Research On Contract Of Paying The Debt By A Thing

Based on different contexts,there exist two different kinds of understanding about "object" and "debt" in the contract of paying the debt by a thing in the judicial practice as well as I n theoretical discussions.This paper advocates defining the contract of debt repayment from the abstract perspective.The contract of paying the debt by a thing should be defined as the contract by which the creditor makes the direct receipt of the debtor’s alternative payment and consequently the old debt can be discharge.In order to accurately grasp the definition of contract of substitute for paying,it is necessary to clarify the following 10 aspects of the problem: firstly,the contract of substitute for paying is not equivalent to the substitute for paying Loan;secondly,the contract of paying the debt by a thing can not simply be equated with datio in solutum;thirdly,the substitute settlement contract and the substitute settlement appointment belong to the scope of the contract of paying the debt by a thing-loan;fourthly the contract of paying the debt by a thing does not constitute a change of contract;fifthly,the establishment of the contract of paying the debt by a thing does not constitute a alternative obligation.Sixthly the contract for the debt of the object does not necessarily constitute an voluntary obligation.Seventhly the contract of paying the debt by a thing is not a dispute settlement.Eighthly,the contract of paying the debt by a thing is not equivalent to contractual set-off.Ninthly the contract of paying the debt by a thing is not equivalent to the contract paid for the settlement.And finally the new debt liquidation agreement and the novation of debts agreement are essentially contract of paying the debt by a thing.Considering that the types of debt-servicing contracts are various,this paper only enumerates and analyzes the contract of paying the debt by a thing out of judicial proceedings and in the judicial proceedings,the contract of substitute for paying of the debtor’s fulfillment and the third party’s fulfillment,the type of fulfillment by the debtor’s property and the fulfillment by the behavior of the debtor,A single alternative to the contract of substitute for paying and multiple alternatives to the contract of substitute for paying,the conditional contract of paying the debt by a thing and the Untied contract of substitute for paying,the full payment of the contract of paying the debt by a thing and part of the payment type of the contract of substitute for paying,with the liquidation clause of the contract of paying the debt by a thing and does not include the liquidation clause of the contract of paying the debt by a thing loan.The nature of the contract of paying the debt by a thing should be the consensual contract,the colorless contract,the unilateral contract,the abstract contract,and the unnamed mixed contract.The contract of paying the debt by a thing has special requirements of establishment different from other contracts: First,there should exist legal old debts;Second,the acceptance of an alternative payment can eliminate the old debt.As far as the special form of the trading-based guarantee is concerned,in the judicial practice and theoretical discussion,there are four main points of view on its nature: the real right guarantee theory,the single contract theory,the contract guarantee theory and the simultaneous joint contract statement theory.However,the real right guarantee theory,the contract guarantee theory and the simultaneous joint contract statement are all lacking in jurisprudence.Through the interpretation of expression of intention,it can be known that in the legal relationship of the trading-based guarantee,the latter contract changes the non-elemental content of the previous contract,so that the previous and later contracts become one,which essentially constitutes a special contract of paying the debt by a thing.After the establishment of the contract of paying the debt by a thing,whether it is signed between the debtor and the creditor,or signed between the creditor and the third party,the limitation of action of the old debt is interpreted as the suspension of the establishment of the contract of paying the debt by a thing.Before the establishment of the contract of paying the debt by a thing,when the limitation of action for the old debts has expired,the legal effect of the interruption of the limitation of action of the old debts should be re-calculated because of the establishment of the contract of paying the debt by a thing.The mere basis of the danger of unbalanced interests between the parties can not directly constitute the reasons for the conditional contract of paying the debt by a thing for violation of the public order good or immigration ban.The purpose of entering into an contract of paying the debt by a thing actually expands the real meaning of old debt.The creditor and the debtor enter into a contract of paying the debt by a thing,and the replacement payment of the old debt with a comparable price is not constitutive and can be revoked.As for whether the debtor of the contract of paying the debt by a thing should bear the liability for warrant of defect,Germany opinions are split by the negative and the affirmative ones.The negative says that the debtor should not bear the liability for warrant of defect;the affirmative believes that the debtor should assumes the liability for warranty against defect,but the theoretical basis of the liability for warranty against defect can be divided into three different viewpoints: similar trading theory,special debt change contract theory and discharging contract.This article criticizes the negative viewpoints and the viewpoints of similar sales and claims and the special debt change contract in the affirmative viewpoints,and therefore advocates the adoption of the viewpoints of discharging contract.When the parties to the contract of paying the debt by a thing have not ruled out the application of the liability for warrant of defect,the contract law should be applied to the contract of sale,the gift contract,the lease contract,and the contract of hired work based on the nature of the old debt and the specific content of the alternative payment.When the debtor violates the contract of paying the debt by a thing,the creditor is not only able to bear the liability for breach of contract in accordance with the old debt,but also has the right to demand that the debtor bear the liability for breach of contract for breach of contract of paying the debt by a thing.Only when the debtor defaults meets the conditions for the rescission of the contract,the creditor has the right to choose between the debtor’s liability for breach of contract or to claim the old debt.When the debtor simultaneously violates the old and new debts,the creditor can only choose to request the debtor to bear the liability for breach of contract.In the interpretation of the meaning of whether the parties have the willingness to update,the strict position of interpretation should be followed.When the parties have no clear willingness to update,it should be interpreted that the old and new ones coexist.In judging whether the parties have a clear willingness to update,the method of compatibility between the old and new payments should be given priority by using other methods to explain the meaning.In the case that the parties have no special agreement on the order of performance of the old payment and the alternative payment,it should be interpreted that after the establishment of the contract of paying the debt by a thing,the old payment is temporarily suspended,and the creditor should first perform the replacement payment request,and the debtor should first perform the alternative payment.Both the creditor and the debtor do not have the right to exercise the choice between the old and the new.In the clear meaning of the exemption of the defense of the old debts in contract of paying the debt by a thing,the meaning of the parties should be interpreted as the agreement between the parties to form the defense right in the old debts in the contract for the debts.When the parties fail to clarify the liquidation in the contract for the settlement of assets,contract of paying the debt by a thing concluded after the expiration of the old debt performance period shall be interpreted as the right of the party to waive the request for liquidation;and for the conditional contract of paying the debt by a thing for the debt of the old debt belonging to the borrowing debt,it should be interpreted that the parties have the right to claim liquidation.When the contract of paying the debt by a thing is established,if the parties do not agree on whether the old debt delaying performance of the obligation still exists,it should be interpreted as: the old debt delay liability occurrs before the establishment of the contract of paying the debt by a thing,and it is not eliminated due to the establishment of contract of paying the debt by a thing.Before the settlement of the contract of paying the debt by a thing is reached,the debtor does not delay the performance of the old debt.When it is necessary to analogize the arbitrariness of a famous contract to fill the loopholes in the contract of paying the debt by a thing,Article 124 of the Contract Law should be applied preferentially instead of Article 174,and whether the old debt is paid and the alternative payment form is judged as similarity.The standard,analogy applies to the most similar to the contract for the debt of goods,not the contract of sale.