The Research Of The Contract Of Paying The Debt By A Thing

The contract of paying the debt by a thing is common in our judicial practice,but recently there arise some disputes about it.This article is written from four aspects of the nature of the contract,the validity of the contract, legal nexus and remedies for breach of contract in order to solve the problem of the appliance for this contract.Part?:The summary of paying the debt by a thing.Firstly paying the debt by a thing is a kind of civil act which clear off debts with substituted performance.It require the agreement of the parties,so in essence these acts belong to contract.Secondly,the contract of paying the debt by a thing in the continental law system.The contract of paying the debt by a thing is innominate contract in China.The reference of the practice and academic research is the institution of the continental law system which constituted by datio in solutum and leistungerfüllungshalber.Thirdly, the obstacle of application of the contract of paying the debt by a thing in China.There are a lot of disputes when our academics and judicial practice borrow the theory from continental law system,which cause confusion on the understanding,setup some obstacles in the application of the contract of paying the debt by a thing.Part?:The choice between real contract and consensual contract for the contract of paying the debt by a thing.Firstly,the debate on the abolishment of real contract.As entering the age of autonomy of the will,the justice of real contract arise much controversy,the views of abolishing or reforming real contract occupy the mainstream.Secondly,the origin and significance of datio in solutum as a kind of real contract.Initially,in order to differ from contract of sale,datio in solutum was design as a kind of real contract.However,this historical origins have disappeared.Thirdly,analysis and review of datio in solutum as a kind of real contract.The traditional function of the real contract is meaningless to datio in solutum,it would be better to abandon the identity of real contract than to try kinds of hypocritical transformation.Therefore as a kind of innominate contract,the contract of paying the debt by a thing don't need to be real contract.Part?: The contract of paying the debt by a thing and the prohibition of liquid mortgage.Firstly,many scholars especially some who deal with judicial practice consider the contract of paying the debt by a thing concluded before the date of payment as liquid mortgage.Secondly,some scholars believe that the prohibition of liquid mortgage should be abolished. The contract of paying the debt by a thing can exclude the prohibition of liquid mortgage by the restrictive interpretation of the scope of application of this prohibition in law in force or distinguishing one and the other.Thirdly,no matter what the contract structure which the parties chose,as long as the effect is same as liquid mortgage, the contract of paying the debt by a thing will violate the prohibition.Part?:Explanation of the agreement of paying the debt by a thing.Firstly,the possible relation between substituted performance and original performance.The contract of paying the debt by a thing before execute involves the growth and decline or coexistence relationship between substituted performance and original performance.Focus on the core features of the contract of paying the debt by a thing,we can find there may be four relations as novation of obligation,modification of obligation,leistungerfüllungshalber and voluntary obligation as the agreement of paying the debt by a thing.Secondly,canons of construction for the agreement of paying the debt by a thing firstly should explore the real meaning of the parties in the contract.Setup the supplemental means of interpretation by comparing the state of interest under the four kinds of relationship between the parties,when there are gaps in the contract.Part?:Remedy of defects in substituted performance.Firstly,the liability for warrant of defects of onerous contract.The mainstream of the academics believe the liability for warrant of defects of onerous contract can be use to deal with the defects in substituted performance,but there have contradiction when deal with gratuitous contract which pay off by substituted performance.So it should not extend to a single means of relief. Secondly,whether to revive original performance.If the contract of paying the debt by a thing act as the general modification of obligation,then after modification,even if there is defect in substituted performance,the parties can only cancel the contract modified.However,the purpose of the contract of paying the debt by a thing is to clear off debts,so the contract will not extinguish before the fulfilment of its purpose,so the creditor can revive the claim for the original performance by cancel the contract of paying the debt by a thing.Thirdly,classification of remedy of defects in substituted performance.When the the contract of paying the debt by a thing cause modification,differ the original contract is onerous or gratuitous,correspondingly apply onerous or gratuitous liability for warrant of defects,when refer to leistungerfüllungshalber, the debtor is not committed himself with liability for warrant of defects,the creditor can seek for original performance.