Study On Risk-Bearing In Sales Contracts

Risk-bearing in sale contracts means that, which party of the contract should bear the physical loss or damage of the items that can not due to any party. As an important rule of allocation of loss, risk-bearing takes a crucial role in regulating duties of the two party of the contract, so all contract laws must pay special attention to the rule of risk-bearing. This paper attempts to discuss the basic rules of transferring risks, its interpretation and application rules, and all of these will be based on the analysis of some basic theories in this area. Furthermore, some suggestions to certain difficult problems in practices will be addressed.In part one of this paper, some basic definitions about the rules of risk will be discussed. Firstly, the nature, the characteristics and the composition of risks will be discussed; the risks have two categories, the risks of the loss or damage to the rights of the items and the pretium risks, the latter may be caused by force majored, accidents or the third party. Secondly, the denfination, characristics and significances of risk-bearing will be discussed; the differences in risk-bearing, doctrine of change of circumstances and insurance will be distinguished.In part two of this paper, the general rules of the time-point of risk transferring will be discussed, because this is the core issue of the rules of risk-bearing. The time-point can be ascertained by the time of the property transferring or by the time of delivery, and according to this paper, the latter is considered to be more advanced.In part three of this paper ,the applications of the rules of risk-bearing in certain circumstances will be analyzed, and the specific circumstances are the risk-bearing in contracts referring shipping, the risk-bearing in contracts of floating cargo , the risk-bearing in contracts of trial and the risk-bearing in auction.In part four of this paper, the relationship between the liabilities for breach of contract and the risk-bearing will be discussed. If the strict liability is selected as the principle of criterion of liability of breach of contract, it will conflict with the rules of risk-bearing, so some scholars argue to definite risks again. This paper doesn't agree with the former opinion, while another method is brought out to recognize the relationship in application the rules of risk-bearing and the liabilities for breach of contract. The two forms of breach of contract, delayed performance and non-full performance, will also be involved in the discussion.In the conclusion part of this paper, some main viewpoints are reviewed, and the substance of this paper is concentrated.