Revised Japanese Civil Law adopted the legal character of warranty liability of trade as contractual liability theory, and changed the 「defect」 concept into 「contractual incongruity liability」 concept, and also it was admitted that the buyer has the rights to cure, compensation reduction claim, damage claim and contract cancellation as contractual incongruity liability of trade(Revised Civil Law Article 562~564).
In addition, the subcontract has been applied to revised Civil Law article from 562 to 564 which established the buyer’s right on the contractual incongruity through the article 559, therefore there is no formality gap between trade contract and subcontract in warrant liability regulation of Japanese revised Civil Law by current revision.
However, traditionally the subcontract is the contract that use other’s labor, and emphasizes the behavior of work completion. Trade and subcontract are both result debt, but subcontract needs precondition of behavior and trust relationship. In spite of traditional gap, contractual incongruity liability regulation of trade in revised Civil Law article 559 has been applied to subcontract. Revised Civil Law has problems as follows because of the traditional rule gap between subcontract and trade.
First, in terms of the object defect, trade is 「seller’s the right to cure = repairing the object, delivering the substitute or delivering the shortage」, and subcontract has the character of 「subcontractor’s the right to cure = compensation claim」. Nevertheless, there needs to be examined that the former warranty liability regulation was deleted and regulated the trade equally in the form of equivalence.
Second, in terms of the legal character of right of defect repair claim, the character of the right of defect repair claim is interpreted as transformation of the right to claim performance in revised Civil Law. That is to say, compensation claim should be exercised first, and then damage claim could be exercised if the repair would be impossible or not carried out within a certain period. It means to foretell some change on the former opinion about the character of defect repair claim in Japanese Civil Law.
Third, in terms of cancellation system, imbalance problem between ‘notified cancellation’ and ‘not notified cancellation’ should be solved, and also the problem that the cancellation could be possible if the subcontractor has the attributable reason should be solved.
There are various inherent issues including the problem through deleting the provision of existing Civil Law article 634, these are the tasks ahead to be settled.