欧洲民法典草案消费者买卖合同风险移转研究

On Passing of Risks in the Consumer Sales Contract under the Draft Common Frame of Reference

风险移转制度是货物买卖核心制度之一,也是立法者最需要严肃对待的问题之一。基于交付主义的优越性,欧洲民法典草案明确采纳了该理论。然而,随着消费者概念的出现及消费者保护主义理念的兴起,传统的交付主义及其具体规则在适用于消费者买卖合同时,不可避免地产生问题。为此,有必要在消费者买卖合同中确立风险移转的特别规定。

The passing of risks is one of the core systems of sales contract of goods and also one of the is-sues legislators shall consider seriously. The Draft Common Frame of Reference （DCFR） has adopted theprinciple of delivery due to its advantages. However, with the introduction of the conception of consumers andthe rising of consumer protection theories, the traditional principle of delivery and its specific rules will inevita-bly cause unfairness when applied in consumer sales contract. Therefore, it is definitely necessary to stipulatespecial provisions on passing of risks in the consumer sales contract.