Study On The Risk Burden System In Sales Contract

The risk of burden system in Sales Contract is stipulated in Article142-148 of Contract Law of The People's Republic of China,which is a reference of comparative law but deviated.The contract law has not distinguish the payment risk from the corresponding risk(price risk),and the risk in Article 142-148 refers to price risk.As the normal rules of risk burden system is that the risk transfers to the buyer accompanying the delivery,there must be reasonable explanations if there were some exceptions,but Article 148 exceptionally stipulated that if the quality of a targeted matter fails to meet the requirements,the risks of damage and loss of the targeted matter shall be borne by the seller and without a good reason.So Article 148 should be narrowed with purposiveness: the risk of damage and loss can be transferred to the seller only in the case that the targeted matter also would be damaged within the scope of the seller.This paper has four chapters discussing the risk-bearing rules of contract of sales.Chapter I is aimed to define the conception of risk in the context of “the risks of damage and loss of the targeted matter”.Chapter ? mainly talked about the principle of delivery and compared the other rules of risk-bearing in sale contract,that is the principle of existence of the contract and the principle of ownership,and then explained the rationality of the principle of delivery.Chapter ? mainly expound the normal risk-bearing rules after the dissolution of the contract,and then stated the rationality that the risks of damage and loss of the targeted matter shall be borne by the seller if the quality of a targeted matter fails to meet the requirements.Chapter ? discussed the relationship between the risk-bearing rules during the performance of the contract and the risk-bearing rules after the dissolution of the contract,which all involved the relation of the bilateral contract,but during the performance of the contract,the doctrine of delivery is the principle,and the risk transfer back to the seller is an exception.So the scope of the exception was too broad,and it must be narrowed with purposiveness,that is the risk of damage and loss can be transferred back to the seller only in the case that the targeted matter also would be damaged within the scope of the seller.