The Discussion On The Datio In Solutum

Datio in solutum is a system of civil law of the mainland,China ’s legislation has no explicit provisions on datio in solutum,but in judicial practice,the courts often use the theory of datio in solutum as the basis for adjudication of the effectiveness of the contract of paying the debt by a thing.The problem is that the academic circles do not form a unified understanding of the nature and effectiveness of datio in solutum,and often confuse datio in solutum with similar systems,which leads to confusion in defining the effectiveness of the contract of paying the debt by a thing,affects the interests of the parties.This article intends to discuss the legal issues related to the datio in solutum,with a view to providing reference rules for judicial decisions.There are four chapters in this article,the main contents are as follows:The first chapter defines the nature of datio in solutum.Repayment is a factual act,datio in solutum is a legal act.The nature of datio in solutum not repayment,but contract.Under the unified premise of datio in solutum,we should pay attention to the multi-dimensional definition of the nature of datio in solutum: datio in solutum is neither a paid contract nor a gratuitous contract,it should be a real contract,a special debt modification contract.Real contract is to solve the problem of when the datio in solutum is established and why the original debt is eliminated;In the case of the debtor paying for the substitute,the special debt change contract can fully answer when the datio in solutum is established,and can also provide a complete solution to defects in other types of payments.The second chapter discusses the effectiveness of the agreement on datio in solutum and how to determine the agreement on datio in solutum.The datio in solutum appointment is a specific concept in Japanese civil law,which is not the same concept as the agreement on datio in solutum;Some views hold that the agreement on datio in solutum is a liquidity(pledge)contract or an arbitrary debt that the debtor has the right to substitute,but this article considers that these views need to be discussed;The agreement on datio in solutum should be effective,it should produce the effectiveness of changing the target of the debt,which is a debt change that does not change the identity of the relationship of the debt.There are two main differences between agreement on datio in solutum and the agreement on payment for the purpose of discharge: one is whether the proposal of other kinds of payment means the elimination of the original debt,and the other is whether the creditor has the obligation to sell off the other kind of payment;The main difference between the changes in the consensus and the agreement on datio in solutum is whether the guarantee and defense of the original debt are eliminated;Whether the agreement reached between the parties to replace the original payment with other types of payments is an agreement on datio in solutum,it should be determined according to the above criteria and the parties ’wishes.The third chapter discusses the issue of responsibility in the performance of datio in solutum.First,it clarifies the responsibility when the datio in solutum does not take effect,including two cases: one is that the original debt is not effective,the other is that datio in solutum itself is not effective,in any case,the debtor can request the original return,or the debtor can accord to unjust enrichment rules to demand return other kinds of payments.Secondly,when there is a flaw in his payment,the debtor should bear the responsibility for the flaw guarantee according to the nature of the original debt;If the flaw is not minor,the creditor can also advocate the rescission of the datio in solutum contract and request the debtor to repay the original debt.Finally,in the case of third-party settlement,it is necessary to combine the third party ’s intention in a specific case to determine the responsibility.Should be liable in accordance with the rules of third-party liquidation,or in accordance with third-party guarantees.The fourth chapter discusses the issues related to the datio in solutum and the settlement of debts with objects.First of all,it summarizes the unclear understanding of the relationship between datio in solutum and the settlement of debts with objects in judicial status,and clearly points out that datio in solutum should be the subordinate concept of the settlement of debts with objects,and the legal principle of datio in solutum cannot be used as the basis of judgment in all cases of the settlement of debts with objects.Secondly,it discusses the typical type of the settlement of debts with objects,a guarantee-type sales contract,and analyzes the irrationalities of some existing views,such as consider the guarantee-type sales contract as providing guarantees of the nature of property rights,or consider it as providing contract guarantees and so on,on this basis,put forward the opinions of this article: a guarantee-type sales contract should be defined as an agreement on datio in solutum with effective conditions.