《合同法》第111條（質量不符合約定之違約責任）評注

A Commentary on the Art. Ill of the Contract Law /The Liability for Breach of Contract

《合同法》第111條所涉論題爲“質量不符合約定之違約責任”，包括約定違約責任與法定違約責任，遵循“約定優先，法定嗣後”的基本順序。本條與加害給付、締約過失與性質錯誤之間，存在競合關係；本條與“三包”規定之關係，宜基于“三包”規定爲明示擔保之特性，借助格式條款效力判斷規則，區別探討格式條款明示擔保與本條的適用關係。宜將檢驗通知期間認定爲期限負擔，宜引入更精細的法律擬制規則，區分表面瑕疵與隱蔽瑕疵幷分別規定檢驗通知期間。檢驗通知期閩的適用範圍不宜限縮解釋爲商事合同，而應一體適用于民商事合同。買受人對諸違約責任形式的選擇權，構成請求權的有限聚合，應根據違約責任形式的功能异質性，幷行或單獨適用。應將補正履行中的修理和更換的關係解釋爲選擇競合，由此解决二次修理更換問題。 This article is concerned with “the liability for breach of contract,” including the statutory liability and the contractual liability for breach of contract, which follows the basic sequence of “contractual liability prior­itizing and statutory liability subsequent”. There is a competing relationship between the injury performance, the culpa in contrahendo,the error in nature(Eigenschaftsirrtum) and this article. With regard to the issue of the relationship between this article and the “Three Guarantees,it should be based on the characteristics of express guarantees of the 44Three Guarantees’,then use the validity rules of standardized contract terms to clarify the applicable relationship between express guarantees and this article. The inspection notice period should be deemed as the term burden, and more elaborate rules of legal fiction should be introduced to dis­tinguish between apparent and concealed defects, and the inspection notice period should be specified sepa­rately. The scope of application of the inspection notice period should not be limited to commercial con­tracts. It should be applied to civil contracts and commercial contracts. The buyer’s right to choose among the various forms of liability for breach of contract constitutes a limited aggregate of claims, which should be ap­plied in parallel or individually, in accordance with the functional heterogeneity of the forms of liability for breach of contract. The relationship between the repair and replacement in specific performance should be in­terpreted as elective competing( elektive Konkurrenz),so as to solve the problem of repair and replacement for the second time.

This article is concerned with “the liability for breach of contract,” including the statutory liability and the contractual liability for breach of contract, which follows the basic sequence of “contractual liability prior­itizing and statutory liability subsequent”. There is a competing relationship between the injury performance, the culpa in contrahendo,the error in nature(Eigenschaftsirrtum) and this article. With regard to the issue of the relationship between this article and the “Three Guarantees,it should be based on the characteristics of express guarantees of the 44Three Guarantees’,then use the validity rules of standardized contract terms to clarify the applicable relationship between express guarantees and this article. The inspection notice period should be deemed as the term burden, and more elaborate rules of legal fiction should be introduced to dis­tinguish between apparent and concealed defects, and the inspection notice period should be specified sepa­rately. The scope of application of the inspection notice period should not be limited to commercial con­tracts. It should be applied to civil contracts and commercial contracts. The buyer’s right to choose among the various forms of liability for breach of contract constitutes a limited aggregate of claims, which should be ap­plied in parallel or individually, in accordance with the functional heterogeneity of the forms of liability for breach of contract. The relationship between the repair and replacement in specific performance should be in­terpreted as elective competing( elektive Konkurrenz),so as to solve the problem of repair and replacement for the second time.