You might be wondering…

• “If the goods are destroyed right after takeover, do I still have to pay?”

• “Can I make a claim even if the seller didn’t cause the damage?”

• “Does the same rule apply to both businesses and consumers?”

Clients often ask me…

• “I bought goods that were damaged during transport. I took delivery but haven’t paid yet. Do I have to pay?”

• “What if the damage was caused by poor packaging by the seller?”

• “Can the contract shift the risk of damage differently?”

Legal explanation (Section 2125 Civil Code)

The Civil Code states:

• Section 2125(1): Damage to the goods after transfer of risk does not affect the buyer’s obligation to pay the price, unless it was caused by the seller’s breach of duty.

• Section 2125(2): This rule does not apply if the buyer exercises the right to delivery of substitute goods or withdraws from the contract.

👉 The baseline rule is strict: once risk passes to the buyer (typically upon taking delivery), the buyer bears the damage, even if they did not cause it.

Biggest risks and common mistakes

• Buyer unaware of risk transfer. Many believe that until payment, the risk is still with the seller. That’s wrong.

• Confusing damage with defect. If it’s a defect (e.g., hidden fault), the seller is responsible. If it’s accidental damage (e.g., fire), the buyer bears it.

• Ignoring contractual terms. Parties can agree differently, but often fail to address this.

Step-by-step approach

1. Identify the moment of risk transfer – usually on delivery, sometimes upon handover to the carrier.

2. Distinguish damage vs. defect – if it’s a defect, the seller is liable.

3. Check the contract – some contracts shift the risk differently.

4. Consider exceptions – if the seller breached a duty (e.g., poor packaging), they bear the damage.

5. Act quickly – exercise the right to substitute goods or withdrawal if applicable.

Real-life example

A buyer took delivery of electronics and stored them in his warehouse. The next day, a flood destroyed the goods. Since risk had passed on delivery, the buyer had to pay the full price, even though he never sold a single unit. An exception would apply if it were proven that the seller had packaged the goods improperly or breached another duty.

Why “common sense” is risky

Many assume that until they pay, they don’t bear the risk. But the law ties risk transfer to delivery, not payment.Misunderstanding this can cost hundreds of thousands.

Lawyer’s recommendation

If you are a buyer, insist on contractual clauses on risk transfer or on insurance of the goods. If you are a seller, ensure proper packaging and documentation to avoid disputes.

Checklist:

• Do I know the exact moment risk was transferred?

• Have I distinguished between damage and defect?

• Is risk transfer or insurance contractually addressed?

FAQ

Do I have to pay for goods destroyed the day after takeover?
Yes, if risk has passed and the seller did not breach a duty.

What if the goods turn out to be defective?
That’s not damage but a defect, and the seller is responsible.

Can parties agree on a different moment of risk transfer?
Yes, they can—for example, risk may pass only after full payment.