The criterion of"before/after the expiry of the period of performance of the obligation"adopted in Judicial Interpretation of the General Principles of the Contracts Part does not allow for a clear definition of the secured debt-in-kind.Defining secured debt-in-kind is vital for correctly applying the fluidity prohibition rule.The failure to define it clearly is rooted in a misunderstanding of the rule's legitimacy basis.In behavioral economics and psychology,the fluidity prohibition rule's legitimate basis is to prevent damage to the debtor caused by overconfidence and blind optimism.This can be achieved by re-categorizing the debt-in-kind.If the debtor's final payment isn't tied to its ability to perform or doesn't pose uncertainty leading to loss,the effectiveness of the debt-in-kind is unrestricted.In other cases,restricting the effectiveness of debt-in-kind is necessary.If parties intend to guarantee,the debt-in-kind's effectiveness is limited by the fluidity prohibition rule;otherwise,discretionary liquidated damages rule applies.
关键词
《合同编通则司法解释》/行为经济学/担保型以物抵债/流担保禁止规则/违约金酌减规则
Key words
Judicial Interpretation of the General Principles of Contracts Part/Behavioral Economics/Secured Debt-in-kind/Fluidity Prohibition Rule/Discretionary Liquidated Damage Rule
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