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The subject contract of sale is damaged or lost the concept of risk burden Exploration


\In this paper, the subject matter of contract of sale damage, the risk of loss of the concept of burden of study, the concept of connotation of that contract of sale valid only under the premise of contract of sale to the subject matter for damage to or loss of the risk burden on the system contract is determined to be invalid or revoked, the application of the system; the same time that the parties can not be attributable to the subject matter of both objective reasons, including non-objective subject matter. \the risk of loss of the concept of burden, little controversy in civil law scholars. Scholars generally believe that, because the parties can not be attributable to the subject matter of the subject matter of contract of sale resulting from damage to or loss of damage,[link widoczny dla zalogowanych], who should pay,[link widoczny dla zalogowanych], contract of sale is the subject matter damage, loss of risk burden. My opinion, however, scholars of the concept, the following questions, there is no adequate research: first, the contract of sale effective, ineffective or revoked under the circumstances, whether the subject matter damage occurred, the loss burden of risk? Second, not attributable to the subject matter of the parties, including the content? On these two issues are discussed separately: (a) contract for the sale of effective, ineffective or is revoked, does the subject matter damage occurred, the risk of loss of burden? The problem, some scholars believe that the subject matter damage, the risk of loss after the conclusion of the burden of the contract for the sale occurs. [1] Some scholars believe that the underlying risk of credit and debt after the conclusion of the contract for the sale occurred before the liquidation. [2] two kinds of knowledge is essentially the same,[link widoczny dla zalogowanych], no valid contract of sale solution, invalid or revoked and the subject matter damage, loss of the relationship between the risk burden. But some books are clearly pointed out that risk is the subject matter of the sale after the commencement of the contract take place. [3] This understanding clearly that the only effect of the contract of sale, can we talk about risk issues, unlike the above-mentioned two kinds of knowledge, as only Maimaihetong are adopted, or after the contract of sale entered into prior to the liquidation of claims and debts, and aside contract for the sale of effective, ineffective, or revocation of the problem. The author believes that effective contract of sale, the question is invalid or has been revoked and the subject matter of the damage, the burden of loss is closely related to the risk of a major problem, its solution is the subject of damage,[link widoczny dla zalogowanych], the risk of loss question the premise of the burden of what happened. When the contract of sale is invalid or has been revoked, the legal consequences arising from that contract invalid property acquired, shall be returned; compensation for losses; take fault liability; bear administrative or criminal liability. Need to explore the question is invalid because the contract for the property, as not attributable to the subject matter of the parties caused by damaged or lost, whether the application of the risk burden of system? According to Civil Law, the return of property applies to the principle of restitution. [4] can not be returned if the obligations of how to do? In civil law, can not be returned including the fact can not be returned and could not legally return the two situations. In fact things can not be returned to the main indicators have been deformed, or damages (including loss, I added) and other qualitative changes have taken place. Can not be returned in law mainly refers to the property has been transferred to innocent third persons, bona fide third party has obtained ownership of the property. When the situation can not be returned, the receiving party to fulfill bear liability for damages. Damages only in the return of property can not be used, where applicable, the damage compensation also reflects the adoption of the principle of restitution. [5] Therefore, when the contract of sale is invalid or has been revoked, the party who made the contract null and void property, not attributable to the parties because the subject matter of the object caused by damage to or loss when the damage caused by the burden of risk can not be applied system, but for restitution or damages system. Effective when the contract of sale, the parties entered into a contract to transfer by way of compensation for equal value to the purpose of property rights protected by law, can be achieved. Valid only in the contract of sale under the premise can arise between the parties legal rights and obligations, which deliver the subject matter and pay the price. Not take place due to reasons attributable to the parties for damage caused by the subject matter, who will bear the risk of loss issue. If the burden of risk from the seller, the seller will lose the right to request the buyer to pay the price; if the burden of risk from the buyer, then the object has been made despite the damage, loss, the buyer should pay the price to the seller. This is the true meaning of the risk burden on the system. Therefore, I believe that only valid contract of sale under the premise of the subject matter because the parties can not be attributed to the subject matter of the object caused by damage to or loss when the system can apply the risk burden,[link widoczny dla zalogowanych], not for restitution or damages system .
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