The Legitimate Basis Of "Back Move Of Risks"

Article 148 of the contract law provides that the risk "jumps back" to the seller after the termination.On this provision,there are three aspects of legitimacy,scope of application and legal effect in Chinese academic circles.On this basis,this paper summarizes the main issues as follows: the subject matter is damaged or lost after delivery.If the contract is terminated,which party shall bear the consequences of the damage or loss of the subject matter?This paper divides the termination process into three stages: before the buyer knows or should know the cause of termination,after the buyer knows or should know the cause of termination,and after exercising the right to terminate.Because after the buyer knows or should know the cause of termination,the buyer may be required according to article 60 of the contract law to take care of the subject matter.After the buyer exercises the right to rescind,he may be required to return the subject matter according to article 97 of the contract law.If the buyer breaches these two obligations through fault,it shall be liable for damages in accordance with the general provisions.There is nothing wrong with the treatment mode of these two stages,and the result is consistent with the risk rebounding rule of unexpected risk rebounding to the seller,so there is no need to apply the risk rebounding rule.Until the buyer knows or should know the reason for the termination of the contract,because the buyer may rely upon himself as the owner of the subject matter and shall not be liable for any incidental or restitution obligation.However,if the risk rebounding rule is applied,it means that the buyer can dispose of the subject matter at will without any responsibility,and the consequences of damage and loss of the subject matter caused thereby are transferred to the seller,which greatly breaks the treatment of the dual service contract and is not appropriate.Therefore,it is necessary to further consider the legitimacy of the risk rebounding rule.Consideration of the legitimacy of the risk jump rule before the buyer knows or should know the reason for the termination of the contract.Starting from the generalized risk,this paper divides the damage and loss of the subject matter into three situations.First of all,if the damage or loss of the subject matter is attributable to the seller,it can be handled according to the seller's liability for breach of contract,such as the damage of the subject matter due to defects.In addition,in the case of nonattributable to the seller,the reason for the damage or loss of the subject matter may be the disposition of the buyer,or a third party act or natural event not attributable to the buyer.However,the latter situation is essentially the realistic consequence of the risk after the buyer's disposition puts the subject matter in a certain risk field.Therefore,in both cases,the buyer shall,in principle,be liable for the consequences of damage or loss of the subject matter,such as negative value compensation obligations or otherwise.Since the buyer's disposal behavior is directly related to the consequences of the damage and loss of the subject matter,and the buyer is aware of the risks when disposing of the subject matter,and has voluntarily assumed the risks in order to obtain the benefits of disposing the subject matter,the consequences of its disposal behavior can be imputed.However,the buyer shall not be responsible for the non-existence of the interests corresponding to the disposal of the buyer due to the cause of termination,and the risk shall jump back to the seller.This is the justification of the risk rebounding rule--if the reason for termination affects the buyer's decision to take the risk to obtain the corresponding benefit for the disposal,the buyer shall not be bound by its decision to take the risk.The specific test criterion for whether the termination causes affect the decision of the buyer to assume the risk to obtain the corresponding benefits is: if the seller performs the contract in full compliance with the contract,whether the buyer's profit and loss will be different in the period after the delivery of the subject matter,before the damage or loss of the subject matter.This is also in line with the principle of risk and benefit alignment on the risk burden rule.