home Audience 4 Risk of accidental death. Features of the risk of accidental loss or accidental damage to goods

Risk of accidental death. Features of the risk of accidental loss or accidental damage to goods

N.I. KRASNOYAROV,
Candidate of Legal Sciences, Associate Professor of the Department of International Law, Institute of State and Law, Tyumen State University

Of the variety of cases of direct use of the term “risk” in the Civil Code of the Russian Federation, along with business, gaming and insurance risks, liability risk is highlighted. The concept of liability risk is a hitherto undeveloped element of the legal classification of risks. Fulfillment of obligations under contracts of purchase and sale, delivery, exchange in domestic and foreign circulation is associated with significant (critical) risks of loss or damage to the goods due to an objective event. Therefore, it is important how the rights of the other party, who does not bear the risk, are protected when these negative consequences occur.

The Civil Code of the Russian Federation provides for the possibility of transferring the risk of accidental loss or accidental damage to goods both to the buyer - the owner of this product, and to the buyer who is not the owner of this product. According to paragraph 1 of Art. 459 of the Civil Code of the Russian Federation, the risk of accidental loss or accidental damage to the goods (unless otherwise provided by the contract) passes to the buyer from the moment when, in accordance with the law or the contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer.
Civil law category Art. 458 of the Civil Code of the Russian Federation “transfer of goods to the buyer” includes the following acts of fulfillment of the delivery obligation by the seller:
· provision of goods identified for the purposes of the contract at the location of the goods;
· handing over the goods to the carrier for delivery to the buyer;
· delivery of the goods to the destination specified by the buyer, with subsequent delivery of the goods to the buyer.
Based on the comparative interpretation of the provisions of Art. 67(1) of the Vienna Convention of 1980 (hereinafter referred to as the Vienna Convention) and the latest edition of the International Rules for the Interpretation of Trade Terms “Incoterms 2000” (hereinafter referred to as Incoterms), then the unified category “transfer of goods to the buyer” includes similar acts of fulfillment of an obligation only with greater differentiation the procedure for sending the goods itself, namely:
· placing, in the physical sense, the properly individualized goods as the goods that are the subject of this contract, at the disposal of the buyer at the place of business of the seller (EXW);
· delivery of goods to the first carrier, when the seller is not obliged to hand over the goods at a specific place for transfer to the buyer in accordance with the sales contract (FCA, CIF, CPT);
· delivery of goods to the carrier, when the seller is obliged to hand over the goods to the carrier at a specific place for subsequent transfer to the buyer (FAS, FOB, CIF, CFR);
· delivery of goods to the destination with subsequent provision of goods at the disposal of the buyer (DAF, DES, DEQ, DDU, DDP).
When it comes to the delivery of goods to a carrier, then in external and internal circulation this is understood as the transfer by the seller of possession of the goods to the buyer in the legal sense, but without the transfer of physical possession of the goods themselves, i.e. the presumed abstract transfer of an individualized product to the buyer with the help of a carrier.
The modern Russian regulation of the transfer of risk of accidental loss of goods in the Civil Code of the Russian Federation does not diverge from the theories of the transfer of risk on which the Vienna Convention and Incoterms were designed. According to the first theory - the theory of control during export sales - the risk passes to the buyer from the moment the goods leave the control of the seller. This occurs when the goods are directly placed at the disposal of the buyer (EXW), or when they are handed over to a transport organization hired by the buyer (FAS, FOB, FCA), or when the goods are transported by the seller’s vehicle.
The second theory, called the theory of non-splitting of transit risks, connects the imposition of risks that the goods may be exposed to during multimodal transportation and transshipment with the moment of delivery of the goods to the first carrier. However, it is known that in global trade the buyer under a CIF contract never bears the risk of inland transport. When selling goods in transit, the risk may pass to the last buyer even from the moment the goods are handed over to the carrier, in fact, before the conclusion of the sales contract (Article 68 of the Vienna Convention). In the conventional norms, the issues are resolved in this way because only the buyer has the actual ability to establish the extent of damage to the goods during long-term sea transportation, often with a change of consignee (according to the documents of title in his possession). Only the buyer, according to the developers of the Vienna Convention, has the opportunity to timely file claims and claims against the carrier and the insurance company.
In paragraph 2 of Art. 459 of the Civil Code of the Russian Federation, the issue of the transfer of the risk of accidental loss or accidental damage to goods during its sale during transportation is resolved in one, but dispositive, version - from the moment of concluding a purchase and sale agreement, unless otherwise provided by such an agreement or business customs. In Art. 68 of the Vienna Convention, this issue is resolved in two ways: according to the general rule - from the moment the contract is concluded, and as an exception from the general rule - from the moment the goods are delivered to the carrier.
Russian regulation of the transfer of risk for cases of sale of goods in transit with an obligation to deliver is considered as an unjustified burden on “a non-owner buyer who has not committed any violations of the purchase and sale agreement with the risks of accidental loss or damage to the goods,” and in the interpretation of the first paragraph of clause 2 of Art. 459 of the Civil Code of the Russian Federation is proposed to limit the transfer of risk only to cases of sale of goods in transit without the obligation to deliver them to the buyer. This opinion is more than controversial. In the said norm, Art. 459 of the Civil Code of the Russian Federation clearly states the possibility of directly or indirectly (through reference to business customs) stipulating in the contract the time at which the risk of loss of the goods sold en route passes to the buyer other than the moment of conclusion of the contract. Consequently, the proposed interpretation may lead to an improper use of judicial discretion. It also does not follow from the theoretical principles of the normative definition of the moment of transfer of risk in the Vienna Convention and the Civil Code of the Russian Federation that the absence of violations of the purchase and sale (supply) agreement in the actions of the risk-bearing party is the basis for creating legal advantages for it and, in connection with this, transferring risks to the other party of the obligation .
When interpreting the convention norm, the concept of risk is defined as failure (loss or damage) of the sold goods, which occurred regardless of the actions of the parties to the contract due to accidental events or force majeure circumstances. The term "risk" is identified with unfavorable consequences.
On the stated topic, risk in a contractual obligation is proposed to be understood as “the likelihood of losses not subject to compensation at the expense of the other party to the obligation.” A more adequate interpretation of the law before the start of market regulation of the Russian economy is to define the seller’s risk as the obligation to provide the counterparty with an equivalent of this product, regardless of the counter-provision or deprivation of the right to the equivalent, and if fulfillment on the part of the buyer has already followed - as the obligation to return everything received under the transaction. The above definition of the risk of accidental loss of goods suffers from incompleteness. In particular, it does not disclose the risk of the buyer-debtor to pay the price when he has not received the goods and will not receive them. Subsequently, this gap in the definition of risk was eliminated. According to some authors, bearing the risk means (depending on who bears the risk by law or by agreement of the parties) that the seller has no right to claim payment of the purchase price or is obliged to return to the buyer the amount of money already paid, or that the buyer is obliged to pay the seller the purchase price , without having the right to demand reciprocal provision from him. This conclusion takes into account the risks of fulfilling the obligation to pay the price of the goods in the form of a sum of money, but does not take into account the imposition on the seller of the risks of repeated delivery of the goods in kind when using established international trade terms regarding the delivery basis with delivery of the goods to the destination or when concluding in domestic circulation purchase and sale agreements, supplies with delivery obligations.
The official commentator on Incoterms from the International Chamber of Commerce, Jan Ramberg, notes: “Where the seller accepts the obligation to deliver goods under the terms of one of the terms of group D and if the goods are lost during carriage, he retains the obligation to fulfill the contract by providing replacement goods as soon as possible.” Consequently, if the risk of accidental loss (damage) of goods in accordance with the selected term of group D (arrival) (DAF, DES, DEQ, DDU, DDP) Incoterms or a similar term of the contract is assigned to the supplier, the supplier retains the duty to restore the delivery in replacement of the damaged or lost goods.
It seems that when determining the legal nature of the risk of accidental loss or accidental damage to goods, it is necessary to consider the fulfillment of contractual obligations as a sequential process, when each of the parties to the obligation is in one obligation in the status of a creditor, and in the other - in the status of a debtor, but the fulfillment of the obligation is carried out through actions only parties in the status of debtor.
The commercial content of the seller's or buyer's debt remaining at risk as an amount of material assets that should be transferred to the other party to the obligation without reciprocity is expressed by the verbal formula “price of risk.” Fulfilling the obligation to supply a new batch of goods to replace the lost one is the price of the supplier's risk due to accidental phenomena. Therefore, when concluding a contract under Group D conditions, a strong recommendation to the seller to protect himself “from the risks of violation or non-fulfillment of the contract by including in the sales contract an appropriate force majeure clause or other clause on exemption from liability” acquires practical significance. Note that in modern legal experience, these types of risks are eliminated (from the Latin eliminare - to expel) only legally competent force majeure clauses and clauses on the exclusion of liability, which do not have the properties of obvious injustice.
We consider the risk of accidental loss or accidental damage to goods while the supplier remains in debt to restore supplies as a type of liability risk. First of all, for the seller's failure to fulfill the obligation to supply the replacement goods, a claim may be brought against him due to failure to fulfill a contractual obligation. At the same time, if the obligation to supply replaceable goods due to the events of the case did not arise for the counterparty due to the chosen basis, then if one transport shipment is not received under a goods exchange transaction under FCA terms, the injured party should make claims not against the counterparty, but against the carrier (case No. 1/1998; decision dated June 19, 2002).
The seller's risk price for accidental loss or accidental damage to the goods does not include other risks (the risk of late delivery, the risk of failure to fulfill contractual delivery obligations for other reasons). After the liability risk has been transferred to the buyer, the seller’s liability for failure to fulfill its contractual obligations not covered by the risk is not excluded. For example, if the risk of deck cargo getting wet during sea transportation under certain Incoterms (FCA, FAS, FOB, CFR, CIF, CPT, CIP) is borne by the buyer, if this product also contains manufacturing defects, regardless of whether such defects exist significant or non-material violation of the international purchase and sale agreement, the buyer has the right to present a corresponding claim to the seller. Manufacturing defects in the goods shipped by the supplier are not affected by the buyer's risk of accidental damage to the goods during transportation by sea and, therefore, are not assigned in terms of groups F (main carriage not paid) and C (main carriage paid) to the buyer.
In the absence of other contractual provisions, the fulfillment by the seller of the obligation to supply the goods also means that all subsequent risks and associated costs are borne by the buyer. The cost of subsequent risks, for example in international trade, includes additional transshipment costs due to political events or worsening weather conditions when the previously agreed route turns out to be unacceptable.
The price of the buyer's risk due to incidents when the seller delivers goods loaded in proper condition on the terms of one of the terms of group F or C (when, subject to other requirements of the delivery basis, the buyer bears all risks from the moment the goods are transferred to the carrier), consists of keeping the buyer debt to pay the price of the goods in the form of a sum of money agreed upon under the contract, regardless of the own costs of purchasing the goods upon receipt of the latter in a condition that does not comply with the terms of the contract, if the loss or damage was not caused by the actions or omissions of the seller. Therefore, the buyer's risk is also an obligation.
In the practice of resolving disputes by commercial arbitration, claims are mainly brought against buyers. Consequently, the bearers of the risks under consideration are mainly buyers of goods.
Once the risk has passed to the buyer, he is not released from the obligation to pay the price of the goods when the loss or damage to the goods supplied under the FCA contract was not caused by the actions or omissions of the seller (case No. 342/1998; decision dated 05.17.99) . If a shortage of goods delivered on the FCA basis is detected at the place of destination, in the absence of omissions from the seller, the buyer retains the debt to pay the entire cost of the goods (case No. 487/1996; decision dated 03/11/98).
When the goods cross the ship's rail at the port of loading in good condition (as confirmed by a clean on-board bill of lading), even in the event of eventual (from the Latin eventus - case) damage to the goods after this point, the risk of such damage under the FOB contract from the port of shipment passes to buyer. Therefore, the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC) recognized as unfounded the buyer’s references (as a basis for partial payment for goods) to receiving the goods at the port of destination in a damaged condition (case No. 222/2000; decision dated 08.20.2001). If the buyer delays in fulfilling the obligation to accept the goods duly individualized by the seller under the contract on FOB terms, the buyer bears the risk of the goods becoming wet during their storage at the port of loading after the expiration of the date established in the contract for the buyer to provide the vessel to the port of shipment (case No. 328/1994; decision dated 02.10.96).
The absence of a reference to the basis of delivery in the contract naturally makes it difficult to establish a party's status as a debtor with respect to risks, even when the parties have decided to consider the date of the bill of lading as the delivery date. The risk of partial loss of goods, as the arbitrators decided, passed from the seller to the buyer upon transfer of the goods to the first carrier, i.e. at the time of transfer of the goods at the port of Calcutta, where the goods were shipped (case No. 9/1998; decision dated 10/22/98).
When the fact of proper fulfillment by the seller of the obligation to ship the goods under the contract on CIF terms was confirmed by relevant documents, and the goods arrived at the port of destination unfit for consumption, when filing a claim for damages, the buyer must prove that at the time of transfer of risk the goods did not meet the quality characteristics, stipulated in the contract (case No. 266/1997; decision dated 05.17.99).
The risk-bearing buyer does not have the right to demand a refund of the prepayment made. At the same time, the clause in the contract on CIF terms regarding the seller’s return of the price paid for the insured goods if they do not arrive at the port of destination within 180 days from the date of shipment was regarded by the ICAC as voluntarily assumed by the seller of the consequences for failure to deliver the goods within the agreed period to the customs territory Russian Federation. And the seller’s failure to fulfill this condition clearly formulated in the contract entails his liability for losses, unless he has proven that such failure is caused by force majeure (case No. 385/1998; decision dated 10.18.99). In our opinion, with the help of the above clause on the foreign seller taking on the risk of loss of ownership of the advance payment amount, the liability risk of loss of goods due to non-arrival in the country of import falling on the buyer according to the CIF delivery basis chosen in the contract was legally flawlessly eliminated, i.e. excluded.
The content of the debtor's burden in the event of an obligatory risk of loss, damage to the goods due to the occurrence of a simple case or a mixed case (if the thing is accidentally lost or damaged at a time when the debtor is in arrears) has its own legal characteristics. Since the debtor, due to the action of the case, retains the debt to deliver (pay the price), the obligation can be considered not to lose its identity (from the Latin identicalus - identical, identical). The risk-bearing seller must provide another product of the same type instead of the original product. Thus, the debtor's provision remains the same. But, while maintaining its identity, the seller’s obligation still changes (in terms of delivery time, loading point, price, loading cost, etc.). Consequently, the risk, the consequence of which is not the termination of the previous obligation, but only its change due to the action of the case, is rightfully considered as obligatory also because it is inextricably linked with the original contractual obligation of the party in the status of a risk-bearing debtor, the result of which has not been achieved creditor.
Based on the foregoing, we come to the conclusion: the essence of the liability risk under study is not losses, but the unilateral real provision of goods, payment of the price of goods in accordance with the initially agreed terms of the contract without the right to demand counter-equivalent provision.
It seems that the legally enforceable right of claim of a non-risk-bearing creditor after loss or damage to the goods due to an accident is the basis for the creditor to exercise the third power of the subjective right to protection in a protective legal relationship in order to forcibly restore the lost delivery or obtain payment of its price or confirm the right of non-return received payment of the price of the goods without restoration of the lost delivery.
In order to protect the conclusions drawn, it is not possible to agree with the judgment about the category of risk in the Civil Code of the Russian Federation in all cases only as a combination of two components: 1) the threat of accidental loss (damage) of property and 2) the occurrence of damage as a result of the influence of external forces or the internal properties of the property itself. property that, from the point of view of civil law, cannot be attributed to its shortcomings.
In UK case law, for example, special types of risks are identified, including those associated with the properties of goods transported by sea: the risk of deterioration of the goods during transportation and the risk of transporting dangerous goods.
In the case of Mash & Murrell Ltd. v. Joseph / Emanuel Ltd. Judge Diplock stated the rule: “The buyer bears the risk only for extraordinary deterioration of the goods due to abnormal conditions of transportation. The seller is usually responsible for the necessary and inevitable deterioration of the goods during transportation, making them unfit for sale at the time of arrival.”
In the case of Effort Shipping Co Ltd v Linden Management SA and Another, The Giannis IVK, the question of whether the liability of a shipper of dangerous goods for losses and expenses resulting from the shipment of goods of a special nature depends on his knowledge of the nature of the goods was decided against shipper. And although, without the knowledge of the shipper and carrier, the cargo (processed peanuts) was affected by khapra beetles during transportation on board the ship, the court decided the case in favor of the carrier, who was forced to dump into the sea not only the cargo of peanuts, but also the wheat damaged by the beetles, which was also on board in quality of cargo. In paragraph 6 of Art. IV of the Hague Bill of Lading Rules states: “Goods of a flammable, explosive or simply dangerous nature for unloading... may at any time before fulfillment of obligations be dumped, or destroyed, or harmlessly abandoned by the carrier without compensation, and the shipper of such goods will be liable for all damages and costs (expenses) directly or indirectly arising or resulting from such shipment.” Risks of accidental loss, accidental damage to goods of a special nature, as well as ordinary goods, during complex sea transportation, assigned to the exception of the general rule of Art. 67(1) of the Vienna Convention not on the buyer, but on the seller, remain nevertheless liable. In these cases, a different approach to determining the status of the non-risk-bearing party to the obligation takes place.
The category of obligatory risk of accidental loss or accidental damage to goods in the Russian legal system is a legal means of aggravating the debtor under the obligation by repeating the delivery without payment or making payment without the arrival of the goods. The eventual occurrence of losses on the part of the risk-bearing party after the fulfillment of an identical obligation to supply (pay for) goods does not change the obligatory nature of the risk of the party to the obligation in the status of a debtor in the event of eventual loss or damage to the goods. On the contrary, in this capacity it creates the basis for protecting the rights of the party to the obligation in the status of a creditor who does not bear this risk. The dispositive nature of the provisions of the legal system of the Russian Federation on eventual risk makes possible the legal management of this type of risk.

Bibliography
1 See: Volkova I.A. Insurance of business risk in civil law of Russia: Author's abstract. dis. ...cand. legal Sci. - M., 2004. P. 18.
2 See: Antipov N.P., Kastryulin D.F. Transfer of the risk of accidental loss or damage to goods under an international sales contract: theoretical aspect // International public and private law. 2003. No. 3. P. 52-53.
3 See: Antipov N.P., Kastryulin D.F. Decree. Art. P. 54.
4 Commentary on the Civil Code of the Russian Federation. Part two (item by article). - M., 2003. P. 14 (author of the commentary on Article 459 of the Civil Code of the Russian Federation - I.V. Eliseev).
5 See: Vienna Convention on Contracts for the International Sale of Goods. A comment. - M., 1994. P. 157 (the author of the commentary to Chapter IV is O.N. Sadikov).
6 See: Gribanov V.P. Purchase and sale agreement under Soviet civil law. - M., 1956. P. 33.
7 Arkhipov D.A. Experience of risk theory in contractual obligations // Current problems of civil law. Vol. 9. - M., 2005. P. 399.
8 See: Haskelberg B.L. Transfer of ownership under a purchase and sale agreement in Soviet civil law: Author's abstract. dis. ... Doctor of Law. Sci. - L., 1950. P. 390.
9 See: Haskelberg B.L., Rovny V.V. Individual and generic in civil law. 2nd ed., revised. and additional - M., 2004. P. 108-109.
10 ICC Commentary on Incoterms 2000. Interpretation and practical application. ICC Publication No. 620 / Trans. from English - M., 2002. P. 44.
11 Ibid. P. 48.
12 See: Practice of the International Commercial Arbitration Court at the RF Chamber of Commerce and Industry for 2001-2002. / Comp. M.G. Rosenberg. - M., 2004. P. 388-389.
13 See: Vienna Convention on Contracts for the International Sale of Goods. Commentary (the author of the commentary on Article 70 of the Convention is O. N. Sadikov). P. 165.
14 See: ICC Commentary on Incoterms 2000. P. 75.
15 See: Practice of the International Commercial Arbitration Court at the RF Chamber of Commerce and Industry for 1999-2000. / Comp. M.G. Rosenberg. - M., 2002. P. 96.
16 See: Arbitration practice of the International Commercial Arbitration Court at the RF Chamber of Commerce and Industry for 1998 / Comp. M.G. Rosenberg. - M., 1999. P. 79-80.
17 See: Practice of the International Commercial Arbitration Court at the RF Chamber of Commerce and Industry for 2001-2002. pp. 130-132.
18 See: Arbitration practice of the International Commercial Arbitration Court at the RF Chamber of Commerce and Industry for 1996-1997. / Comp. M.G. Rosenberg. - M., 1998. S. 102-103, 109.
19 See: Arbitration practice of the International Commercial Arbitration Court at the RF Chamber of Commerce and Industry for 1998, pp. 189-191.
20 See: Practice of the International Commercial Arbitration Court at the RF Chamber of Commerce and Industry for 1999-2000. pp. 93-95.
21 See ibid. pp. 159-162.
22 See: Essays on commercial law: Sat. scientific tr. / Ed. E.A. Krasheninnikova. Vol. 13. - Yaroslavl, 2006. P. 66.
23 See: Karkhalev D. Subjective right to defense // Arbitration and civil process. 2008. No. 1. P. 10.
24 See: Rovny V.V. Reflections on property rights and the risks of loss (damage) of property in a contract // Civilistic Notes: Interuniversity. Sat. scientific tr. Vol. 4. - M., Ekaterinburg. 2005. P. 43.
25 Schmitthoff K. Export: law and practice of international trade. - M., 1993. P. 76.
26 Law of International Trade. Textbook. Old Bailev Press. 2000. R. 339-340.

According to the terms of the supply agreement, it is provided: Delivery of goods to the Buyer’s address can be made in one of the following ways: - by a carrier or a communications organization at the Buyer’s expense; - by the Supplier’s transport. Specific delivery conditions are agreed upon by the Parties when agreeing on the application. If it is not determined what type of transport or under what conditions delivery is carried out, the right to choose the type of transport or determine the conditions for delivery of the goods belongs to the Supplier. If the delivery of goods by a carrier or communication organization is paid by the Supplier, the Buyer, at the request of the Supplier, is obliged to compensate the Supplier’s costs for transporting the goods. When delivering goods to the Buyer with the involvement of a carrier or communications organization, the Supplier’s obligation to deliver the goods is considered fulfilled from the moment the goods are handed over to the carrier or communications organization for delivery to the Buyer. When delivering goods with the condition that they be delivered by the Supplier's transport to the Buyer's location, delivery is considered completed from the moment the goods are received by the Buyer. Ownership of the goods and the risks of accidental loss and/or accidental damage to the goods pass from the Supplier to the Buyer from the moment the Supplier fulfills the obligation to deliver the goods. Under these terms of the contract, taking into account that delivery occurs with the involvement of a carrier, the supplier chooses the carrier. He also pays for transportation services when the obligation to supply the goods is considered fulfilled, and the risks of accidental loss or accidental damage to the goods have been transferred. From the moment the goods are handed over to the buyer at his location or from the moment the goods are handed over to the carrier for delivery to the buyer? Does it matter in this case who chooses the carrier and pays for its services?

Answer

The obligation to deliver the goods and the transfer of the risk of accidental loss and accidental damage to the goods will be considered fulfilled from the moment the goods are transferred to the carrier for delivery to the buyer.

“The risk of accidental death or accidental damage to property is borne by its owner, unless otherwise provided by law or contract (). By virtue of Article 223 of the Civil Code of the Russian Federation, the right of ownership of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or contract. Thus, the risk is borne by its owner from the moment of receipt of the goods.

The provisions of the Civil Code of the Russian Federation on the purchase and sale agreement clarify: as a general rule (), the risk of accidental loss or accidental damage to the goods passes to the buyer from the moment when, in accordance with the law or the contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer (for more details, see) . However, the buyer and seller may, by agreement, establish a different moment for the transfer of the risk of accidental loss of the goods.*

There are several ways to determine the special moment of transfer of the risk of accidental loss of goods in a sales contract:

indicate a moment other than that provided for by the Civil Code of the Russian Federation, after which the seller will be considered to have fulfilled his obligation to transfer the goods to the buyer ();
indicate a moment other than that provided for in the Civil Code of the Russian Federation when the risk of accidental death or accidental damage to the goods passes (for example, use the phrase “The risk of accidental death passes to the buyer from the moment ...”).

What terms of the contract are beneficial to the seller?

The interest of the seller of goods is to remove liability for possible accidental death or accidental damage to the goods as early as possible. This can be done using one of the following conditions.

1. The risk of accidental loss or accidental damage to the goods passes to the buyer from the moment the seller delivers the goods to the first carrier or organizes communication for delivery to the buyer

After such transfer, the seller, despite accidental loss or damage to the goods, will be able to demand payment from the buyer for the goods transferred to the carrier or communication organization.*

Example from practice: despite the fact that the buyer did not actually receive the goods, the court recovered payment from him, since under the contract the seller’s obligation to transfer the goods to the buyer was considered fulfilled at the moment the goods were handed over to the carrier

Between LLC "V." (seller) and LLC "S." (buyer) a supply agreement was concluded in which the parties established the buyer’s obligation to select and transport the goods. The contract also stated that the seller’s obligation to transfer the goods to the buyer is considered fulfilled at the moment the goods are handed over to the carrier or communication is organized for delivery to the buyer.

The driver accepted meat products worth RUB 2,280,000 from the seller, but did not deliver them to the buyer. Referring to this, LLC "S." refused to pay for the goods.

LLC "V." filed a claim with the arbitration court to collect the debt under the supply agreement in the amount of RUB 2,279,088. and penalties in the amount of RUB 207,189. 82 kopecks

The court indicated: “According to paragraph 1 of Art. 459 of the Civil Code of the Russian Federation, unless otherwise provided by the purchase and sale agreement, the risk of accidental loss or accidental damage to the goods passes to the buyer when, in accordance with the law or the contract, the seller is considered to have fulfilled his obligation to transfer the goods.”

The court recovered from the buyer the full amount of the debt and a penalty in the amount of 10 thousand rubles. ().

However, if the goods were already lost or damaged at the time the contract was concluded and the seller knew about it and did not inform the buyer, then the court may declare the contract clause regarding the moment of transfer of the risk of accidental loss of the goods invalid ().

The condition on the transfer of risks of non-safety of goods is better defined in detail in the contract. However, you can simply refer to one of the terms in the contract, since they indicate not only the delivery conditions, but also the moments of risk transfer.

2. The risk of accidental loss or accidental damage to the goods passes to the buyer from the moment the purchase and sale agreement is concluded

It is convenient to include this condition in the contract if the sale of goods occurs while it is in transit and transportation continues for a long time (by sea or intermodal transport). Moreover, in such circumstances, this condition applies by default, that is, unless the parties expressly agreed otherwise in the purchase and sale agreement or unless otherwise provided by custom ().

3. The risk of accidental loss or accidental damage to the goods passes to the buyer from the moment

This condition makes sense to use if the buyer himself is obliged under the contract to pick up the goods at his location. So, if he delays acceptance of the goods, then the risk of accidental loss or damage to the goods will pass to the buyer before he can actually receive it.

This is due to the fact that the seller will be considered to have fulfilled his obligation to transfer the goods (and will relieve himself of the risk of accidental loss of the goods) immediately after he marks, prepares the goods for transfer and notifies the buyer about the readiness of the goods by the deadline stipulated by the contract.

If the goods are stolen or damaged as a result of flooding or fire in the warehouse after the date the goods are made available to the buyer, but before they are actually picked up by the buyer, the latter will still have to pay for it ().

Attention! Even if favorable terms are included in the contract regarding the moment of transfer of the risk of accidental loss or damage to the goods, the arbitration court has the right to impose liability on the seller if he is at fault.

This is due to the fact that the rules for transferring the risk of accidental loss or accidental damage to goods apply only to cases where loss or damage to the goods occurred due to circumstances beyond the control of the seller and buyer. If the seller was at fault, then the buyer has the right to bring a claim on the basis of Article 476 of the Civil Code of the Russian Federation. Thus, the seller will be responsible for defects in the goods if the buyer proves that these defects arose before the transfer of the goods to the buyer or for reasons that arose before that moment (see, for example,).

If the buyer cannot prove that the seller is to blame for the damage to the goods, the arbitration court will oblige the buyer to pay for the lost or damaged goods at full cost. In this case, the court will take into account who bears the risk of accidental loss or damage to the goods.

What conditions should the seller avoid?

The seller does not benefit from conditions under which he will bear the risk of accidental loss or accidental damage to the goods after he loses the ability to control its condition and storage conditions. This is possible under the following contract conditions.

1. The risk of accidental loss or accidental damage to the goods passes to the buyer at the time of receipt of the goods from the carrier or communication organization (subject to delivery of the goods)

If this condition is nevertheless included in the contract, the seller will be liable to the buyer for loss or damage to the goods during its transportation, including in cases where this occurs through the fault of the carrier. Therefore, it makes sense to use the following rights:

if the goods have not yet been transferred to the carrier, insure the goods (if this obligation could not be assigned to the buyer in the contract ()), and also send a representative to the buyer to be present when receiving the goods from the carrier;
if the goods are already lost or damaged and the carrier is to blame, submit a claim for compensation to him (for more details, see).

2. The risk of accidental loss or accidental damage to the goods passes to the buyer at the moment when the buyer actually receives the goods (when the goods are provided at its location)

This condition is inconvenient because if the buyer misses the sampling period, the goods will remain for some time in the territory agreed upon by the parties (usually the seller’s warehouse). In this case, during the entire period of delay, the risk of accidental loss or accidental damage to the goods will be borne by the seller.

3. The risk of accidental loss or accidental damage to the goods passes to the buyer after he makes the final payment (checks the quality of the goods or takes other actions after receiving the goods)

Sometimes sellers believe that they will protect themselves if they include the following wording in the contract: “The risk of accidental loss or accidental damage to the goods is borne by the party to the contract that had ownership of the goods at the time of accidental loss or accidental damage.” However, this condition in itself may not be sufficient. The general rule, according to which the buyer’s ownership rights arise from the moment the thing is transferred (), can be changed by the parties in the contract, both in favor of the seller and in favor of the buyer.

The contract may provide for the following condition: “Ownership rights and the risk of accidental loss or damage to the goods pass from the seller to the buyer from the moment of the actual transfer of the goods and the signing of the acceptance certificate of the goods.” In this case, the ownership of the goods already in the possession of the buyer will remain with the seller for a certain time until the signing of the acceptance certificate of the goods. In this case, the buyer himself will control the condition of the goods and the conditions of its storage, and the risks will still be borne by the seller.

If such conditions are agreed upon by the parties to the contract and accidental loss or damage to the goods occurs before the risk passes to the buyer, then the latter, in accordance with the terms of the contract, will be able to demand the delivery of new goods or the return of the advance payment, as well as compensation for losses.

Case Study: The product was destroyed by fire before it was actually delivered to the buyer. The court recovered from the supplier the amount of advance payment for the goods and interest for the use of other people's funds, since until the actual transfer of the goods the risk of accidental death lay with the seller

MU "S." (buyer) and individual entrepreneur Ch. (supplier) entered into a supply agreement, under which the supplier agreed to supply the buyer with a boat and an outboard engine with a remote control. The parties also established that the risk of accidental loss or damage to the goods passes from the supplier to the buyer “from the moment of actual receipt of the goods and the signing of the acceptance certificate.”

The buyer paid but did not receive the goods. MU "S." filed a claim with the arbitration court to recover the advance payment amount in the amount of 415,200 rubles. and interest for the use of other people's funds in the amount of 69,181 rubles. 42 kopecks

Ch. referred to the fact that the boat and engine were shipped to the buyer using a bill of lading and a bill of lading, but were destroyed as a result of a fire.

The court stated: “The shipment of goods under a bill of lading... and a bill of lading... indicates only the transfer of the goods to the carrier. According to clause 3.1 of the Contract... the actual transfer of the goods is the signing of the acceptance certificate by the parties, and not the transfer of the goods to the carrier... Since at the time of the fire the goods were not transferred to the plaintiff, the risk of accidental loss or damage to the goods did not pass to the plaintiff.”

Since the supplier later delivered a new boat to the buyer, the court recovered the cost of the outboard engine with remote control in the amount of RUB 271,200. and 55,643 rubles. 97 kopecks interest for the use of other people's funds ().

The buyer proposed a draft purchase and sale agreement, which does not define the moment of transfer of the risk of accidental loss or damage to the goods. Is this beneficial to the seller, the risk of accidental loss or damage to the goods will pass at the moment the goods are placed at the disposal of the buyer ().”

A professional help system for lawyers in which you will find the answer to any, even the most complex, question.

"Financial newspaper", 2006, N 50
COMMISSION CONTRACTS: RISKS OF ACCIDENTAL DEATH
OR ACCIDENTAL DAMAGE TO THE PRODUCT
The most common option for executing intermediary transactions is the conclusion of a commission agreement between organizations. A commission agreement, by its civil law nature, is a type of agency agreement, i.e. agreement for the provision of agency services. Legal regulation of the commission's relations is carried out by Ch. 51 Civil Code of the Russian Federation.
The commission agreement is consensual, bilateral, and in all cases compensated. Under such an agreement, in accordance with Art. 990 of the Civil Code of the Russian Federation, one party (the commission agent) undertakes, on behalf of the other party (the principal), for a fee, to carry out one or more transactions on its own behalf, but at the expense of the principal. Moreover, under a transaction made by a commission agent with a third party, the commission agent acquires the rights and obligations, even if the principal was named in the transaction or entered into direct relations with the third party for its execution.
The commission agreement is aimed exclusively at making transactions (concluding agreements) with third parties, i.e. it does not imply the provision by the commission agent of any other paid services to the principal. Services provided under such an agreement are not subject to reimbursement by the principal, but are paid for separately based on the terms of the agreement.
In practice, the commission agreement provides that the commission agent not only enters into transactions for the purchase and sale of goods belonging to the principal, but also provides the principal with his own resources (for the purpose of executing the order) any other services. According to paragraph 3 of Art. 421 of the Civil Code of the Russian Federation, an agreement that contains elements of various agreements provided for by law or other legal acts is called mixed. The rules on contracts, the elements of which are contained in a mixed contract, apply to the relations of the parties to such agreements in the relevant parts.
The subject of a commission agreement is transactions carried out by a commission agent on behalf of the principal (in contrast to an agency agreement, the subject of which is certain legal actions, including transactions). The commission is carried out on the basis of written representation, since the commission agent acts in civil transactions on his own behalf.
A commission agreement can be concluded for a certain period or without specifying the period of its validity, with or without indicating the territory of its execution, with or without the obligation of the principal not to grant third parties the right to carry out transactions in his interests and at his expense, the execution of which is entrusted to the commission agent. obligations, with or without conditions, regarding the range of goods that are the subject of the commission (clause 2 of Article 990 of the Civil Code of the Russian Federation).
The legislation determines the owner of the property that was received or acquired by the commission agent. So, in accordance with Art. 996 of the Civil Code of the Russian Federation, things received by the commission agent from the principal or acquired by the commission agent at the expense of the principal are the property of the latter. However, in this case, the commission agent has the right to retain the things in his possession, which are subject to transfer to the principal or a person indicated by the principal, to secure his claims under the commission agreement. If the principal is declared insolvent (bankrupt), the commission agent's ownership rights are terminated, and his claims against the principal are satisfied within the limits of the value of the things he held, along with the claims secured by the pledge.
In addition, according to Art. 997 of the Civil Code of the Russian Federation, the commission agent has the right in accordance with Art. 410 of the Civil Code of the Russian Federation to withhold the amounts due to him under the commission agreement from all amounts received by him at the expense of the principal (termination of obligations by offset).
Article 998 of the Civil Code of the Russian Federation regulates the liability of the commission agent to the principal for loss, shortage or damage to the principal's property in his possession. If, when the commission agent accepts property sent by the principal or received by the commission agent for the principal, there is damage or shortage in this property that can be noticed during an external inspection, as well as in the event of someone causing damage to the principal’s property located with the commission agent, the commission agent is obliged to accept measures to protect the rights of the principal, collect the necessary evidence and immediately inform the principal about everything.
A commission agent who has not insured the principal's property in his possession is liable for this property only in cases where the principal has ordered him to insure the property at the principal's expense or the insurance of this property by the commission agent is provided for by the commission agreement or business customs.
When carrying out transactions through a commission agent, the principal, as a rule, does not know the final buyer of his goods, which increases the risk of not receiving money. But if a special condition is included in the commission agreement, then in case of non-payment, the commission agent will compensate for the damages of the principal.
The commission agent is not responsible for the execution of the transaction by a third party (Clause 1, Article 993 of the Civil Code of the Russian Federation). In other words, if the commission agent found a buyer for the goods, but he did not fully pay for the delivery, then the losses will fall on the principal. Such situations are possible if the commission agent is careless in choosing a client.
But the principal can avoid this risk if he takes into account the del credere clause in the commission agreement (this term comes from the Italian del credere, which means “on faith, by trust”). Delcredere is a commission agent's guarantee for the execution of a transaction by a third party and liability for failure by third parties to fulfill the terms of transactions concluded in the interests of the principal. The commission agent assumes this responsibility voluntarily. Thus, the commission agent guarantees to the principal that the buyer will fulfill his financial obligations. On the one hand, such a guarantee is a kind of security measure, insurance that guarantees the interests of the principal; on the other hand, an additional service of a commission agent, for which the principal will be obliged to pay a remuneration.
The legislation in the field of the commission defines complete freedom of action of the parties, therefore this agreement is concluded on the terms that are approved by its participants. The del creder clause can be included in the text of the commission agreement or drawn up as an additional agreement or an appendix to the main agreement. Regardless of the existence of an independent del credere agreement, the amount of remuneration and the procedure for its payment must be established precisely in the commission agreement (Article 991 of the Civil Code of the Russian Federation).
Upon execution of the order, the commission agent is obliged to submit a report to the principal and transfer to him everything received under the commission agreement. The principal who has objections to the report must report them to the commissioner within thirty days from the date of receipt of the report, unless a different period is established by agreement of the parties. Otherwise, the report, in the absence of another agreement, is considered accepted (Article 999 of the Civil Code of the Russian Federation).
The principal, in turn, is obliged:
accept from the commission agent everything performed under the commission agreement;
inspect the property acquired for him by the commission agent and notify the latter without delay of any shortcomings discovered in this property;
release the commission agent from the obligations assumed by him to a third party for the execution of a commission order;
in addition to paying the commission, reimburse the commission agent for the amounts spent by him on the execution of the commission order; in the case where the commission agent has accepted the guarantee for the execution of the transaction by a third party (del credere), also an additional remuneration in the amount and in the manner established in the commission agreement; however, the commission agent does not have the right to reimbursement of expenses for storing the principal’s property in his possession, unless otherwise provided in the law or the commission agreement.
Article 211 of the Civil Code of the Russian Federation determines that the risk of accidental loss or accidental damage to property is borne by its owner, unless otherwise provided by law or contract. Accident means that liability for loss and damage to property cannot be assigned to a third party responsible for the death or damage to property.
The legal nature of the agreement under which the goods are transferred for sale is determined based on the interpretation of the terms of this agreement and the actual relations of the parties that developed during its conclusion and execution. Thus, in the case of a commission agreement, responsibility for the goods falls on the commission agent, who ensures its proper storage (belonging by right of ownership to the principal).
Under a commission agreement, the commission agent does not acquire ownership of the property in his possession, but is responsible for its safety. When the contract specifically indicates the date (moment) of transfer of the right to own, use and dispose of the product and the risk of its accidental loss or damage, the issue of liability does not arise. With regard to liability under a commission agreement, the situation is somewhat different.
The moment of transfer of the risk of accidental loss of property is regulated by Art. 459 of the Civil Code of the Russian Federation. The risk of accidental loss or accidental damage to the goods passes to the buyer from the moment when, in accordance with the law or the contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer, unless otherwise provided by the contract. As a general rule, the risk of accidental death lies with the owner of the property. However, this rule does not apply, for example, to leasing relationships. According to Art. 669 of the Civil Code of the Russian Federation, unless otherwise provided by the financial lease agreement, the risk of accidental loss or accidental damage to the leased property lies with the lessee and passes to him at the moment the leased property is transferred to him. There are no such clauses in the legislation regarding the commission agreement, but the goods transferred by the principal to the commission agent are similar in ownership to the leased property.
In my opinion, liability for the risk of accidental loss or accidental damage to the goods rests with the commission agent. However, in order to avoid controversial situations regarding this type of liability, it is advisable to provide for the specific liability of the parties in the commission agreement.
In accounting, damage or loss of goods held by the commission agent must be attributed by the principal to settlements of claims at the estimated cost of a unit of goods established in the commission agreement in the event of its loss or damage by the commission agent.
E. Gorina
Senior auditor-consultant
CJSC "AFF "Auditinform"
Signed for seal
13.12.2006

The risk of accidental loss or accidental damage to property is borne by its owner, unless otherwise provided by law or contract.

Commentary to Art. 211 Civil Code of the Russian Federation

1. The destruction of property means the destruction (disappearance) of the corresponding object of civil rights. Damage to property in this case should be understood quite broadly. This refers to both actual damage as a result of mechanical or other impact on a thing, and damage as a consequence of certain organic processes.

2. The destruction of property is considered accidental, damage to property is considered accidental if the incident is no one’s fault. Consequently, there are no persons from whom it was possible to recover the value of lost or damaged property. Adverse property consequences are borne by the owner. He can come to terms with what happened, can take actions aimed at restoring lost property, repairing damaged property, etc. But he cannot demand anything from anyone, since no one is guilty of the loss or damage to property and, therefore, no one can be held accountable. This is the general rule (exceptions below).

The rule in question applies if a simple case (incident) has occurred (sometimes called a subjective case) - there is loss or damage to property, but there is no one to blame for it. It also applies if an emergency and unavoidable circumstance under the given conditions has occurred (force majeure, sometimes called an objective case).

3. The law or contract may provide that the risk of accidental loss or accidental damage to property is borne not by the owner, but by other persons (another person). There are many such cases. Some rules in this regard are imperative (do not allow otherwise to be established by agreement of the parties), others are dispositive (the law specifies a certain type of behavior, but allows otherwise by agreement of the parties). Of course, there are more dispositive norms. So, by virtue of paragraph 1 of Art. 459 of the Civil Code of the Russian Federation, unless otherwise provided by the purchase and sale agreement, the risk of accidental loss or accidental damage to the goods passes to the buyer from the moment when, in accordance with the law or the contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer.

Most often, the corresponding rules are formulated abstractly, regardless of the behavior of the subjects. Sometimes the law takes into account the reproach of the behavior of one of the subjects. For example, under an agreement for gratuitous use (loan agreement), the borrower bears the risk of accidental loss or accidental damage to an item received for gratuitous use, if the item is lost or damaged due to the fact that he did not use it in accordance with the agreement for gratuitous use or the purpose of the item or transferred it to a third party without the consent of the lender. The borrower also bears the risk of accidental death or accidental damage to a thing if, taking into account the actual circumstances, he could have prevented its death or damage by sacrificing his thing, but chose to keep his thing (Article 696 of the Civil Code).

As noted, as a general rule, the analyzed norm is applied both in case of loss or damage to property as a result of a simple (subjective) event, and as a result of force majeure. However, sometimes the law establishes that adverse consequences are assigned to a subject only if the loss or damage to property is due to a simple (subjective) case. If they occur as a result of force majeure, then the risk is borne by another entity. So, in accordance with paragraph 1 of Art. 901 of the Civil Code of the Russian Federation, a professional custodian is responsible for loss, shortage or damage to property, unless he proves that the loss, shortage or damage occurred due to force majeure (or due to the properties of the thing, which the keeper, when accepting it for storage, did not know and should not was known, either as a result of intent or gross negligence of the bailor). Consequently, in the event of loss or damage to property transferred to a professional custodian due to a simple (subjective) event, the risk is borne not by the owner (bailor), but by the professional custodian. He is obliged to compensate the owner for losses. If the property is lost or damaged due to force majeure, then the risk is borne by the owner (bailor).

1. Unless otherwise provided by the purchase and sale agreement, the risk of accidental loss or accidental damage to the goods passes to the buyer from the moment when, in accordance with the law or the contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer.

2. The risk of accidental loss or accidental damage to goods sold while in transit passes to the buyer from the moment the purchase and sale agreement is concluded, unless otherwise provided by such agreement or business customs.

The provision of the contract that the risk of accidental loss or accidental damage to the goods passes to the buyer from the moment the goods are handed over to the first carrier, at the request of the buyer may be declared invalid by the court if at the time of concluding the contract the seller knew or should have known that the goods were lost or damaged, and did not inform the buyer about this.

Commentary to Art. 459 Civil Code of the Russian Federation

1. In science, including the science of civil law, there are different interpretations of the concept of “risk” and its varieties. Article 2 of Federal Law No. 184-FZ of December 27, 2002 “On Technical Regulation” defines risk as the likelihood of causing harm to the life or health of citizens, property of individuals or legal entities, state or municipal property, the environment, life or health of animals and plants taking into account the severity of this harm.

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Collection of legislation of the Russian Federation. 2002. N 52 (part 1). Art. 5140.

The risk of accidental loss or accidental damage to a product is the risk of suffering negative consequences due to damage or cessation of existence of the product for reasons for which neither the seller nor the buyer is responsible. In the event that the cause of death or damage to the goods was the actions of third parties, they may be subject to a claim for compensation for damage caused in accordance with Art. 1064 of the Civil Code of the Russian Federation. Thus, one of the comments of the Code states:

"1. The destruction of property means the destruction (disappearance) of the corresponding object of civil rights. Damage to property in this case should be understood quite broadly. This refers to both actual damage as a result of mechanical or other impact on a thing, and damage as a consequence of certain organic processes.

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The emergence, termination and protection of property rights: Article-by-article commentary on chapters 13, 14, 15 and 20 of the Civil Code of the Russian Federation / Ed. P.V. Krasheninnikova. M.: Statute, 2009 (author of the commentary on Article 211 - B.M. Gongalo).

The norms of the commented article are consistent with the presumption of bearing the risk of accidental death or accidental damage to property by the owner of this property. Otherwise may be provided both by law and by contract.

2. Presumptions of this kind were inherent in Roman law. The general principle (“casum sentit domirms”) placed the consequences of accidents that could befall a thing on the owner of that thing. The special principle (“periculum est emptoris”) placed the risk of accidental loss of the thing sold on the buyer, unless otherwise provided by the contract.

The distribution of risks of accidental loss or accidental damage to goods is also typical for Russian legislation. Thus, the Civil Code of the RSFSR of 1922 linked the transfer of the risk of accidental destruction of the sold property with the transfer of ownership rights to the buyer (Articles 66, 186). This norm was dispositive in nature. But if the seller was late in transferring things to the buyer or the buyer was late in accepting them, then the risk of accidental death was borne by the late party. Similar rules were contained in Art. 138 Civil Code of the RSFSR 1964

According to Art. 187 of the Civil Code of the RSFSR of 1922, when ownership passed to the buyer before the transfer of property, the seller was obliged to preserve the property until the moment of transfer, preventing its deterioration. The costs necessary for this, incurred by the seller after the transfer of ownership to the buyer, the latter was obliged to reimburse the seller.

3. In accordance with Art. 223 of the Civil Code of the Russian Federation, the right of ownership of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or contract. Article 224 of the Civil Code of the Russian Federation defines the specifics of the transfer of a thing, which is important as a general rule for sales contracts. The moment of fulfillment of the seller’s obligation to transfer the goods is determined according to the rules of Art. 458 Civil Code of the Russian Federation.

Based on these provisions, the methods of transferring the risk of accidental loss or accidental damage to goods can be systematized as follows:

— transfer of risks when selecting goods (paragraph 3, clause 1, article 458 of the Civil Code - when placing the goods at the disposal of the buyer);

- transfer of risks when the seller delivers the goods to the buyer at its location or to another place specified by the buyer (paragraph 2, clause 1, article 458 of the Civil Code) - upon delivery of the goods to the buyer;

- when transporting goods, except for delivery to the buyer in the above cases (clause 2 of Article 458 of the Civil Code - when delivering the goods to the carrier (first carrier) or communication organization);

- in relation to goods in transit - from the moment of concluding the purchase and sale agreement (paragraph 1, paragraph 2 of the commented article). The exception is the legal composition provided for in paragraph. 2 paragraph 2 of the commented article.

Otherwise may be provided by the contract. So, for example, when sampling goods, the transfer of the risk of accidental loss can be determined in the contract by the moment of actual delivery of the goods to the buyer. Otherwise, the buyer will not be able to refuse to pay for goods that, by the time of their actual receipt, turned out to be damaged or lost, unless they prove that this happened before the buyer received notification that the goods were ready for collection.

Loss or damage to goods after the risk of accidental loss or damage has passed to the buyer does not relieve him of the obligation to pay the price of the goods, unless the loss or damage was caused by the actions or omissions of the seller.

According to paragraph 1 of Art. 405 of the Civil Code of the Russian Federation, a debtor who is late in performance is liable to the creditor for the consequences of the impossibility of performance that accidentally occurred during the delay. In the latter case, if from the moment the goods are placed at the disposal of the buyer, he does not exercise the right to receive it within a reasonable time (it is advisable to indicate this period in the contract), then its delay entails the imposition of these risks on the buyer.

In all of the above cases, the transfer of risk to the buyer can be determined by the moment the buyer pays for the goods.

When transporting goods both by the supplier and by third parties, the transfer of the risk of accidental loss or accidental damage to the goods can be specified by the moment of receipt of the goods from the carrier and the signing of the consignment note or other transfer document.

4. Paragraph 2 of clause 2 of the commented article determines the transfer of risk to the buyer at the moment of delivery of the goods to the first carrier. In this case, the question arises about the separation in time of the moment of transfer of documents of title to the goods and the goods themselves. The delay in the transfer of documents of title should not affect the moment of transfer of risk, which is associated with the transfer of goods into actual possession. The goods must be identified by marking for the purposes of this agreement.

The delivery of goods to the carrier can be carried out either directly by the seller or on his behalf by a third party. In addition, transportation is possible through the services of a forwarder under a transport expedition agreement. Unless otherwise provided in the contract, for example, the transfer of risk from the moment the goods are transferred to the freight forwarder, the transfer of risk will take place from the moment the goods are delivered to the carrier by the freight forwarder, acting on the basis of an agreement with the seller as part of the execution of his instructions.

The transfer of the risk of accidental loss or accidental damage to the goods depends on the proper fulfillment of the seller’s obligation to transfer the goods. So, for example, if the seller must place the goods at the disposal of the buyer, then the risk passes if there is a sign of readiness of the goods for transfer by the time specified in the contract, in the appropriate place and the buyer, in accordance with the terms of the contract, is aware of the readiness of the goods for transfer. Readiness of goods means that they have been identified for the purposes of the contract by marking or otherwise.

5. In relation to certain types of sales contracts, legislation may determine a different procedure for transferring the risk of accidental death or damage to the object of sale. So, according to Art. 563 of the Civil Code of the Russian Federation, the enterprise is considered transferred to the buyer from the day the transfer act is signed by both parties. From this moment on, the risk of accidental loss or accidental damage to the property transferred as part of the enterprise passes to the buyer. This norm is imperative.