Research On The Problem Of Risk Burden In Contracts

Under market economy conditions, sales are often filled with a series of risk that can not be avoided. Once the subject matter of contract degrades or exterminates due to the cause in fact,how to allocate the risk to both parties in contract is related to the fundamental interests of the parties. Therefore, the principle of risk burden is very important, directly related to the ability to promote the normal development of economic society, to encourage trade, to achieve the purpose of the accumulation of social wealth. In view of this, the author makes a tentative research on it,and the thesis is divided into four parts:The first part:The author mainly has a brief discussion on the theories about the risk and risk burden. In this section, the author introduces the definations of risk and risk burden and put forward the views of this article—The risk is not only about the money paid on the contract but also the damage and extermination of the subject matter. The defination of risk is the risk of money paid and the damage and extermination of the subject matter which is aroused by the subject matter of contract degrades or exterminates due to the cause in fact which the parties in contract should not take the responsibility for. The characteristic of the risk is: happen in Synallagmatic contract;the parties in contract should not take the responsibility for the risk; Benefit is damaged due to the risk.Next,the author mainly has a brief discussion on the the defination of risk burden. The defination of risk burden is the subject matter of contract degrades or exterminates due to the cause in fact ,how to allocate the risk to both parties in contract. The risk burden institution is devided into two parts: firstly, the attribution of the risk; secondly, what lawful result should be received by the one who burdens the risk.The second part: The author introduce the legitimate patterns about the risk burden,comments them briefly and generalizes the value of them. The key of the risk burden is to make clear the time-point of the risk transferring. The text will analyze the legitimate practice and the valuable summarizes from all the countries in the world. There are three parttens: the principle of founding contract, the principle of ownership, the principle of delivery. After comments this three legitimate patterns, the author considers that the principle of delivery has many advantages than the other principles. This pattern is the main trend in legislation and adopted by many countries and areas in the world. Though there are many differences in these three patterns,the patterns express the same systematic values such as to defend transaction justice, to enhance transaction efficiency, and to protect transaction safety.The third part: The author concludes some typical forms of risk burden in contract. And provide the detailed analysis of how to allocate the risk to both parties in these contracts. Firstly, by analyzing the risk burden regulation in business contract and points that the principle of delivery is adopted in business contract. The author concludes some special forms of risk burden in business contract such as risk burden in transaction of float goods, real estate, probation, installment payment and auction.Besides,the author concludes some typical forms of risk burden in contract such as leasing contract, finance lease contract, forwarders contract, the contract of carriage, custody contract and warehousing contracts. And provide the detailed analysis of how to allocate the risk to both parties in these contracts.The forth part: The author analysis the relationships between the regulation of risk burden and the regulation of liability for breach of contracts ,and how to clarifies them. The author also discusses the risk burden when the subjective matter is damaged in different breach styles. The delay of performance contains the delay in deliverance and delay in receipt.