The Nature And Effectiveness Of Paying The Debt By A Thing

Paying the debt by a thing is an innominate contract,which is an alternative method of debt performance reached by the parties on the basis of agreement in practice and is one of the reasons to eliminate the debt by way of substitute payments.In determining the nature of paying the debt by a thing,we should first start from the freedom of contract and autonomy of will,and accurately define the composition of datio in solutum,new debt repayment or debt change according to the agreement of the parties.When the agreement is unclear or there is no stipulation in the agreement,it should be recognized as a new debt repayment,the new debt and the old debt coexist.In the order of performance,neither the creditor nor the debtor has the right to choose.But based on the principle of good faith,the creditor should first exercise the right to claim new debt.When the debtor has multiple creditors,it only enters into an agreement with some of the creditors to pay the debt by a thing,but as long as the old and new payments are of equal value,other non-participating creditors cannot exercise the right of revocation.When paying the debt by a thing is discharged,the restoration should include the resurrection of the old debt and interest.Whether security right is resurrected or not should distinguish the different situation.The court’s ruling on paying the debt by a thing made in the execution procedure is different from the one described in this article.The former can directly lead to changes in property rights,while the latter can not directly lead to changes in property rights,which requires the completion of the delivery of movable property and the completion of the transfer registration of real estate to achieve the legal effect of liquidation.