The Risk Bearing In The Sale Of Housing

Risk bearing is the important content in Contract Law. However, the discussion on this topic in academic circles almost all concentrated in the chattels not the real estate, so that the judges can find no legal rules to save the destroyed bulidings after the Wenchuan earthquake. This paper attempts to explore the applicable rules of the risk bearing in the sale of housing, and puts forward some opinions on some difficult problems in practice and the relevant provisions of the present Law. The full text is divided into five parts:The first part defines the meaning of the risk and risk bearing. First of all, simply introduce the intension of the risk from two aspects of nature and content. Then, define the meaning of risk bearing and distinguish between the risk bearing and other related systems in Contract Law.The second part discusses the risk bearing in the sale of housing when both parties have not broken the contract. Firstly, introduce five theory of risk bearing, they are the principle of founding of contract, ownership doctrine, principle of delivery, the creditors and the debtor’s doctrine. Then, carefully analyze the legislation in the world about the risk bearing to come to a dicision that the ownership doctrine is the general applicable rules on risk bearing in the whole world. Then, discuss the rationality and applicability of the ownership doctrine in the sale of housing when both parties have not broke the contract.The third part discusses the risk bearing in the sale of housing when any one has broke the contract. First of all, define the defaults of the housing seller and the buyer according to the obligations of them. Then, discuss the topic that if the ownership doctrine is suitable for solving this kind of problem in the sale of housing when any one has broke the contract.The fourth part discusses the risk bearing in other situations. In this chapter, the author mainly discusses three cases, such as registrating before transfering possession, multiple sales and saling the rental housing.The fifth part analyses relevant legislation of our coutry on risk bearing and puts forward some feasible suggestions. Mainly discuss and analyze three laws of our coutry on risk bearing, such as "contract law","contract law" and "explained three of the Supreme People’s Court on the commercial housing sales contracts dispute cases the interpretation of applicable legal issues". Besides, point out some insufficiency of this three laws and puts forward some feasible suggestions.