Abstract Trial practice should not rigidly invoke the no-fluidity rule to invalidate the fluidity clause in the sales guarantee, so as to avoid reloading the sales guarantee into the system cage of the typical guarantee. As a compulsory preventive measure, the no-fluidity rule is reasonable to some extent, but the necessity of its legislative purpose has been rapidly shrinking, so it is not advisable to use expansion explanation or analogy application to interpret the no-fluidity rule, and the fluidity clause in the sales guarantee is legal and effective. To impose liquidation obligation on creditors can strengthen the legitimacy of the fluidity clause, so as to thoroughly clear the ethical barriers to the validity of the fluidity clause in the sales guarantee. The guarantor shall bear the initial burden of proof. Only when the value difference exceeds the “24% annual interest rate ceiling”, can the liquidation be started to ensure the efficiency advantage of the fluidity clause. Although the fluidity clause is similar to the debt in kind, the no-fluidity rule should not be used to restrain the debt in kind in the non-sales guarantee.
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Received: 07 January 2020
Published: 15 March 2020
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Corresponding Authors:
ZHANG Wei
E-mail: 516386859@qq.com
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