《合同法》第142条(交付移转风险)评注

Comments on Art.142 of Contract Law( Passing of Risk by Delivery)

《合同法》第142条是买卖合同价金风险移转的一般规则。"标的物毁损灭失的风险"仅指价金风险,应与物权风险、给付风险相区分。交付移转价金风险,突破了双务合同之牵连性,其正当性在于,在买卖双方内部,买受人借交付成为物之经济利益归属主体。移转风险之交付,不限于现实交付,也涵括观念交付。风险移转在合同效力、给付障碍、类推适用等方面也有其体系影响。

Art. 142 of the Contract Law of People’s Republic of China is the basic rule of passing of the sale price risk."The risk of accidental destruction and accidental deterioration" means only price risk( counter-performance risk), which should be distinguished from property risk and performance risk. Passing of risk by delivery breaks the correlation of bilateral contract. The reason of this exception lies in that the buyer become the owner of the economic interest of the thing of sale at the time of delivery."Delivery" here includes not only physical delivery, but also delivery-substitute. With regard to contract validity, non-performance and analogy application, this norm also has systematic impacts.