Study On The Risk Burden Of Housing Sale Contract

The risk burden of business contract has long been a concern, which is one of the core issues of contract law. There are defined rules for the risk burden of movable property in many countries’ legislation. But these rules are rarely referred to immovable property. Although our country has made some relevant provisions for risk burden, still conclusions for some special situations are lack. There is much argument in academic circles, and the treatment methods are not the same in practice. This paper, which bases on the real estate as a immovable property typical, carefully studies on the risk burden of immovable property, analyzes several controversial problems in practice, and puts forward some personal opinions and suggestions. The paper is divided into five chapters.The first chapter defines the concept of risk, and analyzes the reasons for risk: mainly force majeure, accident and the third party. Then defines the concept of risk burden, expounds how to determine risk burden, and finally introduces the legal consequences of risk burden.The second chapter discusses three main legislative patterns of risk burden: the doctrine of the establishment of the contract, the doctrine of ownership and the doctrine of delivery. At the same time, this paper respectively expounds the advantages and disadvantages of three kinds of legislative mode, and introduces the legislation mode that our country adopted right now.The third chapter is the continuance of the last chapter. It especially analyzes the risk burden of housing contraction in the doctrine of delivery mode. This part firstly introduces how to define the delivery time in housing business contract. And then discusses in detail in the four situations of Concept Delivery and Reality Concept, when to transfer the burden of risk between the parties.The fourth chapter lists the issues of risk burden under five special conditions. They are respectively the real estate multiple sales, the delivery of ownership before delivery, selling rental housing, installment sales and commercial housing mortgage. The five special circumstances, should be dealt with particularly cautiously in the practice and be analyzed on specific situations.The fifth chapter expounds the relationship between the liability for breach of contract and risk burden: When the reason of damage and loss of the subject matter can not be attributed to both parties, and the reason is the only cause of the existent risk,and one party or both parties constitute a breach of contract, how to define with this situation. This paper emphatically describes the issue of risk burden under the two conditions of incomplete performance and delay performance.