The Burden of Risk before and after Rescission

• Main Authors: LIN HSUAN-FENG, 林軒鋒
• Other Authors: YOU CHIN-FA
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/32645432129223524547

碩士 === 國立臺北大學 === 法律學系法律專業組 === 103 === The burden of risk is an important issue of contract law. Majority opinion premised on both of parties are innocent. In order to figure out the burden of risk with integral view, this thesis does not premise on it anymore. This thesis tries to figure out the burden of risk with integral view by following steps: firstly, to make sure what debt the parties to the contract have to perform. Secondly, to make sure whether there will be impossibility of performance or not, and then to survey what disadvantages may occur. Finally, to trace whether it will shift to the other party by other methods or not. The person who ultimately takes the disadvantages is the person who bears the risk. After figuring out the burden of risk with integral view, this thesis tries to review the relevant sections of our civil code including whether the culpability is essential to the damages claim and the right to rescission of contract, in addition to the adequacy of section 262 regarding the loss of right of rescission by means of the result which has been mentioned earlier. In conclusion, this thesis tend to remain the culpability as a requirement to the damages claim and not to the right to rescission of contract. Additionally, The section 262 regarding the loss of right of rescission is not adequate.