Research On The Risk Burden System In The Sale Contract

The system of risk bearing responsibility of business contract is an important system ofcontract law. It is a problem who should take responsibility when the goods is damaged or lostaccidentally not attributable to the both sides of parties. From the history of human social andeconomic development, the establishment of the system is important for the protection of theinterests of both parties to the transaction, facilitating and encouraging trade, and promoting socialand economic development.The first part introduces the concept of risk of business contract and discusses the riskconnotation substance of business contract and the risk substance. Based on a combination of theresults of previous studies and related legislations, this paper considers that it is more reasonablethat the substance of the contract of sale shall be defined as price risk.The second part focuses on the three main legislation theories about legislation of the system.It puts emphases on the historical background of the development of risk bearing system ofbusiness contract, the people’s value choice on the risk bearing system of business contract. Itelaborates the main content of three main legislative theory and main legislative cases and that theprinciple of delivery is becoming the mainstream theory in the world, which lays a theoreticalfoundation for the analysis of business the contract risk bearing system of China’s "contract law".The third part is the analysis of the relevant provisions on the risk bearing system of China’s"contract law" combined with the delivery theory. It mainly introduces controversy about theconnotation of "delivery" in theory research and makes a comparative analysis on the views ofboth sides and makes a conclusion as follows:"delivery" in China’s "contract law" refers only tothe transfer possession,does not vary according to different subject matter of personal and realproperty. In addition, it also discusses the application of delivery theory in several special tradeform including online shopping, goods in transit trade and trial business.The fourth part puts forward some humble opinion on the improvement of the risk bearingsystem in the condition of business of goods in transit trade and the default of buyer and seller,hope to contribute to the healthy development of legal practice in the contract bearing system.