You might be wondering…

“If I have the item in my hands, don’t I already own it?”
“Who pays if the item is damaged after I’ve taken it but before ownership passes?”
“Are the rules different for consumers and businesses?”

Clients often ask me…

“If the goods are delivered to me but the contract includes a retention of title clause, can I resell them?”
“Who is responsible if the goods are damaged during transport?”
“Is it possible to physically hold an item without legally owning it?”

What the law says (Sections 2082, 2121, 2160 Civil Code)

• Section 2082: The risk of damage passes to the buyer at the same time as ownership. If ownership passes later, the seller holds the goods as a custodian until then.

• Section 2121: As a rule, the risk of damage passes to the buyer upon taking possession of the goods—even before ownership passes.

• Section 2160: For consumers, a special rule applies—ownership passes together with possession. This provides protection: at the moment the consumer takes the goods, they also become the owner.

Common mistakes and risks

• Confusing terms. Buyers believe that having the goods means owning them—yet legally they may not.

• Underestimating retention of title. The buyer may bear the risk of damage even though ownership has not yet transferred.

• Misplaced complaints. Buyers try to claim damage from the seller when the risk has already passed to them.

Step-by-step approach

For the buyer:

1. Always check when ownership transfers (it may be defined in the contract).

2. Watch out for retention of title—you may hold the goods without owning them.

3. Remember that from possession onward, you usually bear the risk of damage.

For the seller:

1. If you want payment security, include a retention of title clause.

2. Make sure the buyer understands when the risk of damage passes.

3. Clearly state these conditions in the contract.

Real-life example

A client purchased a machine with retention of title—the ownership was to pass only after full payment. The machine was delivered and shortly after was damaged during handling. The buyer assumed the seller was liable, since ownership had not yet transferred. The court ruled otherwise: the buyer bore the risk of damage from the moment of possession and had to both pay for and repair the machine.

Why DIY contracts are risky

Free “templates” rarely distinguish between possession, ownership, and risk of damage. The result? Both parties believe something different—and a dispute arises.

Lawyer’s recommendation

Always specify in the contract when ownership passes and when the risk of damage transfers. This clarity prevents unnecessary conflicts.

Practical checklist:

• Does the contract state when the buyer becomes the owner?

• Does it state when the risk of damage passes?

• Is there a retention of title clause?

• Is the wording clear for both parties?

FAQ

Can I hold an item without being its owner?
Yes—for example, when a retention of title clause applies.

When does the buyer bear the risk of damage?
Usually from the moment of possession, even if ownership has not yet transferred.

How does it work for consumers?
For consumers, possession and ownership coincide: they become the owner when they take possession.