《民法典》第598条(出卖人主给付义务)评注

Comments on Art.598 of the Civil Code of People’s Republic of China(Seller’s Typical Contractual Duties)

《民法典》第598条是出卖人主给付义务条款(请求权基础规范),规范内容为出卖人的交付义务与所有权移转义务。在规范意义上,出卖人交付义务不同于动产物权变动的交付要件,也不必然与移转价金风险的交付挂钩。交付义务具有任意性,可以合意改变或排除,或以观念交付替代。所有权移转义务的存在意味着买卖合同自身不产生物权变动效果,出卖人无处分权不影响买卖合同的效力。所有权移转义务的履行须满足物权法上的所有权移转要件,并具备清偿合意。交付义务与所有权移转义务互相独立,二者可能存在时间差。在债权平等的前提下,司法解释中的多重买卖履行顺序可视作意思表示解释规则。

On the Adoption and Application of Dynamic System Theory in the Compilation of Personality Rights in Civil Code WANG Liming·1·As the provision of the seller’s typical contractual duties(legal bases of buyer’s claim),Article 598 of Civil Code provides that the seller is obliged to deliver the thing to the buyer and to procure ownership of the thing for the buyer.The obligation of the seller to deliver the thing is different from the delivery requirement under the creation or transferring of the real right of a movable property,and is not necessarily related with the transfer of price risk.The obligation of the seller to deliver is arbitrary thus can be excluded or replaced by conceptual delivery if the parties reach consent.The existence of the obligation of the seller to procure ownership for the buyer shows that sales contract itself cannot automatically result in the transfer of the ownership,and that the seller’s lack of right to disposal does not affect the validity of the sales contract.The performance of obligation to transfer ownership must satisfy the requirements of ownership transfer under Property Law,and there also must be mutual assent to performance.The obligations to deliver and to transfer ownership are two separate duties,and there could be a lag between the performance of these two obligations.On the premise of equality of rights in personam,the judicial interpretation rules regarding sequence of performance of the contractual duties arising from multiple sales could be treated as interpretation rules for declaration of intent.