The Risk Burden Of Property Damage Under The Invalid State Of The Sales Contract

After the sale contract is invalid,if the contract has been partially fulfilled or completed,according to the provisions of Article 58 of the Contract Law,the property shall be returned to restore the legal status of the property before the performance of the contract.However,if the subject matter is destroyed and lost after delivery due to reasons not attributable to the buyer and seller,the return of property is obviously impossible.At this time,the restoration of the legal status of property can only be achieved by means other than the return of property.However,no matter what alternative way of performance,we must first explore the allocation of the risk of damage to the subject matter.The determination of the risk-bearing party and the proportion of risk-bearing is the premise of restoring the legal status of property before the performance of the contract.Article 58 of the Contract Law stipulates that after the contract is invalid or cancelled,the property acquired by the contract shall be returned;if it cannot be returned or is not necessary to return,it shall be compensated at a discount.In literal sense,the property that cannot be returned due to the risk should also be compensated at a discount,that is,the risk should be borne by the buyer.However,Article 58 of the Contract Law,as a legal arrangement under the condition of invalidity of a contract,is not in itself the eligible claim basis for the claim of "return of property",because there is no valid contractual obligation under the condition of invalidity of a contract,and the nature of property and creditor's rights determines that the claim basis of "return of property" and other alternative forms can only be based on the exception of "coincidence".In the civil law system outside the same law,without acknowledging the causelessness of the real right act,the return of property after the invalidation of the contract involves the claim for the return of property under the real right and the claim for unjust enrichment under the legal obligation.Neither of the two claims requires the bona fide possessor to bear the responsibility of "discount compensation".Therefore,the contract is in conformity with the law.The "discount compensation" stipulated in Article 58 of the same Law does not belong to the distribution of the risk of damage and loss of the subject matterunder the condition of invalidity of the contract.Articles 142 to 144 of the Contract Law stipulate the rules of risk allocation in the contract of sale,that is,the transfer of risks in the sale of ordinary goods adopts "delivery doctrine";the sale of objects in transit adopts "contract establishment doctrine";the risk in the sale of goods in need of transport adopts "delivery carrier doctrine",while "delivery","contract formation" and "delivery carrier" are not bought.The effect of the validity of the contract of sale,therefore,the risk-bearing rule in the contract of sale has applicability to the risk-negative allocation of the damage of the subject matter under the condition of invalidity of the contract,that is,the buyer should bear the risk of the damage of the subject matter,but the essential principle of risk allocation is "where the interests are at risk",and when the contract is invalid,both parties of the seller and the buyer enjoy the same risk.As a result,the risk can not only be borne by the buyer,but also by both parties,and the invalidity of the contract is mostly due to the fault of the parties,so "fault" can be used as one of the defining factors of the risk-bearing ratio of the buyer and seller.