Sales Contracts The Risk Burden Rules

In the market-oriented society, transaction is filled with the risk, The litigant can either arrange in the contract in advance or solve it by law on how to undertake the risk. The principle of taking risk mainly applies to the contract of sale. Since the issue of taking risk relates to the essential interests of the litigant, it is very important to lay down the reasonable principle of it. With this purpose, this paper discusses and studies the rules of rise-taking in contract of sale.In current contract laws, the concept of risk-taking in the contract of sale contains broad sense and narrow sense. The broad sense refers to the damage and the loss of the object, and the loss of the carry-out interests and expectation interests, and the narrow one just refers to the damage and loss of the object. The risk studied in this paper is the narrow one. The reasons of risk-causing including the force major, accident and the third people's fault that can't be foresee by the litigant. The issue of risk-taking plays important role in the law of contract of sale. The system of risk distribution is one of the nuclear issue.On when the risk is transferred form the buyer to the seller, there are three viewpoints in the law circle, the doctrine of the establishment of the contract, the doctrine of ownership and the doctrine of delivery. The three theories combine the transition of the risk with the different events in the transaction, namely the establishment of contract or the transition of the risk or the delivery of the object. The doctrine of the establishment of the contract means that the risk is transferred from the seller to the buyer when the contract is established, the doctrine of ownership means that the risk is decided by the transition time of the ownership and the transition doctrine regards object transition as the standard of time a risk transition, regardless whether the ownership is transferred. So the writer thinks that we should adopt the "risk and benefits consistency" principle on the rule of risk-taking.The contract of law of our country adopts the transition doctrine as generalprinciple. The principle demonstrates some scarcities in practice. We can adopt the transition doctrine to the real property business, but we can't simply adopt it in the situation of revision of the owner. We should adopt the principle of lease contract, custody contract or borrowing contract according to different situation. To business of the goods on the way, the contract law advances the tome of transition risk to the establishment time of the contract. This principle matches " the risk and benefits consistency" principle. To the risk-taking of long way business, the writer thinks that it can't adopt the transition doctrine. To the sale on contract, whether the risk is transferred is decided by the buyer's attitude to the goods. On the risk-taking in the situation of breach, the paper discusses two kinds of situation, delaying implement and vendor's flaw implement.