The Research Of The Liability For Defects Of Gifts In The Contract Law

Most modern contracts take compensation and consideration as the principle,and the free contract represented by the gift contract is an exception.In the sale contract regular meeting appears the circumstance that the subject matter is defective,in the gift contract also often is it.Because of the non-refundable nature of the gift contract,its defect connotation and extension and damage scope are also different.China has not established a complete liability system for defects,so the academic community believes that it is most appropriate to include it in the liability system for breach of contract.If the existing provisions of liability for defects in the gift are insufficient to explain the existing behavior,how to solve the application of damages through the contract law system? As for the defects of gifts,the provisions of the contract law of China are in article 191.At the same time,in accordance with the historical development and social needs,scholars pay attention to the connection between rules and practice,and constantly explore the remedy methods of liability for defects,so as to balance the legitimate rights and interests of creditors and debtors.Therefore,the author intends to focus on the issue of liability for defects in the gift,and find out the problems in the application of the terms and practices based on the characteristics of the gift contract.Combining with the cases of judicial practice,this paper further analyzes the application and remedy of liability damage of defects.This paper is divided into two parts.The first part puts forward the problems,and finds the problems in the application andinterpretation through the analysis of the basic concepts and the meaning of legal provisions.Chapter one raises questions.Starting from the basic concept of gift defects,the connotation and extension of defects are analyzed.Based on the dispute between defect guarantee and imperfection,this paper determines the defect nature of the gift.Based on the above understanding of the liability for defects in the gift contract and the cases of judicial practice,the author explores the problems in the provisions.In the second part,the author USES comparative analysis,literature collection,normative analysis,empirical research and other research methods to combine theoretical research with judicial practice to solve the problems found in the first part.Chapter ii liability of the donor for damage caused by defects.First of all,the article 191 of the contract law specifies the liability for defects in gifts.Because of the provisions of article 191,this paper compares the views of domestic and foreign scholars on the scope of damage liability,and demonstrates the differences between the damage protected by article 191 and article 189.Secondly,by analyzing article189 of the donor's impossibility of payment,the author argues that the burden of impossibility of payment should exclude the application of arbitrary revocation right and prevent the abuse of the donor's right.Finally,how to deal with the loopholes in article 191 is discussed.If the donor itself needs to bear the obligation of quality assurance,and the gift object is defective and subjectively has only gross negligence,can the analogy be applied to article 189 to judge the donor's liability for defects? In addition,there is also a lack of liability for delay in performance or breach of collateral obligations.Chapter three explores the remedy method of liability for damage caused by defects of the gift.In order to balance the interests of both parties,the liability for defects refers to the corresponding provisions in the principles of the United Nations convention on the contract for the international sale of goods.Therefore,the exception rules exclude the protection of the performance interest,which is the damage caused by the performance of the injury,which also conforms to the requirements of tort liability,so how to deal with the situation of the right of claim contesting.By analyzing the academic theory,this paper argues that liability for defects in contract law should be treated with preferential treatment.At the same time,the law does not provide a specific solution to the remedy,in addition to the situation of competition and cooperation,there are other interests and damages need to explore more ways to remedy the loss.Therefore,the author makes use of the German civil code to explore the remedy of liability for defects,and proposes two solutions and demonstratestheir rationality.The conclusion generalizes and summarizes the two problems in this paper,and finally expounds the liability for defects of gifts in the contract law.