浅析违约情形下默示放弃解除权的认定

On the Determination of Implied Waiver of Rescission Right in Case of Breach of Contract

解除权作为一项基本民事权利,依权利可放弃等法学基本原理,解除权人自然可以放弃行使之。在法律实务中,解除权人明确放弃解除权自无争议,与明确放弃不同的是默示放弃行为因缺少相关法律规定致使解除权人以默示的行为方式放弃解除权颇具争议。依私人意思自治原则,解除权人以默示的行为放弃权利是可行的,但也并非在所有情形下均可视为解除权人放弃解除权的意思表示。解除权人不同的默示行为,以默示放弃解除权的可行性也不相同,当违约且存有补救可能时,接受违约方履行且履行能满足合同目的时可视为放弃解除权;违约且无补救可能时,接受违约方合同以外的履行亦可视为放弃解除权。

As a basic civil right, the right of rescission can naturally be waived by the holder of the right of rescission according to the basic principles of jurisprudence such as rights can be relinquished. In legal practice, there is no dispute that the rescission right is explicitly waived by the rescission right holder. Different from explicit waiver, the act of implied waiver is quite controversial because of the lack of relevant legal provisions that the rescission right holder gives up the rescission right by implied behavior. According to the principle of autonomy of private will, it is feasible for the rescinder to give up his right by implied behavior, but it cannot be regarded as the intention of the rescinder to give up his right under all circumstances. The feasibility of the implied waiver of rescission right varies with the implied behavior of the rescission right holders. When the breach is made and there is possibility of remedy, the performance of the party accepting the breach and the performance can satisfy the purpose of the main contract, the rescission right can be regarded as waiver. In case of breach and no remedy is possible, acceptance of performance outside the contract of the breaching party may be deemed as a waiver of rescission.