Transfer of risk

Definition and legal basis:

The transfer of risk refers to the point in time at which the risk of accidental loss or accidental deterioration of an item is transferred from the seller to the buyer. This moment is decisive for the question of who has to bear the damage if the item is damaged or lost through no fault of one of the parties. The legal basis for the transfer of risk can be found in the German Civil Code (BGB), in particular in Sections 446 and 447 BGB for sales contracts, as well as in special regulations such as the UN Convention on Contracts for the International Sale of Goods (CISG) for international sales contracts. The transfer of risk is a central concept in sales law and has considerable practical significance for the distribution of risk between the contracting parties.

Time of transfer of risk:

The exact time of the transfer of risk depends on various factors: 1. handover of the item (Section 446 sentence 1 BGB):
In the case of debts to be collected, the risk is transferred to the buyer when the item is handed over. This is the rule in German sales law. 2. sale by delivery to a place other than the place of performance (§ 447 BGB):
In the case of sale by delivery to a place other than the place of performance, the risk passes when the goods are handed over to the carrier, unless the buyer has specified the carrier. 3. default of acceptance by the buyer (§ 446 sentence 3 BGB):
If the buyer is in default of acceptance, the risk shall pass to him, even if the goods have not yet been handed over. 4. contractually agreed time:
The parties may contractually agree a different time for the transfer of risk.

Special features and exceptions:

There are various special regulations and exceptions to the transfer of risk: 1. sale of consumer goods (Section 475 (2) BGB):
Section 447 BGB does not apply to sales of consumer goods; the risk is only transferred when the goods are handed over to the consumer. 2. contracts for work and services (§ 644 BGB):
In the case of contracts for work and services, the risk is generally transferred upon acceptance of the work. 3. UN Sales Convention (Art. 66 ff. CISG):
In the international sale of goods, special regulations apply to the transfer of risk, which may deviate from the national regulations. 4. incoterms:
Incoterms are often used in international trade, which regulate the transfer of risk in detail.

Legal consequences of the transfer of risk:

The transfer of risk has far-reaching legal consequences: 1. risk of performance:
The buyer bears the risk of accidental loss or deterioration of the item after the transfer of risk. 2. price risk:
The buyer remains obliged to pay the purchase price, even if the item accidentally perishes or deteriorates after the transfer of risk. 3. burden of proof:
After the transfer of risk, the buyer bears the burden of proof that a defect already existed at the time of the transfer of risk. 4. relevance to insurance:
The time of transfer of risk is often decisive for insurance issues, especially in the case of transport insurance.

Practical significance and design options:

The transfer of risk is of considerable importance in practice: 1. Contract design:
Parties can contractually regulate the time of the transfer of risk and thus distribute risks. 2. logistics and transportation:
The regulation of the transfer of risk influences decisions on transport routes and means. 3. international transactions:
The precise regulation of the transfer of risk is particularly important in cross-border transactions. 4. insurance:
The transfer of risk often determines the start and end of insurance cover.

Current developments and challenges:

Digitalization and new business models pose challenges to the traditional concept of the transfer of risk: 1. Digital goods:
The traditional transfer of risk is often difficult to apply to digital content or software. 2. platform economy:
Transactions via online platforms can give rise to complex issues regarding the transfer of risk. 3. just-in-time deliveries:
Modern logistics concepts require precise coordination of the transfer of risk. 4. blockchain and smart contracts:
New technologies could automate and document the transfer of risk. In summary, the transfer of risk is a central concept in sales law that regulates the distribution of risk between seller and buyer. Its precise definition and contractual design are of great practical importance for companies and consumers. In an increasingly globalized and digitalized economy, the precise regulation of the transfer of risk is becoming even more important and often requires careful adaptation to new business models and technological developments.