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Research On Risk Burden In Sales Contract

Posted on:2021-05-29Degree:MasterType:Thesis
Country:ChinaCandidate:J ZhouFull Text:PDF
GTID:2506306452964019Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The operation of the rule of risk burden is affected by many factors,such as definition,imputation principle and subject matter and so on.Combining "loss or damage of the subject matter" with "failure to perform" and implanting the definition of risk burden will reduce its adjustment field.On the contrary,only taking in "loss or damage of the subject matter" will lead to the expansion of its adjustment field.Compared with the fault liability,the adjustment scope of risk bearing rule under no-fault liability will be reduced.Different types of subject matter not only affect the operation field of risk burden rules,but also affect the time point of risk demarcation.The points for confirming the risk burden include "owner","debtor","creditor","contract establishment","delivery" and so on.The time point chosen by the legislator is different,so is the distribution of risk liability.The risk distribution of deliverism between the parties is more reasonable,which is a legal rule worth adhering to.The contract law of our country adopts the doctrine of delivery to the risk burden,which is the basic right choice.However,there are still shortcomings: for real estate transactions,the rules of competition between delivery and registration should be adopted to decide the transfer of risk burden,that is,if a person completes the registration or delivery,the risk is to be borne by the buyer.The provisions of articles144 and 145 should be amended,either to be discussed or to be abridged.There are some deficiencies in the rules of risk bearing under the trial contract,which belong to legal loopholes and should be filled.Considering the substantial inequality of the status between enterprises and consumers,it is advisable to adopt the ownerism for the risk burden in the trial stage.
Keywords/Search Tags:sales contract, risk burden, delivery, liability for breach of contract, imputation principle, subject matter
PDF Full Text Request
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