Comparison Study On Risk Transfer Under Breach In International Trade

In the international goods selling and buying, the risk responsibility of contract breach is an un-negligible problem. Different economic measurements will result in different legal effects, furthermore, it will influence the risk transfer. The related international treaty, convention and every national law have give stipulations for risk transfer under contract breach from different aspects.Generally speaking, if seller and buyer have prescribed the responsibility of the risk, naturally they should follow when it happens. If they have not, then Risk bearing party should be decided according to the related Law Clauses. In most countries, international legislation and international conventions, principles of delivery is risk transfer. But, if the buyer and seller breach the contract, principle of delivery will never be risk transfer. This article is focus on the influence of risk transfer when either buyer or seller breaches the contract.Regarding the influence of risk transfer with the Seller's default, we can summarize into two points: 1. When sellers defaulting the contract completely, and buyer refuse to take the goods according to the terms and conditions in the contract. The risk loss will be born by the seller. 2. When seller's performance for the contract just defaults some terms and conditions, even if seller defaults the contract completely, the buyer will still accepts the goods instead of declaring the rescission of contract on the basis of his interests. The buyers' promise to take the risk does not mean that the sellers' breach responsibility can be exempted. There are some limitations for buyers' refusal taking goods and rescission.If buyers default, goods can not be delivered, the risk can not be transferred to buyers (buyer refusing to take the goods, to do the payment, to accept delayed delivery).Buyers not only take the responsibility of breach but also good risk responsibility. For buyers' breach, generally, every country has its own stipulation that time of breach contract is time of goods risk transfer. Of course, there are some limitations for buyers advance taking risk of breach contract.One party defaults, the other party should fulfil his duty towards the goods, otherwise, the risk can not be transferred as prescribed. Such as, when buyers do not want to take the goods, sellers should keep the goods well and try to find out other sales way thus to minimize the risk loss.This article has compared and contracted some typical and widely-used principles, such as "Uniform Commercial Code" "Sales of Goods Act 1979""United Nations Convention on Contracts for the International Sales of Goods (CISG)" "Internation Rules for Interpretation of Trade Terms 2000" and main comparison focus on the following points (1) to compare the difference in the meaning of breach and risk transfer the reason for their emergence, the scope for using ect. (2) Under breach, whether the risk can be transferred, how to transfer the risk and which party will bear the risk loss. (3) compared with foreign legislation, what the disadvantages in ours regarding risk transfer when breach contracts happened. In the meanwhile put forward the author's opinions towards the disadvantages and problems in the existing Contract Law of our country.