On The Risk Burden In The House Sale Contract

The risk burden of the subject matter has always been a core issue in the sales contract,delivery is also the core performance in the sales contract.although contract law has clearly stipulated the risk burden,but legal provisions do not clearly distinguish between movable and real property.Discussions on the burden of risk in the academic world are also mostly limited to movable property,when real property is damaged or lost,it often leads to controversy due to the lack of specific applicable rules,The disputes arising cannot be properly resolved,and the parties cannot explain in a timely manner.Although in practice the burden of risk is the deliveryism to which Article 142 of the Contract Law is applied,there are still different voices in the academic world.This article will analyze the typical houses in real estate,through the basic analysis of the risk burden theory and the analysis of Article 142 of the Contract Law,explore the general rules and specific explanations of risk burdens in house sales contracts,and put forward their own views on some special situations in practice.The full text is divided into four parts:the first part explores the basic definition of risk and the basic theory of risk burden rules,including the definition and substance of risk,compare the strengths and weaknesses of the risk burden rules set out in legislation,risk burden rules applicable in China.The second part is based on the premise of deliveryism,analysis of the normative positioning of Article 142 of the Contract Law,prerequisites and scope,By analyzing and discussing the advantages of deliveryism over ownershipism,infer the legitimacy of the risk of deliveryist transfer prices.The third part discusses the relationship between risk burden and liability for breach of contract,risk burden and default liability as two separate systems,there is still a lot of connection on the details,the two systems do not affect the application of the law,Cooperate with each other to satisfactorily solve the risk burden caused by the loss of the target.The application of the liability for breach of contract is different due to the principle of liability,imputation principle to distinguish liability for breach of contract,also determining the scope of the liability for breach of contract,The scope of the liability for breach of contract and the scope of the burden of risk present a declining relationship,with risks outside the breach.The fourth part explores the special situations in house buying and selling,multiple housing purchases,Risk burden of selling leased homes and mortgaged commercial homes,through the purposeful limitation of Article 11 of the Interpretation of the Contract for the Sale of Commercial Houses and the analogous application of the second half of Article 148 of the Contract Law,analyze and infer who should bear the risk when there is multiple buying and selling in house buying and selling.And the relationship between the seller,the buyer,and the lessee involved in selling the house in the lease,if the actual occupier after delivery in the surface sense is the lessee,deliveryism at the risk of the lessee,obviously unfair,if at this time according to the concept delivery method,it is considered that the seller has "delivered" the house to the buyer through the concept delivery,and it is more reasonable to apply deliveryism to bear the risk by the buyer.