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Study on the Risks Bear in Sell-buy Contract

Author: ZhengJie
Tutor: HanQiang
School: East China University of Political Science
Course: Civil and Commercial Law
Keywords: Risks of damage and losses of the targeted matter Bearing of the risks Transfer theory
CLC: D923.6
Type: Master's thesis
Year: 2010
Downloads: 293
Quote: 1
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Abstract


In a sell-buy contract, the system of risk bear is of great significance to the parties, which is concerned with their basic rights and obligations and economic interest.The scholars and legislation around the world have different understandings and definations about this issue, which the dissention and dispute quite easily appear in it. Which party shall bear the risks of damages and losses of the targeted matter after actual risks appear is indeed the problems of risks bear in sell-buy contract.There are three major theories to dear with the issue of risk bearing :(1)when the contract is entered into, the buyer shall bear the risks.The advantage of this theory is that it think highly of parties’willing to comply with the principle of autonomy of private law, and meanwhile, it can make the buyer to receive the targeted matter as soon as possible.But on the other hand, this theory will be unfair for the buyer because it over protect the interest of seller.Therefore, most of modern countries gave it up. (2)when the ownership of the targeted matter is transferred to the buyer, the risks shall be borne by the buyer. It overcomes the disadvantages of the former theory to some extent. However, there are still defects.For example, if the seller himself has no right of disposition, the party who shall bear the risks eventually can not be be confirmed according to this theory. (3)when the targeted matter is delivered to the buyer, the risks shall be borne by the buyer despite whether the ownership is transferred or not. This theory basically solve the disadvantages of the former theories, so its widely adopted by modern countries. But itself still has its defects.As for the issue of the bearing of the risks of damage and losses of the targeted matter, Contract Law of PRC adopts the doctrine that the risks shall be borne by the buyer if the targeted matter if transferred to the buyer.Besides that, Contract Law of PRC and foreign legislation also provide some special provisions to regulate the bearing of risks. For instances,the contract refered to transportion or real estate, the stock afloat transaction and so on. We should also analyze them.However, the stipulations of Contract Law of PRC can not be so comprehensive that every case can be covered by it. In the last place, we should analyze the related provisions of Contract Law of PRC on the foundation of preceding chapters, and then, try to provide some reasonable suggestions.

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