Study on the effectiveness of fluidity clause in the era of Civil Code
DOI:
https://doi.org/10.54691/bcpbm.v49i.5425Keywords:
the sales guarantee; liquidity pledge clauses; fairness.Abstract
In the background of the concept of substantive guarantee introducing in the Civil Code, invalidating the effectiveness of liquidity pledge clauses rigidly in the sales guarantee is no longer appropriate. Although there is a new development in the Civil Code for liquidity pledge clauses, which tends to moderate the legitimacy of liquidity pledge clauses, it does not specify the effectiveness of the clause, and there is a certain legislative gap. With the loss of the necessity of the legislative purpose of the foundation of liquidity pledge clauses and the decline of the comparative law, the analogous application of liquidity pledge clauses to the sales guarantee will result in an undue generalization of the validity range of the liquidity pledge rule. Therefore, the legitimacy of liquidity pledge clauses should be permitted in the case of the sales guarantee. At the same time, vesting liquidation obligation should be introduced in this form of guarantee, and the obligation to liquidate should be imposed on the creditor, which is a way to clear the obstacles faced by the lifting of the ban on liquidity pledge clauses and to protect the balance of interests of both parties. At the same time, if the difference between the value of the collateral and the claim does not “exceed 24% per year”,the liquidation procedure can not be requested ,thus maximizing the efficiency value of liquidity pledge clauses.
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