Study Of The Risk Burden Of Legal Issues In The Contract For The Sale

During transaction, the bearing of risk directly relates to the rights and obligations of both parties, because it will determine who should take responsibility of loss and damage. If the risk has not yet been transferred, the seller should take the responsibility of loss of goods instead of waiving the obligation of delivering the goods. On the contrary, if the risk has been transferred to the other party, it means that buyer should take responsibility and cannot be exempted from paying. After reform and opening up policy, especially since entering World Trade Organization, China's foreign trades are getting more frequent and the domestic transactions becomes increasingly diversified and standardized. In a word, as trade becomes an essential part of economic life of today's community and the risk burden problems relate to the important interests of both parties, it is practical to study further.This essay is divided into four chapters and has about 20,000 characters. The first chapter introduces the basic theory of bearing of risks and its rules, including the definition of risk and the bearing of risk in domestic contract, concept and scope of the burden of rule, its relationship with related systems and the causes of risks. This chapter introduces the problems and disputes of risk burden in domestic contract. The second chapter describes three types of legislative modes, namely, the principle of formation of contract, the principle of ownership and the principle of delivery. The author introduces the typical countries who adopt the principles and the rules in their codes. After analysis of each mode, the author gives an anatomy on their advantage and disadvantage. Although the principle of delivery has its own weak points, it has unparalleled advantage over other modes, so, it has been generally accepted and becomes the predominant theory of the risk burden standard.The third chapter interprets Article 142 to 149 of China's contract law. Article 142 provides a general principle of the standard of risk burden in China. Article 143 to 149 can be regarded as an exception to Article 142.In this chapter, the fiction delivery and the real estate business have been analyzed separately. The fiction delivery as a special delivery form is more common in real life, the risk burden of real estate has not been regulated in our contract law and it is controversial in practice, so, they are argued separated in this part.The fourth chapter is based on the third chapter and proposes the problems of China's contract law. The main problem is that China does not regard the specialization of subject the as prerequisite of risk burden. There is no rule of time and scope for the buyer if the delay of goods is caused by himself. There is also no specific regulation in the circumstance that the buyer refuses to accept goods or propose to cancel contract because of the seller's breach. Except for the proposition of problems, the author tries to give some suggestions within her capability.China's contract law is promulgated in the era of economic globalization, which absorbs the rules of two legal systems and the requirements in CISC. The regulations of the risk burden are consistent with the provisions in CISG, but there are still some differences in details between them.