Research On The Seller's Remedy In Aulid Performance

An aulid performance is a special situation that may occur in transactions.The seller's performance does not match the type and attributes of the contract's subject matter,which will constitute an aulid performance.Since China does not explicitly stipulate the nature of aulid performance,there are two views on the nature of aulid performance,namely,the theory of non-performance of contracts and the performance of defects.Article 434,paragraph 3,of the new German Civil Code clearly stipulates that the seller supply a different thing or a lesser amount of the thing is equivalent to a material defect,clarifies the nature of foreign object performances,and provides a reference for solving the nature of foreign object performances in China.Under China's legal system,the right to claim for the remedy of defects provided for in Article 111 of the Contract Law often exists as the buyer's right.Whether the seller has the right to remedy the defect on its own initiative is inconclusive.Therefore,in aulid performance,the seller would be difficult to obtain relief when he desired to retrieve the original and re-perform it.However,in international legislation,the seller's right to eliminate the defects initiatively is also known as the seller's right to cure.With the legislated of the United States Uniform Commercial Code,and followed by the United Nations Convention on Contracts for the International Sale of Goods,the International Commercial Contract Rules,and the Draft European Model Civil Code,these legislation and treaties has formed a mature system on the seller's right to cure.Based on the principles of fairness,good faith,economic principles,and the complexity of the transaction process,building a system of seller's right to cure in China has important reference significance for balancing the relationship between the rights and obligations of buyers and sellers and resolving the seller's rescue path in China.The full text is divided into four parts:The first part discusses the nature of the dispute over aulid performance.Mainly aiming at the theory of non-performance of contract and the theory of defective performance,the two doctrines are analyzed by combining the judgment criteria of the defect of Chinese objects and the judgment criteria of aulid in international legislation,and the conclusion of the nature of performance of aulid is drawn.The second part is aimed at China's existing legal system,revealing the dilemma faced by sellers in aulid performance,that is,sellers cannot take the initiative to remedy defects.The third part sorts out the content of the seller's right to cure in international legislation and treaties,and summarizes the constituent elements and legal effects of the seller's right to cure.The fourth part discusses the thinking to build the seller's right to cure in China.Based on the actual needs,value basis and institutional basis,the feasibility and necessity of building the right to cure in China is discussed.