Risk burden of chattel ownership retention

When buying and selling land, houses, shops and other real estate, it is also necessary to transfer its ownership, so that the other party can truly own all real estate. Transfer will not be too complicated, but it will also bear certain risks. Today, Bian Xiao will introduce you to the risks of real estate ownership transfer. Article 142 of the Contract Law establishes the basic principle of risk transfer: the risk of damage or loss of the subject matter shall be borne by the seller before delivery and by the buyer after delivery, unless otherwise stipulated by law or agreed by the parties. Risk burden refers to the losses suffered by the subject matter due to reasons not attributable to any party. Note: Risk transfer adopts the principle of delivery, which applies not only to movable property but also to immovable property. (1) delivery principle: risk burden under different delivery methods: 1. In the case of actual delivery, if the goods are delivered to the door, the risk will be transferred to the buyer when the goods are delivered to the buyer; In the case of door-to-door delivery, the risk passes to the buyer when the goods are delivered from the seller; In the case of consignment, the risk shall pass to the buyer when the goods are delivered to the carrier. 2. In the case of delivery instruction, when the ownership certificate is delivered to the buyer, the risk is transferred to the buyer. In the case of simple delivery, the risk is transferred to the buyer when the contract comes into effect. (2) 1 and 143 are exceptions, and the delivery is delayed due to the buyer's reasons; 2. Article 148, where the seller fails to perform; 3. Article 144, sales of road goods; 4. Article 145, where the place of delivery is unclear; 5. Article 146, the buyer delays the delivery. In addition, we should pay attention to two issues: the seller's failure to deliver the subject matter documents and materials other than the title certificate does not affect the transfer of risk burden (Article 147). If the buyer bears the risk, it shall not affect the seller's liability for breach of contract (Article 149). (3) Don't confuse 1. In the sales contract with retention of ownership, there may be inconsistency between the risk taker and the property owner, which precisely reflects the difference between the legislative rules of delivery and ownership. For example, Party A sells a cow to Party B, which will be delivered on June 1 day, and the payment for the cow is 1800 yuan. It is agreed that Party B will pay 300 yuan every month within half a year, and after the last payment, the ownership of the cow will be owned by Party B. As a result, the cow was struck by lightning in July 1 year. At this time, the risk burden belongs to B, but the real owner of the cow is A.2. The risk-taking rules in the trial sale are also worthy of attention. For example, on May 20th, Party A delivered a Mercedes-Benz for Party B to try out, and the trial period was 2 weeks. The following analysis is as follows: (1) During the probation period, any risks shall be borne by Party A; (2) When the probation period expires, Party B indicates that it wants to buy, and any subsequent risks shall be borne by Party B; (3) After the probation period expires, if Party B fails to make any representations, the risks arising therefrom shall be borne by Party B; (4) Upon the expiration of the probation period, if Party B refuses to buy it and Party A fails to get it back immediately, Party A shall bear the prompt: after the expiration of the probation period, if Party B refuses to buy it (or fails to do so), the business between the two parties will be established, and simple delivery will occur at this time, and the risk-taking rules will be determined at this time. 3. In the case of simple delivery, four legal phenomena often occur at the same time: the establishment and effectiveness of the contract, the completion of delivery, the transfer of ownership and the transfer of risk burden. 3. The fruit should be delivered. What is produced before delivery belongs to the seller, and what is produced after delivery belongs to the buyer. For example, A sells a cow to B, and B kills the cow and sells it on the third day after delivery, and discovers bezoar, then bezoar belongs to B. The appearance here does not mean formation, but refers to the fact that in the sales contract that has retained ownership, the seller still retains ownership after delivering the subject matter to the buyer, and the buyer does not obtain ownership of the subject matter until the last loan is paid off. Then during the period from the delivery of the subject matter to the payment of the last payment, the fruits generated by the subject matter shall be owned by the buyer, not the seller (owner). Therefore, the difference between the delivery principle and the owner principle in the ownership of fruits is typically reflected in the sales contract of title retention. * * * Similarities: the transfer of ownership to Party B, the risk-taking and the ownership of fruits are based on the delivery principle, which are only applicable to contracts that transfer ownership, such as sale, reciprocity and gift, and cannot be extended to other contract types. For example, in the lease, loan and custody contract, the ownership of the subject matter is transferred to Party B, and the risk burden and the fruits generated should of course belong to the owner, and the exemption clause is not applicable. For example, in a pledge contract, if the ownership is transferred at the expiration of the contract, it is regarded as flowing, and the pledge contract is invalid and the ownership will not be transferred. The risks caused by force majeure of the pledged property shall be borne by the owner. During the mortgage period, the fruits of pledge should of course belong to the owner (pledger), but not to the possessor (pledgee). The possessor only has the right to "collect" (possess), but not to "own". If you still have legal questions about the risk of property transfer, or want to ask a lawyer for help after a similar incident, you can consult our lawyer online.