You Might Be Thinking…

“When I order a machine, the seller is liable until it’s delivered to me.”
Not quite. In B2B transactions, special rules apply to the transfer of risk – and it often depends on whether the machine was handed over to the carrier or received directly at the place of performance.

Clients Often Ask Me…

• When exactly does the risk transfer during transport of machinery?

• What if the carrier damages the equipment during loading?

• Can I contractually stipulate that the risk passes only after installation?

• Will an insurance policy or carrier liability help?

• How can I properly cover the risk in the purchase contract?

Legal Framework in Brief

• § 2090 Civil Code: The seller fulfils the obligation to deliver by handing the goods to the first carrier.

• § 2091 Civil Code: Delivery effects occur upon handover to the carrier, provided the shipment is properly marked or the buyer is informed.

• §§ 2121–2125 Civil Code: Risk passes to the buyer upon receipt, or even earlier if the buyer refuses to take delivery despite being enabled to do so.

• Parties may agree otherwise – especially in B2B contracts (e.g. using INCOTERMS).

How to Proceed Safely

1. Clear Contract Terms

• Specify whether risk passes at handover to the carrier or only upon receipt at the buyer’s facility.

• Use INCOTERMS (EXW, FOB, DDP, etc.) for clarity.

2. Transport Insurance

• Always arrange cargo insurance – claims are then settled with the insurer, not between parties.

3. Handover Protocol

• Require a protocol from the carrier at loading.

• Document the machine’s condition (photos, video).

4. Carrier Liability

• If the carrier was negligent, you may claim damages under the transport contract.

• Proper marking of the shipment and timely claims are essential.

Risks and Common Mistakes

• No contractual provision on risk → statutory regime applies, often unfavourable.

• Relying on verbal agreements → courts recognize only written terms.

• No insurance → high damages may remain with the buyer.

• Unclear handover protocol → makes proving where damage occurred very difficult.

Lawyer’s Checklist

✔ Define risk transfer contractually (preferably with INCOTERMS).
✔ Insist on transport insurance.
✔ Document the condition of equipment at loading and unloading.
✔ Act quickly in case of damage – deadlines for claims against carriers are short.

FAQ

If the carrier damages the machine, is the seller liable?
Not always – often the risk has already transferred to the buyer. It depends on the contract.

Can I agree that risk transfers only after installation?
Yes, parties may stipulate that contractually.

Is ordinary insurance enough?
No – arrange specific cargo insurance for high-value machinery.

What if I refuse to take a damaged machine?
If risk has already transferred, liability is still yours – documentation is crucial.