论一物数卖合同效力与买受人权利救济

学界主流观点不区分后买受人主观态度,主张一物数卖所涉合同均有效欠缺法理,且对恶意串通的认定存在认识偏差。只要后买受人明知先买受人的存在,则后买卖合同相对无效。先买受人未取得标的物所有权时,先买受人有权要求出卖人承担违约责任,有权要求恶意的后买受人承担侵权损害赔偿责任;先买受人行使债权人撤销权除要求后买受人主观恶意外,还需以出卖人不履行合同难以承担违约责任为前提。根据《合同法》第151条出卖人不承担权利瑕疵担保义务的规定,恶意的后买受人未取得所有权时,出卖人不承担违约责任。买受人要求出卖人承担违约责任及先买受人要求后买受人承担侵权损害赔偿责任时,责任主体的责任范围包含权利主体的预期利益在内。

Contractual Validity of Several Sales and Legal Remedy for Buyer

when the same subject is sold repeatedly,a majority of scholars claim the contracts are valid,even when the latter buyer knows the existence of the front buyer,which is unreasonable and misunderstood the connotation of malicious collusion. If the latter one knew the seller has signed contract with the other before he signed the contract,the former buyer has the right to make the latter sales contract void. When the former buyer has not been the owner of the subject,he has the right to request the seller be liable for breach of contract. If the latter buyer know the existence of the former buyer,the former one also may ask the latter buyer to assume his damages when he is not the owner,and if the seller cannot be reliable for his breach of contract,the first buyer can also exercise creditor’s right of revocation. According to Article 151 of Contract Law,which indicates when the seller need not to undertake the liability incurred by defects of right,if the latter buyer know there is someone buy the subject before him and he is not the owner of the subject in the end,the seller need not to be responsible for his breach of contract. When the buyer requires the seller be liable for breach of contract,or the former buyer demand the latter one to assume his damages,the anticipated profit of rights subject is included.