Transfer of risk

The legally secure transport of goods requires clear rules for the distribution of risk between seller and buyer. The transfer of risk marks the decisive point in time at which the risk of damage to or loss of the goods passes from the seller to the buyer. This guide explains the most important aspects of the transfer of risk and its practical significance for companies.

What does transfer of risk mean in the legal sense?

The transfer of risk marks the precise point in time at which the risk of damage to or loss of goods passes from the seller to the buyer. This legal regulation clarifies the question of responsibility in the event of damage. The transfer of risk is particularly important in the case of transport, where goods often travel long distances and pass through many hands. The German Civil Code (BGB) defines precise rules for when this transfer takes place.

For companies, the transfer of risk plays a central role in the design of sales contracts. The exact determination of the transfer point enables a clear assignment of responsibilities and liability risks. Legal certainty is created by detailed contractual agreements that explicitly regulate the transfer of risk. These agreements must take into account both national and international legal requirements.

Point in time of the transfer of risk according to the BGB

According to the German Civil Code, the transfer of risk generally occurs when the goods are handed over. Section 446 of the German Civil Code regulates this standard case for commercial purchases. The transfer occurs at the moment when the buyer actually obtains power of disposal over the goods. This clear temporal caesura creates legal certainty for both parties to the contract.

Exceptions to this basic rule arise in the case of special agreements or specific types of sales contract. The transfer of risk can be modified by contractual provisions, provided these do not violate mandatory law. The provisions for mail order purchases, for which special statutory provisions apply, are of particular importance.

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Special features of mail order purchases

Sale to destination as a frequent form of transport follows special rules for the transfer of risk. According to § 447 BGB, the risk passes to the carrier or the person designated for shipment when the goods are handed over. This early transfer of risk to the buyer is justified by the fact that from this point on, the seller no longer has any influence over the transport.

Special rules apply to the purchase of consumer goods. Here, the law protects the consumer with special provisions in §§ 474, 475 BGB. The transfer of risk only occurs when the goods are actually handed over to the consumer, which significantly strengthens the consumer’s position. This consumer-friendly regulation takes into account the special need for protection of private individuals.

The role of Incoterms in the transfer of risk

The International Commercial Terms (Incoterms) govern the transfer of risk in international trade. These standardised clauses create uniform conditions for commercial transactions worldwide. The Incoterms precisely define when risks and costs are transferred from the seller to the buyer. Using them significantly reduces the potential for conflict in international business.

One-point clauses

One-point clauses such as ‘Free on Board’ (FOB) are characterised by a uniform transfer of costs and risks. The transfer of risk occurs at a precisely defined point, typically when the goods are loaded. This clear regulation avoids demarcation problems and creates legal certainty for both parties to the contract.

Two-point clauses in practice

Two-point clauses such as ‘Cost and Freight’ (CFR) separate the transfer of costs and risks. This differentiation allows for a flexible design of international commercial transactions. In this case, the transfer of risk usually occurs earlier than the transfer of costs, which requires special attention when drafting the contract.

Transfer of risk vs. bearing of costs

The distinction between the transfer of risk and the bearing of costs requires special attention. While the transfer of risk concerns the risk of accidental loss, the bearing of costs regulates the distribution of transport costs. This separation allows for flexible contract design that meets the needs of the parties.

Risk management and insurance

Effective risk management at the time of transfer of risk requires well-thought-out insurance strategies. Transport insurance offers protection against loss of or damage to goods during transport. The choice of the appropriate insurance depends on various factors, in particular on the agreed point in time of the transfer of risk.

Warranty and transfer of risk

The warranty for defects is closely related to the transfer of risk. The time of the transfer of risk is decisive for the assessment of defects. Any subsequent deterioration falls within the sphere of risk of the buyer. This temporal caesura determines the scope of the warranty rights.

Practical tips for companies

Companies should take particular care when it comes to the transfer of risk. Precise contractual provisions and documented delivery processes minimise legal risks. The use of standardised clauses such as Incoterms increases legal certainty. Regular review and adjustment of insurance coverage provides protection against unexpected losses.

Conclusion: Legal certainty through clear rules

The transfer of risk requires clear legal regulations and careful contractual design. The combination of legal provisions, international trade practices and individual agreements creates a reliable framework for the safe transport of goods. Professional risk management and appropriate insurance cover complete the protection at the transfer of risk.

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