You Might Be Thinking…

“Once I pay, it’s mine, right?”
Wrong. Ownership and risk of damage are not the same. The law distinguishes between acquiring ownership and the moment when risk passes.

Clients Often Ask Me…

• When exactly does the risk of damage pass from the seller to the buyer?

• Who is responsible for damage during transport?

• What if the buyer fails to take delivery on time?

• Can the risk be contractually arranged differently?

• How does this differ between real estate and movable property?

Risk Transfer in a Nutshell

• General rule (§ 2121 Civil Code) – risk passes to the buyer upon taking delivery.

• Transport (§ 2090 et seq.) – if the seller must dispatch the item, risk passes when handed to the carrier (if the shipment is properly labeled).

• Failure to take delivery (§ 2121(2)) – if the buyer does not take delivery although the item was made available, risk still passes.

• Real estate (§ 2130 Civil Code) – risk passes at the agreed time of takeover.

• Different agreement – parties may agree on another moment of risk transfer.

Risks and Common Mistakes

• Unlabeled shipment – the seller failed to mark the package for the buyer, and thus remained liable for damage during transport.

• Delayed takeover – the buyer failed to take delivery of machinery on time, then it was damaged by flooding. The buyer bore the risk.

• Contract without risk provision – the parties assumed the law worked differently than it does; the dispute ended in court.

How to Protect Yourself – Step by Step

1. Always specify the moment of risk transfer directly in the contract.

2. For transport, insist on clear labeling of the shipment and written proof of handover to the carrier.

3. Consider transport or shipment insurance.

4. Buyers – take delivery as soon as possible, otherwise you bear unnecessary risks.

5. Sellers – keep documents confirming dispatch and labeling.

Lawyer’s Recommendation

• For high-value goods (cars, machinery, real estate), always specify the moment of risk transfer.

• If the seller is shipping the item, they should arrange not only labeling but also transport insurance.

• Buyers should take delivery quickly and inspect the item immediately, so any damage or defects can be claimed right away.

Checklist for Clear Risk Transfer

✔ agreed moment of risk transfer
✔ properly labeled shipment
✔ transport insurance
✔ proof of dispatch and delivery
✔ prompt delivery and inspection

FAQ

When does risk pass for movable items?
Usually at delivery, or already at handover to the carrier.

What about real estate?
Risk passes at the agreed time of takeover (§ 2130 Civil Code).

Can we agree otherwise?
Yes, contractual provisions take precedence over statutory rules.

Who bears the risk if the buyer does not take delivery?
In that case, risk passes to the buyer even without physical takeover.