Breach Of The Agreement Under The Contract For The Sale Of The Subject Matter Of The Risk Burden Study

The risk burden for breaching contract of sales in the modern contract law is a very important issue. It relates to the liability for default and the burden for risk .As these are two major civil legal systems, it is more complicated to resolve the issue. We must consider both risk burden and the liability for default. The rule on liability for default is included in the scope of its considerations. It may lead that risk burden at the time is contrary to the general rule. Risk burden involves the fundamental interests of parties, so it is very necessary to clear risk burden for default. For this purpose, this paper will explore and discuss the issue. This paper consists of four sections:Section One, fundamental problems on liability for default and risk burden. First of all, this part introduces the basic concepts of them. The following, by analysing their relationship, we know there are not only differences but links. Both of them are indispensable in dealing with risk burden of default. On this basis, risk burden of default will be studied. Under normal circumstances, we often apply Doctrine of Delivery or Doctrine of Ownership. Different breaching acts produce different law results, then, there will be different effects to risk burden. If we still use some rule, it would be difficult for parties to keep an equitable balance of interests, and it may bring unfairness. Therefore, in accordance with Fair Principle in the contract law, we should apply different methods to different breaching acts. If the parties' breaches can prevent the transfer of risk, the default party should bear it. And, there is default, even serious default, but the risk transfer isn't impeded. At the monment, the breaching party should bear the responsibility for default.Section Two, risk burden of the buyer default. Buyer default leads that the goods of contract is delivered timely. In this case, any one will not affect the risk transfer. But buyer default will affect the time of risk transfer. Doctrine of Delivery is no longer applicable.The risk, that the seller should bear the risk of default before delivery, transfers to him. Now, the time of risk transfer is no longer the time to delivery, but the time of buyer default. Risk burden by the buyer does not affect the seller's right that he can require the buyer to assume liability for default. That is, the buyer must assume both the responsibility for default and the risk burden. There are some conditions in the case: the seller must deliver the goods which it must be in keeping with the terms of the contract; the goods of the contract has been specified; the buyer breach has occurred before delivery and affected the delivery of the goods; and the risk burden for buyer default should have reasonable limits; and so on.Section Three, risk burden of the seller default. When seller breaches seriously, buyer may take all kinds of approaches to relieve for safeguarding his own legitimate interests. If buyer refuses to accept the goods of the contract, or cancel the contract, the risk burden will be completely impacted. The seller default will impede the risk transfer. Seller should bear the risk from the beginning. If buyer accepts the goods and require seller to take the responsibility for default, the risk will transfer to him. When the seller default isn't complete, buyer doesn't have right to rejecting or cancelling. So the risk transfer isn't impeded, and buyer bears the risk from the time of delivery. Therefore, regarding this case, we can summarize into the following: Fisrt, when seller defaults the contract completely, in accordance with the terms in the contranct or the laws, buyer can exercise the right to rejecting or cancelling . Seller bears the risk from the beginning. Second, if seller only breaches some terms, or even if seller defaults completely, but buyer cannot exercise his right to rejecting or cancelling, the risk will transfer from the time of delivery. However, buyer still enjoy the right to requesting seller to take the liability for breach of contract.Section Four, perfection on the risk burden system in China's Contract Law. After comparing and analysing the existing provisions and research in the first three parts, this part will discuss the risk burden system in China's Contract Law. I think, although on the basis of studying the experience of foreign legislation, and linking with our existing legislation and judicial practice, Contract Law has prescribed the risk burden for default. But there are some deficiencies in ours to be futher improved.