Study On The Risk Burden Of The Subject Matter Of Sales Contract

The risk burden of sales contract involves the fundamental interests of both parties, which is the important legal issue of goods sales contract. Therefore, all countries attach great importance to the legislation of risk burden of goods, which has also been standardized in the relevant international conventions and trade practices. The "Contract Law" of the People's Republic of China has detailed rules about it in the chapter of sales contract, based on the reference to international, foreign related legal systems and legislative experiences. However, there is great controversy and some bias on the understanding of basic theory, legislative choice and provisions of "Contract Law" of the risk burden of the subject matter in the academic circle, leading to the misunderstanding of the rules of risk burden in the practical application. Therefore, with the comparative, analysis and other methods, I study such issues on basic concepts, major theories, legislation and specific application of the risk burden, for the more comprehensive and clearer understanding of the system of risk burden, and for the benefit to the improvement of relevant legislation and practical operation. The full text is divided into three parts altogether:The first part: the definition and theoretical value of the risk burden. Before the study on the system of risk burden, the content of "risk" must be defined first. Risk in the law, is the damage to or loss of the subject matter caused by reasons which are not attributable to the both parties, and the risk burden means which party of the contract should bear the loss and adverse consequences caused by the risk. Second, the risk is the state of no interest, which will bring about different effects to the rights and obligations of the parties. Therefore, this article analyzes the legal effect of risk burden from the perspective of both the seller and the buyer. Moreover, since the system of risk burden has important theoretical value, and has played a major role in the realizing fair trade, improving trade efficiency and safeguarding the security of trade, there is need to explore.The second part: the main theories and assessment of the risk burden. There are two primary theories on the rule of risk transfer of sales contract, namely the doctrine of ownership and the doctrine of delivery. As the so-called doctrine of the establishment of contract proposed by some scholars, in fact, which is belong to the doctrine of ownership. This is the result of real right alternation adopting the mode of credit meaning creed. Since either the doctrine of ownership or delivery has some flaws, and can not meet the requirement of complex social and economic life and diversification of trading patterns. Therefore, the author introduce the "risks and benefits consistency" basic norms of the market transactions as the theoretical basis, to build the rules of risk burden of sales contract, and accordingly propose a third theory of the risk burden - eclecticism: the doctrine of delivery is the main, and the doctrine of ownership is the secondary, for a fairer and better reasonable allocation of risk between the parties.The third part: the specific application of the risk burden. The thesis first introduces the general rule of risk burden in the "Contract Law", that is the principle of delivery. The key question is how to understand "deliver", whether which is limited to actual delivery and real estate transactions or not. Then the thesis explores the special provision relating to the risk burden in the "Contract Law", that is the risk burden of special circumstances, mainly including the risk burden in the situation of breach of contract, of road freight trading and involved in transportation, as to clarify the legislative purport of the special provisions and the possible problems in the specific application. Finally, the article discusses the risk burden of special sales, mainly including auction, try trading, remote trading, and instalment sale. Due to the specificity in the establishment and effectiveness of special sales, there are great disputes and differences on their risk burden. Therefore, this article shows separately in this, to focus on.