A Study Of The Judicial Application Of Antique Trading Customs ——A Perspective On The Case Of Liang,Huang,and Others

As a form of investment,antique trading is characterized by high returns and high risks.Unlike ordinary commodities,the antique industry has formed a "non-fidelity" trading practice,that is,buyers buy antiques based on their judgment and cannot ask the seller to return the goods even if they are fakes,and the industry follows the trading rules of risk and buyer’s discretion.Due to the conflict between antique trading customs and the provisions of civil law,the practice is divided on whether and how to apply antique trading customs.In the early days of antique sales disputes,the court ruled that the contract was generally rescinded by a material misunderstanding,and with the gradual recognition of the "no fidelity" rule,many cases were applied in the absence of a basis for the application of the rule.Antique trading customs have always played an important role in practice,but the different understanding of trading customs,the lack of commercial concepts,and the absence of relevant laws have led to a divergence of decisions.This article discusses the judicial application of antique trading customs in three parts.In the first part,three cases of disputes over antique sales contracts are selected and summarised.The similarities between the three cases lie in the fact that all three cases involved buyers claiming avoidance of the contract on the grounds of material misunderstanding,fraud,and a showing of fairness after having bought a forgery,but the courts’ decisions were different.In the case of Zhang and Yue and Zhao,the court strictly applied the customs of antique transactions and did not uphold the claims of avoidance on the grounds of material misunderstanding,fraud,and a showing of fairness.The court in the case of the dispute between Liang and Huang over the sale and purchase contract held that antique trading customs should not be applied and rescinded the contract on the grounds of material misunderstanding.In the case of Xu and Zhu,the court held that although antique trading customs are special,they should still comply with the principles of fairness and good faith,and varied the contract based on manifest injustice.The dispute in the above case focused on the applicability of antique trading customs,whether the contract could be rescinded based on material misunderstanding and fraud,and whether the contract could be rescinded based on manifest injustice.The second part of the case provides a corresponding jurisprudential analysis in response to the focus of the dispute.Firstly,the scope of antiques and the criteria for identifying antique transactions are clarified as a prerequisite for the application of the custom of antique transactions.Secondly,the basis for the application of antique trading custom is analyzed,the nature of trade custom is clarified by identifying custom and customary law,and its legal source status and applicable subordination are illustrated.Once again,antique trading customs conflict with the enacted law in a judicial application,neither can the special nature of antique trading customs be ignored in full accordance with the general law of civil adjudication,nor can antique trading customs be applied in one go.Through the collation of theories of meaning,combined with commercial concepts,the conditions for the application of material misunderstanding,defective warranty liability,and equitable principles in the antique industry are clarified,and the unreasonableness of fidelity promises in the current judicial determination is further analyzed.Finally,the transition of antique transactions to e-commerce and the increasing fraud are analyzed in practice by listing the types of fraud in terms of the existence of bad faith on the part of the seller,the existence of bad faith on the part of the buyer and the absence of bad faith on the part of both parties.In the third part,after analyzing the jurisprudence,this paper recommends that the regulation and improvement of the antique market cannot be achieved without the restraint of legislation and that the legislation on folk collecting needs to be accelerated and improved,with the introduction of a reversal of the burden of proof and a system of exemption from liability for defects.The establishment of a unified national antique industry association to better manage the folk collection market in terms of pre-supervision and post-supervision coordination,while administrative supervision cannot be absent;Improve the responsibility of antique e-commerce platforms,both professional antique trading platforms,and non-professional platforms should fulfill the corresponding regulatory obligations.A cooling-off period system can also be introduced for transactions between individuals to promote the standardized and orderly development of the antique market.