Research On The Priority Of Cure In Detective Performance Of Sales Contract

Article 617 of the Civil Code invokes article 582 to grant the buyer the right to demand the seller to assume its breach of contract by curing(i.e.repairing,exchanging,reworking or returning the relevant items),or by reducing the price charged or the remuneration received,etc.However,the choice in which these rights are exercised is restricted only by "thoughtful",which has caused many theoretical and practical disputes on how to prevent buyers from abusing their rights.In comparative law,the order in which the buyer exercises his rights is restricted by the system of the grace period for cure or the seller’s remedy rights,and the priority status is given to the cure.Some scholars in our country’s theoretical circles advocate that the priority of cure,and that fulfilling the right of cure is the pre-procedure of fulfilling other remedy rights for breach of contract.This paper takes the cure as the core,and aims to clarify the applicable relationship between the cure and the rights to breach of contract relief,such as dissolution,reduction in price and compensation for damage.Most of the opinions supporting the priority of cure fulfilled the unified argument that the priority of cure preceded dissolution,reduction in price and compensation for damage.But the latter three are different rights of breach of contract relief,the system function and the establishment of the basis are different.If there is no distinction between the case-type unified argument,inevitably,there is insufficient argument.This leads to the core part of this article,the specific clarification of the priority sequence of the right to cure.Through a one-to-one comparison,it is demonstrated that the cure has priority over dissolution,reduction in price and compensation for damage.In the comparison between the cure and dissolution,through the examination of comparative law,it is a prerequisite to solve the relationship between these two remedy rights to clarify the definition of the right to terminate a contract.By distinguishing between the two cases of contract termination that cannot be achieved for the purpose of contract and termination of contract at the end of the grace period,it is clear that the essence of the priority of cure is to determine the boundary of the seller’s remedy rights and interests.When such boundary is exceeded,the seller’s right to remedy is no longer given priority,and the interests of the buyer should be protected,which is an restriction to the priority of cure.In the comparison between the cure and the reduction of price,the current theory can easily fall into the misunderstanding of the German legal model,that is,the dispute over whether the right to reduce the price is the nature of the right of formation.However,the controversy of this nature is of little significance in the context of our country’s law.It is reasonable to clarify the priority of cure over price reduction by means of benefit measurement that such priority is in line with the interests of both parties,but the premise is that the cure should enable the buyer to obtain flawless payment.In the comparison between the cure and compensation for damage,by distinguishing the types of damages,it is clear that the object of the sub-position comparison is limited to compensatory damages.In this context,the priority given to the cure is in line with the position of Article 22 of the Interpretation of The Contract of Sale and Purchase,and maintains the coordination of the system.The last part of this paper is based on the establishment of the priority of cure,and the restriction to the priority of cure is discussed in view of the need of the balance of interests of the parties.As the related theories lack of a distinction between the concept of the restrictions to priority of cure and the pre-discussion case type,it is a mistake to include the exclusion of the buyer’s right to cure.In order to avoid the situation of protecting the seller’s remedy rights and interests and being unduly disadvantaged to the buyer,the restriction to priority of cure may include the circumstances of delay,inconvenience,failure of cure and loss of meaning to the buyer,etc.