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Unlocking risk allocation and equitable conversion : reform of the passing of risk in the sale of land

Christensen, Sharon A. & Duncan, William D. (2012) Unlocking risk allocation and equitable conversion : reform of the passing of risk in the sale of land. Property Law Review, 2(1), pp. 3-21.

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Abstract

The principles relating to the passing of risk under a contract for the sale of real property would seem to have been long settled. The rule under the general law is that the risk of loss of the subject matter under a contract for the sale of real property passes to the buyer upon the creation of a valid and binding contract. This article considers the origin of that rule, how it developed with the growth of equity, and advances the view that it is anomalous in a modern context of property dealings. In doing so, the article adverts to the variety of statutory mechanisms used to subvert the rule, few of which are of practical value. It concludes that the rule is outmoded in many respects and suggests a number of reforms which might be implemented nationally to bring consistency and simplicity to the issue of damage or destruction of improvements which are the subject of a land contract.

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ID Code: 50127
Item Type: Journal Article
Keywords: contract, risk, land, loss, buyer
ISSN: 1838-3858
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Property Law (excl. Intellectual Property Law) (180124)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2012 Thomson Reuters Australia
Deposited On: 09 May 2012 10:09
Last Modified: 11 May 2012 14:11

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