s excessive burden,the seller should also be equipped with corresponding rights to protect the seller' s interests Benefit,that is.the seller' s right to refuse the buyer' s actual performance of the claim,hereinafter referred to as the seller' s right to refuse.According to the provisions of Article 110 of the contract law of China,in three legal situations,the seller has the right to refuse the non monetary debt in the face of the buyer' s actual performance request:first,the seller is unable to perform in law or in fact;second,the object of the debt is not suitable for compulsory performance or the cost of performance is too high;third,the creditor does not ask for it within a reasonable period of time Seek fulfillment.From the causes of these three legal situations,the legal or actual performance can' t and the object of the debt is not suitable for compulsory performance or the cost of performance is too high.The two kinds of refusal reasons are based on the performance obstacles of the debt to be performed itself;and the creditor' s failure to require performance within a reasonable period of time is based on the creditor' s delay in exercising the right.Therefore,this paper will analyze the seller' s right of refusal from two aspects:the impossibility of performance and the high cost of performance.Thirdly,it studies and analyzes the ways of defect correction.As mentioned above,the contract law provides the buyer with several ways of defect correction for selection,while the choice is limited and regulated only by"reasonable choice".The following question is,when the buyer chooses the ways of defect correction,is there any restriction on the applicable order among these ways of defect correction?That is,whether there is the priority of correction.In this regard,there is no final conclusion in the academic circle of our country.Taking the repair and replacement with high application frequency in practice as an example,according to the provisions of Article 111 of the contract law,repair and replacement are two parallel ways of defect correction,and there is no obvious order representation from the article itself.But according to the consumer rights and interests protection law and the "Three Guarantees service provisions" of the goods,generally speaking,the repair claim should take precedence over the exercise of the replacement claim,and can only be replaced under specific circumstances,such as the situation that the repair takes too long,or the defect can not be corrected after two repairs within the warranty period.Such a provision seems to be for the benefit of the seller to reduce the burden of the seller by the way that repair takes precedence over replacement,but the realization of this purpose should at least meet the following two preconditions:first,repair can achieve the purpose of correcting defects;second,the cost paid by the seller to repair and correct defects is lower than replacement.After meeting the two premises,repair takes precedence over replacement,which can reduce the setter' s burden and prevent the abuse of the buyer' s rights.However,in practice,there are many cases where the cost of repair is much higher than that of replacement.It is not appropriate to set the applicable Order in advance at the system level.Finally,this paper will analyze and study the buyer' s right of self repair.Generally speaking,the seller should be responsible for the repair and replacement of the defective property.Whether the buyer is allowed to have the right of self repair under certain circumstances is also controversial in practice.Although the current contract law of our country has not made a clear statement on this issue,its tendentious opinion can be seen from Article 22 of the judicial interpretation of sales contract issued by the Supreme People' s court,"repair responsibility,as a monetary alternative,should have certain exercise conditions,not be arbitrarily done by the buyer,so as to avoid the abuse of the buyer' s rights damaging the seller' s interests".According to the foregoing provisions,it can be concluded that in general,the buyer does not have the right to repair itself or request the third party to repair without special statutory reasons.To say the least,even if the buyer implements the repair through the above-mentioned means,the expenses incurred shall not be borne by the seller.Therefore,the Supreme People' s court holds that,in principle,the buyer shall not Recognizing the buyer's right of self repair.No matter from the ownership of the right of the defective property,or from the buyer' s obligation to prevent the damage from expanding stipulated in the contract law,and from the perspective of the principle of good faith,the author believes that the buyer's right to repair itself should not be restricted.In some cases,the buyer may be altowed to repair the defective property by himself,which may be more in line with the consideration of economic benefits and may not be unfavorable to the seller.The provisions of the Supreme People' s court may refer to the German civil taw to some extent,but it should be noted that the German civil taw system stipulates that the seller has the right to secondary supply.In other words,the buyer' s self repair will cause the seller to lose the space to exercise the right to secondary supply.However,there are no relevant provisions in China' s contract law system,and there is no corresponding system,so the buyer' s right of self repair is not recognized,and its rationality remains to be verified.