Study On The Risk Burden Of Movable Property Sales Contract Before Its Termination

Both the rules of risk burden and the system of contract termination are stipulated in China's "Contract Law",and they have a certain cross relationship.In case of termination of the contract,the risk burden can be divided into the risk burden before the termination of the contract and the risk burden during the restitution process after the termination of the contract. "Contract law" article 142 established the delivery doctrine of risk burden rules,but this rule can not be generally applied to the risk burden of movable property sales contract before its termination.In addition to the introduction and conclusion,this paper consists of five parts.The first part,the basic rules of the risk burden of the movable property sales contract.Study on the risk burden of movable property sales contract before its termination shall be premised on the basic rules of the risk burden of the movable property sales contract.The burden of risk refers to the system of which party shall bear the adverse consequence of the damage or loss of the subject matter which can not be attributed to the parties in a bilateral contract.There are three kinds of legal system of risk burden,which are contract establishment doctrine,ownership doctrine and delivery doctrine.The "contract law" of our country adopts the mode of delivery doctrine which conforms to the current legislation trend.On the relationship between the rules of risk burden and the system of contract termination,there are“Coexistence model”and“Termination of Contract Unified Model”and the contract law of our country adopts the former.The second part,the general rules of the risk burden of movable property sales contract before its termination.In the case where there is no breach of contract in advance,Whether the termination of the contract is based on force majeure or other risks,such as unexpected events,the nature of the subject matter or the third person's behavior,the delivery doctrine rules of risk burden are applicable,but in the case of other risk reasons,the default party should bear the responsibility for breach of contract.In the case of refusal to perform,the refusal performance before the expiration of the performance period will not affect the risk transfer rules,the refusal performance after the expiration of the performance period can apply the risk burden rules for the delay in performance.In the case of delay in performance,if the seller delays in payment,the seller is liable for the risk during the delay;if the buyer delays in acceptance,the buyer assumes the risk during the delay of acceptance.In the case of number defects,if the buyer refused to accept the subject matter,the risk shall be borne by the seller who has not yet completed the delivery;if the buyer receives the subject matter the risk borne by the buyer upon delivery.In the case of quality defects,if the defects not belonging to the hidden defects and the buyer receives the subject matter,the risk before the contract is released is to be borne by the buyer;if the defects belonging to the hidden defects and the buyer does not know or is difficult to know the defects when take delivery of the subject matter,the risk should be borne by the seller.In the case of contract termination,the risk burden rules shall have influence on the legal effect of contract termination.If the seller to bear the risk before the termination of the contract,the buyer does not need to make pricing compensation when the contract is terminated;conversely,If the risk is borne by the buyer,then it should bear the obligation to do the pricing compensation.In the case of intended termination,unless otherwise agreed,the general rules of the risk burden before the statutory termination are still applicable.The third part,the risk burden of on-line sales of movable property contract before its termination.The risk burden of on-line sales of movable property contract is often stipulated by standard clauses which should be specially ruled in informing obligation,the validity of contract,and the interpretation of contract.The risk burden of on-line sales of movable property contract before its termination should be transferred to buyer when he signs for the goods from the carrier.Consumer's right of withdrawal is the right to terminate the contract and it is a right to protect consumers as well as realize the goal of justice and efficiency.In consequence,the risk burden before the consumers withdraw the contract lies with the seller.The fourth part,the risk burden of trial sales of movable property contract before its termination.The process of the trial sale can be divided into two stages,namely the stage of trial and the stage of buying and selling.Under current legal system,the legal relation between sellers and buyers in the stage of trial can be defined as pre-contract.In trial sales,the risk burden is transferred to the buyer when the object delivers to the buyer in the stage of trial.The last part,the risk burden of installment sales of movable property contract before its termination.During the process of installment sales of movable property,whether the seller retains ownership or not,the basic rules of the risk burden of the movable property sales contract can be applied.Even if the seller terminates the contract through applying article 167 of the contract law,the basic rules can also be applied.