Research On The Recall Right Of The Seller In The Retention Of Title

According to the "Contract Law","Interpretation of the Supreme People's Court on Issues Concerning the Application of Law for the Trial of Cases of Disputes over Sales Contracts" and the whole legal system of civil law,This paper is focus on the recall right in the retention of title system.This paper sums up the legislation of Germany,the United States,France and China's Taiwan region,and summarize the viewpoints of experts and scholars on this topic.This paper discusses the nature of the retention of title,analyzes the nature of the recall right,the relationship between the recall right and the right of rescission,explains the relationship between the recall right,the redemption right and re-sell system,the relationship between the recall right and bona fide acquisition system.This paper is mainly divided into four parts.In the first part,the meaning of the retention of title and the recall right is defined.There are four theories trying to explain the retention of title,such as conditional transfer of ownership,partly transfer of ownership,lien,real rights guaranteed.By analyzing the above doctrines,I hold the view that the ownership retention system is reserved for the seller to delay the transfer of the title to guarantee that all of the purchase price of the contract will be paid off,which different from the security interests lies in the debtor and the third person.There is a double legal relationship in the retention of title,the first is a sale contract relationship with a stop condition,and the second is a guarantee agreement.The recall right has several meanings in our legal system.First,it means the right to ask the buyer to return the original when the contract is invalid,revoked.Second,it means the right to ask the buyer to return theoriginal when the contract is dissolved that the two sides bear the obligation to restore the original.Third,it also refers to the right of the owner to ask the unauthorized occupant to return the original.Besides,it means the right of seller to recall the goods,according to the contract or "the sale of the contract judicial interpretation".The second part,this paper analyzes the mainstream theory of the nature of the recall right in the retention of ownership.There are mainly four theories,include dissolution of contract,conditional dissolve,counterargument right for simultaneous performance and claim for compensation at the object.After the analysis,this paper acknowledges that the recall right has independent value,and it is different from the right of discharge,in terms of exercising conditions,the purpose of exercise and the legal effect after exercising.The exercise of the recall right does not means discharge the contract.The theories of dissolution of contract and conditional dissolve can not really reveal the nature of the recall right.The recall right is the security right of the seller.By exercising the recall right,the seller can recover the price,not just counterargument.Counterargument right for simultaneous performance,is just a passive defense,and can not explain why the seller exercise the recall right.The seller exercise the security right to bring back the goods,then sell the goods.The seller has the priority right to this price,in order to cover the purchase price.The third part analyzes the exercise of the recall right and its legal effect.The seller can exercise the recall right on the premise that the contract is still valid.The seller may exercise the recall right under the circumstances specified in the agreement or the " Interpretation of the Supreme People's Court on Issues Concerning the Application of Law for the Trial of Cases of Disputes over Sales Contracts ".When the buyer did not pay the price and the unpaid price reached one-fifth of the total price as specified in the "Contract Law" Article 167,The seller can exercise the recall right.The exercising of the right has a significant impact on the interests of the buyer.When the buyer had paid 75% of the price,the seller can not exercise the recall right.The exercise of the recall right requires pre-notice.The seller can exercise the recall right by requesting the buyer to return the object or file a lawsuit.Under our legal system,the seller is not obliged to give the buyer a redemption period.The seller candirectly re-sell the goods,and then has priority right to the price for compensation.When the recall right is exercised,the contract still exist.If there is any shortage,the seller may request the buyer to continue to pay the price in accordance with the contract and bear the liability for breach of contract.The fourth part introduces the recall right and the bona fide acquisition system.At present,China has not yet established a publicity system for ownership retention,it is still in a state of concealment,the third person is difficult to know the real rights attribution.To determine whether the third person obtain the subject matter of goodwill or not,we should consider the price of the transaction,trading location,trading habits.When the third person is in good faith,the seller lost the recall right,can only require the buyer for compensation.Although the seller can not take back the goods,but we should recognize that the seller still has the priority right to the re-sell price.