The Right To Cure In Detective Performance Of Sales Contract

This paper takes the right to cure in detective performance as research object.The purpose is to clarify the relationship between “the right to cure” and the “specific performance”,which is stipulated in the Contract Law of China,in order to grasp the essence of the right to cure.Specific performance can't be simply equated with“enforced performance”;The right to cure is also not a subordinate concept of specific performance.It should be regarded as an independent way of remedy for contract breaching.Specific performance corresponds to original obligation;While the right to cure corresponds to the special changing forms of original obligation,but it is also different from the secondary rights such as compensating for losses,termination of contract,price-reduction and so on.This difference leads to the core part of this paper – the right to cure has the priority sequence in application compared with the secondary rights.Using the interpretation methods in dogmatics of law such as teleological interpretation and systematic interpretation,this paper demonstrates that the right to cure should have the priority sequence in application compared with compensating for losses,termination of contract,price-reduction.The last part of this paper choses an angle that is ignored by the academia ofChina;and demonstrated one of the cases that the right to cure didn't have the priority sequence – self-repair of the buyer.This case has not been paid much attention by the academia.And no agreement has been reached on this case in judicial practice.Even if the Supreme Court has issued a judicial interpretation(Interpretation of the Supreme People's Court on Issues Concerning the Application of Law for the Trial of Cases of Disputes over Sales Contracts,Article 22),which stipulates this problem.But in practice,this right of claim is often ignored.It is not clear by the German academia whether the buyer can ask the seller to repay the cost of buyer's self-repair or not,and what is the nature of this right of claim.Chinese academia rarely mentioned this issue.So it is necessary to discuss it in detail.