In the context of a transport of goods or merchandise, the question always arises as to who bears the "responsibility" for the respective item from which point in time or occurrence of a certain event. The term transfer of risk therefore defines the point in time from which the risk (e.g. deterioration or loss of the owed item) is transferred from the debtor (i.e. the service provider) to the creditor.
This question has enormous legal significance, because from a point in time X, the buyer (creditor) would then be responsible and could no longer turn to the debtor.
Typical aspects in connection with the transfer of risk
- The transfer of risk is important in the law of sales, because a notice of defect or action based on defects (so-called warranty for defects) is only possible if the underlying circumstances existed at the time of the transfer of risk (see § 434, 435 BGB).
- As a rule, the transfer of risk in the law of sale takes place at the moment when the goods are handed over, i.e. a so-called transfer of possession according to § 446 BGB. In connection with mail order purchases, in the case of so-called mail order purchases, the transfer of risk already takes place when the item is handed over to the shipping person (cf. Section 447 of the German Civil Code) - with the exception of cases where it is a so-called purchase of consumer goods (cf. Sections 474, 475 (2) of the German Civil Code).
- The transfer of risk must be distinguished from the so-called transfer of costs; more details for individual contractual clauses can be found in Incoterms 2000.
- Variants of the transfer of risk in the sense of logistics include the so-called one-point clause, in which costs and risks are transferred at the same place ("Free on Board"), and the two-point clause, which is based on deviations of these points ("Cost and Freight").
In plain language: The transfer of risk is primarily significant in that it determines which contractual partner is responsible for which part of a goods transport - and who bears the so-called risk of loss or damage under which circumstances. Usually, special transport insurance policies are taken out for this purpose.
