Research On The Regulation Of Risk Burden In The Contract Of Sales

In the transaction of goods, sometimes the subject matter of contract degrades or exterminates due to the cause in fact which the parties in contract should not take the responsibility for. In such occasion, there is no liability fixation; the liability of breach contract can not be applied to. So it is a risk in fact. How to allocate the risk to both parties in contract? If the both parties in contract have a stipulation on the risk, it should be applied to. On the contrary, if the both parties in contract have no stipulation or an unclear one, the provision on the risk burden in contract law should be applied to. Since the provision solves the dispute rapidly and protects transaction safety, it is meaningful to research the regulation of risk burden. In this thesis, the author makes a tentative research on it in the way of comparing with other countries, hoping to construct a comparative clear theoretical frame to solve the practical problems.The thesis contains five parts:In the first part, the author mainly has a brief discussion on the theories about the risk and risk burden. The first one is the clarification of risk. The risk is not only about the money paid on the contract but also the damage and extermination of the subject matter. On the occasion of invalidation or being cancelled of the contract, the risk of the damage and extermination should apply to restitution of the original state, compensation for a loss or liability of restitution of unjust enrichment but not the provision on risk burden. Irresistible force, fortuitous event, reason of the third party and the natural character of goods all can cause the risk. The second one is to expound the lawful sense of risk burden and to clarify the two contents of risk burden institution: firstly, the attribution of it; secondly, what lawful result should be received by the litigant who burdens the risk.In the second, the author concludes the legitimate patterns in most countries about risk burden in contract of sale, comments briefly them and generalizes the value of them. The first pattern is the principle of founding contract. This pattern respects the parties'autonomy of the will, but this pattern is not suitable for the developed economy. Now very few countries adopt this pattern. The second pattern is the principle of ownership. This pattern shows the principle of"where there is benefit, there is risk". But it is unreasonable to apply for some new transaction models such as ownership retainer. The third pattern is the principle of delivery. The principle of delivery has many advantages that the principle of ownership has not. This pattern is the main trend in legislation and adopted by many countries, areas and international conventions. Though there are many differences in those patterns, those patterns express the same systematic values such as defense transaction justice, protection transaction safety and enhancement transaction efficiency.In the third part, the author mainly analyzes the risk burden regulation in contract law and concludes some special forms of risk burden in business contract. Firstly, by analyzing the risk burden regulation in contract law and considering the practical situation, the author points that the principle of delivery is adopted in our country's regulation of risk burden. The delivery of goods means occupation but not ownership delivery and registered elements. The delivery of goods includes not only actual delivery but also implied delivery, ordered delivery, occupation amendment and constructive delivery. Secondly, the author concludes some special forms of risk burden in business contract such as risk burden in transaction of float goods, goods delivery, long hauls, probation, and auction, installment payment.In the forth part, the author compares the regulation of risk burden with the regulation of liability for breach of contracts and clarifies them. The author also discusses the risk burden when the subjective matter is damaged in different breach styles. The delay of performance contains the delay in deliverance and delay in receipt. There is no clear regulation in our country's contract law about risk burden on the delay of performance. There is a simple regulation in our country's contract law about breach of contracts on the delay of performance. The author points that the incomplete performance includes the incomplete performance in quality and quantity. There is no clear regulation in our country's contract law about risk burden on the incomplete performance in quantity. The risk burden on the incomplete performance mainly refers to the relations between defective performance and risk burden. The liability for warrant of defect in matters dose not influence the delivery of risk burden. The seller takes risk burden after the buyer withdraws the contract and returns the subjective matter. When the subjective matter degrades and exterminates not caused by the both parties during the terminating period and occupied by the buyer, the buyer takes risk burden.In the fifth part, the author compares risk burden regulation with diminish obligation, change of situation, frustrated contract and insurance system. There is no connection between risk burden and diminish obligation when the both parties dose not break the contract. Thus when one party breaks the contract, the breach changes risk burden regulation, the defaulting party takes the obligation. Occupant of goods and undertakers of risk separates. There is some connections between risk burden and diminish obligation. Risk burden, change of situation, and frustrated contract are not caused by the both parties in same. There are some differences among them. Change of situation should modify or withdraw the contact to keep the beneficial balance of the both parties. The principle of frustrated contract is used to solve the problem whether the contract is cancelled and the obligation is released or not. Risk burden regulation should allocate the risk to the parties and not modify or withdraw the contact. In the past, we know if the buyer takes the risk, the buyer pays for the insurance, in this point risk burden and insurance connect. This cognition is not acceptable now. In international trade, the parties should have a stipulation or choose an international commerce term to decide which party takes out insurance and undertakes the risk. The delivery of insured value is consistent with the delivery of risk between the seller and buyer.