You Might Be Thinking…

“If I don’t physically have the item yet, the seller hasn’t fulfilled their obligation.”
But under the law, it’s different – the seller may fulfill their duty by handing the goods over to the first carrier.

Clients Often Ask Me…

• When is the item legally considered delivered?

• Must the shipment be labeled?

• What if the seller doesn’t notify the buyer about shipping?

• When does the risk of transport pass to the buyer, and when does it stay with the seller?

• What are the implications in B2B contracts?

Legal Framework in Brief

• Section 2090 Civil Code: The seller fulfills the delivery obligation by handing the goods to the first carrier. The buyer then has rights against the carrier under the transport contract.

• Section 2091 Civil Code: Delivery is effective once the goods are handed over, provided the shipment is clearly and sufficiently marked.

  • If not marked, the seller must notify the buyer without undue delay and identify the shipment.

  • If they fail to do so, delivery is deemed complete only once the carrier actually delivers the goods to the buyer.

Practical Scenarios

1. Properly Marked Shipment

• The seller hands over goods to the carrier → obligation fulfilled.

• Risk of damage transfers to the buyer (unless agreed otherwise).

2. Unmarked Shipment

• Delivery is not fulfilled upon dispatch.

• Buyer can claim ownership only once the goods are physically received.

3. International Trade

• Often combined with Incoterms clauses (EXW, FOB, CIF…).

• These specify exactly where costs and risks are transferred.

Risks and Common Mistakes

• Unmarked shipment → disputes over whether the obligation was fulfilled.

• No proof of handover → buyer cannot assert rights against the carrier.

• Missing Incoterms clause → uncertainty in international transport.

• Confusing “delivery” with “handover” → legally distinct concepts!

Lawyer’s Checklist

✔ Specify in the contract whether the seller must deliver or ensure receipt of the goods.
✔ Require clear labeling of shipments.
✔ Agree on Incoterms in cross-border deals.
✔ Request written notice of dispatch and proof of handover to the carrier.

FAQ

When do I gain rights against the carrier?
Immediately upon the seller handing the goods to the carrier.

What if the goods are damaged in transit?
If risk has passed, the buyer must claim against the carrier. If not, the seller remains liable.

Does this apply to consumer online purchases too?
Consumers often enjoy stronger protection – risk usually transfers only upon personal receipt.