物上瑕疵担保责任、履行障碍法与缔约过失责任

物的瑕疵担保制度是否被规定在《合同法》中,是一个有争议的问题,瑕疵担保制度在本质上是一种不完全履行的类型,但其具有独立的制度价值,所以在德国民法典中成为与履行障碍法并列的制度,即使在德国债法改革后也是如此。瑕疵担保制度与不完全履行、缔约上过失等制度,在调整合同后义务以及合同前义务上,存在竞合关系,如何确定它们之间的界限,端赖于具体的价值衡量,基于瑕疵担保制度独有的对买卖双方利益的重新衡量,瑕疵担保制度的调整领域呈现扩张趋势。

On the Guarantee of Flaws of Things, Leistungst? rungsrecht and Culpa in Contrahendo

It is disputable whether the institution of guarante of flaws of things should be prescribed in the Contract Law. The institution of the guarantee of flaws is one of the non-complete fulfillments in essence, however, it has the independent value in legal system and it is an institution that parallels to leistungst?rungsrecht in German Civil Law, even after the revolution of the German Debt Law. The institutions of guarantee of flaws, the non-complete fulfillment of contract and culpa in contrahend have the similar aspects in regulating the pre-contract obligation and the after-contract obligation. How to make each limitation clear is based on the specific judgment in valuation. According to the re-judgment of the interests between the seller and the buyer, the guarantee of flaws has expanded its limitation in regulating the obligations which the contract has or has not done.