The Research Of The Concurrence Of Defect Warranty Liability In The Sales Law And Contracting Fault Liability

Defect warranty liability system is a distinctive system,it is indecisiveness that the relationship between the defect warranty liability and the general liability for breach of contract is special or parallel.This thesis studies two different international legislation patterns,which are the parallel model and the integrant model.The parallel model originated from the Roman law,and was adopted and developed by the Germany law.At 2002,the Germany law changed from the parallel model to the integrant model.The international laws such as United Nations Convention on Contracts for the International Sale of Goods(aka “CISG”)also adopted integrant model.Through studying all laws above and by analyzing our current contract law system in China,this thesis comes to the conclusion that China adopted and should continue to hold the integrant model.Defect warranty liability overlaps with Contracting fault liability,Gross misunderstanding and Fraud.In legal practice,neither the plaintiffs in the lawsuit claims,nor the defendants in the defenses,nor even the courts in the judgments,are concerned about these differences,and even mixed them up wrongfully,resulting in unclear focus of dispute,wrongful applications of laws.Theoretical and practical researches on the overlapping of defect warranty liability with other legal rules are scattered and not systematic in China.On the contrary,we turn our eyes to foreign laws such as German Civil Code and GISG,they have relatively detailed discussionson these issues,which are of great significance to the perfection of the defect warranty liability system in China.Therefore,we need to systematically study the overlapping between defect warranty liability and other legal rules,clarify the boundaries between them,and make the legal interpretation and legal application reasonable and legitimate.Therefore,through studying different theories and cases,this thesis concludes that in China,when defect warranty liability overlaps with the contracting fault liability,gross misunderstanding,the buyer can freely choose remedy methods by his own interests.However,when it comes to the fraud in the consumer contract disputes,in order to obtain the most comprehensive relief,the buyer should claim the defect warranty liability as well as punitive damages for the fraud.This thesis is divided into three parts.The first part is an overview of the defect warranty liability system.With the development of modern obligation law,the relationship between the defect warranty liability and the general liability for breach of contract has changed.In order to define the position of the defect warranty liability in the liability system,this part analyzes the existing theories from the perspective of the comparative laws and the history of the defect warranty liability.Next,this part analyzes the constitutive elements of the defect warranty liability,the concept and scope of "defect",the classification and identification criteria of defects,and then,discusses various ways of bearing the defect warranty liability and their application sequence.At the same time,this part puts forward some suggestions for the perfection of defect warranty liability system.The systematic analysis of defect warranty liability system in the first part lays a good theoretical foundation for the following researches of the concurrence of defect warranty liability in the sales law and contracting fault liability.The second part discusses the possibility of the overlapping between the defect warranty liability and the contracting fault liability,and then discusses the situations of excluding the possibility of the overlapping.Through analyzing the differences between the defect warranty liability and the contracting fault liability in the aspects of different obligations,different relief methods and relief scope,this part is to prove the necessity of distinguishing the defect warranty liability from the contracting faultliability.Finally,the part discusses how the parties should choose the claim basis.The third part is to sort out the existing researches,and to point out that the overlapping between the defect warranty liability and the contracting fault liability is not well discussed,then try to clarify the selection of the legal rules and claim basis under different circumstances by analyzing cases and the court verdicts.