The Legal Relations Of The Retention Of The Title Contract

After a long history of development, the retention of title system has beeninjected with new vitality in modern society with its increasing development ofcommodity economy and growing popularity of installment plan in consumer market.Foreign countries have a century of history in applying this system. However, theprovisions of this system is still relatively lacking in our country. The latest JudicialInterpretation of the Contract for Sales which was issued in2012had accepted thetheory of foreign countries and sorted out the system. But due to the special status ofrights in the retention of title, it is easy to generate some conflicts with the securityinterests, as well as the rights of bona fide of third parties. The paper is about20,000words and can be divided into five chapters, trying to sort out the internal and externallegal relations of the system and have some reference to the routine transactions.The first chapter introduces the concept of the retention of title as well as itsspecial functions in transaction. At the same time, it introduces the system in civil lawand common law countries, and sketches out the broad outlines of the system.The second chapter introduces the understanding of the doctrine about the natureof the system. In this paper, it is believed that its nature should be viewed from theexternal form and the internal essence. From the external form, it is a transfer ofownership with suspended conditions. While from internal essence, it is a guaranteeof title. The formation of the system is different in the theory of juristical act of realright and creditor formalism which our mainland claims. The third chapter briefly introduces the establishment of the retention of title intransaction. It should be clearly expressed in the contract that the object of the contactis limited to personal property, not including real property. Meanwhile, the paperanalyzes the forms of its publicity, and the author agrees the opinion that theregistration antagonism is most suitable in its publicity, so as to balance betweensufficient publicity and transaction convenience.The fourth chapter analyzes the internal legal relations of the retention of title.From the perspective of buyers and sellers, the paper focuses on the premise, methodsand the legal effects of exercising the recall rights. The expectant right of the buyer isa kind of special rights and it can be transferred according to the law. When thecondition is fulfilled, the third party obtains the ownership of the object directly fromthe seller. The third section introduces the mode of risk-bearing between the buyerand the seller. The doctrine of risk control is adopted in the paper.Chapter Five is about the external legal relations of the retention of title,including the situations of transferring the object and setting the security interests onthe subject by the buyer or the seller. The situation of infraction by a third party is alsoincluded. When the object is infracted by a third party, he is responsible to both thebuyer and the seller which is called indivisible debts.