The risk in the contract of sale of goods is the loss or damage that occurs to the goods. It can happen due to human subjective error or under the influence of objective external conditions. So how are the cases of risk transfer in the sale of goods contracts regulated? Let’s find out with Lawyer X through the following article:
Legal grounds
Commercial Law 2005
What is a commercial contract?
Although there are no specific provisions on commercial contracts in the Commercial Law; which only stipulates: Commercial activities are activities for profit-making purposes; including purchase and sale of goods, provision of services, investment, trade promotion; and other profitable activities (Clause 1, Article 3 of the Commercial Law 2005); but can understand the concept of commercial contract as follows:
Commercial contract is a type of contract which legal form of commercial act; is an agreement between two or more parties (at least one of the parties must be a trader; or the subject has the status of a trader) to establish, change; terminate the rights and obligations of the parties in the performance of commercial activities.
Features of commercial contracts
Contracts in the commercial field are similar in nature to civil contracts. Besides, it also has its own characteristics. Specifically:
Firstly, on the subject, commercial contracts are established between subjects, mainly traders.
Second, in terms of form, a contract in the commercial field can be established by word of mouth, in writing or by specific acts of the contracting parties.
Third, about the subject matter of the contract, similar to the subject matter of a civil contract, a contract in the commercial field whose subject matter is goods or services.
Cases of risk transfer in the contract of sale of goods
Transfer of risk in the event of a definite place of delivery
Under Article 57 of Commercial Law 2005: Unless otherwise agreed, if the seller is obliged to deliver the goods to the buyer at a certain place, the risk of loss or damage to the goods is transferred to the buyer. when the goods have been delivered to the buyer or the person authorized by the buyer has received the goods at that place, even if the seller is authorized to retain documents establishing ownership of the goods.
Thus, the transfer of risk, in this case, will be the time when the delivery party delivers the goods to the buyer and the buyer or buyer’s representative has received the goods. If there is any damage to the goods before that, the seller will be responsible.
Transfer of risk in the absence of a place of delivery
According to Article 58 of the Commercial Law 2005: Unless otherwise agreed; If the contract provides for the carriage of the goods and the seller is not obliged to deliver the goods at a certain place, the risk of loss of or damage to the goods passes to the buyer when the goods have been delivered to the buyer. first carrier.
In this case, the risk will be transferred from the seller to the buyer; from the moment when the first carrier is delivered by the seller. After the first carrier receives the goods, if the goods are lost or damaged, the buyer will be responsible.
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Transfer of risk in case of delivery to the consignee for delivery and not the carrier
According to Article 59 of the 2005 Commercial Law:
Unless otherwise agreed, if the goods are being held by the consignee for delivery and not the carrier, the risk of loss of or damage to the goods shall pass to the buyer in one of the following cases: this:
When the buyer receives the proof of ownership of the goods;
When the consignee for delivery confirms the buyer’s right of possession of the goods
Transfer of risk in case of purchase and sale of goods in transit
According to Article 60 of Commercial Law 2005: Unless otherwise agreed, if the subject matter of the contract is goods in transit, the risk of loss of or damage to the goods is transferred to the buyer from the date of delivery. contract point.
Buying goods in transit here is understood; If the subject matter of the goods sale and purchase contract, in this case, is the goods being transported, the buyer or seller shall purchase such goods from the seller. In this case, the risk and title of the goods will be transferred to the buyer from the time the contract is concluded.
Transfer of risk in other cases
Under Article 61 of the 2005 Commercial Law:
Unless otherwise agreed, the transfer of risk in other cases is regulated as follows:
In the cases not specified in Articles 57, 58, 59, and 60 of this Law, the risk of loss of or damage to the goods is transferred to the buyer from the time the goods are at the disposal of the buyer. and the buyer breaches the contract by not receiving the goods;
The risk of loss of or damage to the goods does not pass to the buyer if the goods are not identified by markings, transport documents, not communicated to the buyer, or otherwise identified by any means. any other way.
The above are some cases of transferring risks in the sale and purchase of goods by the law. However, the law always leaves open and recognizes the agreement of the parties in the contract; The law is prescribed to take into account circumstances that may not have been foreseen by the parties.
Frequently asked questions
To limit risks when entering into a contract of sale and purchase of goods; The parties to pay attention need to pay attention to the conditions that may occur when performing the contract. From there, some agreements provide the most favorable conditions for the parties. Please contact us if you need assistance.
Under Article 62 of the 2005 Commercial Law:
Unless otherwise agreed by the parties and provided for by law. Ownership is transferred from the seller to the buyer from the time the goods are delivered.
The risk in the contract of sale is the loss or damage that occurs to the goods. Risks
That risk may be due to human subjective error or due to objective phenomena. Such risks may cause great damage to one of the parties; When entering into a contract, the parties need to pay close attention to this risk transfer clause.
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