Definition and Significance of Transportation Risk
Die Transportation Risk is a key concept in civil law and especially in transport law. It refers to the risk of accidental loss or deterioration of goods during their transport from the sender to the recipient. The legal assignment of this risk, i.e., the question of who is liable for damage or loss of the transported goods, is of crucial importance, particularly in contracts of sale, transport, and freight forwarding.
Legal Foundations
German Civil Code (BGB)
In German law, transportation risk is particularly anchored in the provisions of the German Civil Code (BGB). Central to this are §§ 447 and 475 BGB, which describe the so-called “sale by dispatch” scenario and deviations from the general rules in consumer law.
Section 447 BGB – Transfer of Risk in Sale by Dispatch
According to Section 447(1) BGB, the risk of accidental loss and accidental deterioration passes to the buyer as soon as the goods are handed over to a transport person (e.g., forwarding agent, carrier), unless otherwise agreed. Therefore, the seller generally does not bear the risk of accidental damage during transport when shipping the goods at the buyer’s request.
Limitations in Consumer Goods Sales (§ 475 BGB)
In consumer goods sales, the buyer’s rights are strengthened by Section 475(2) BGB: The risk does not pass to the consumer until he or a person designated by him has taken possession of the goods—unless the consumer himself appointed the carrier without this being proposed by the seller.
Commercial Code (HGB) – Specific Provisions in Transport Law
The Commercial Code contains specific provisions regarding obligations and liability regulations in freight contracts (§§ 407 et seq. HGB) and forwarding contracts (§§ 453 et seq. HGB). Essential here is the distinction between transport risk (risk of actual damage/loss during transport) and transportation risk (risk that economically passes to one contracting party).
Transfer of Risk and Risk Allocation
Transfer of Risk in the Law of Sale
Decisive is when and under what conditions the risk passes from the seller to the buyer. This depends on the type of contract:
- Standard contract of sale (collecting debt): Risk passes upon handover of the goods to the buyer.
- Sale by dispatch (obligation to ship): Risk passes upon handover of the goods to the transport person (§ 447 BGB), except in consumer goods sales.
- Consumer goods sale: Risk generally passes only upon acceptance by the consumer (§ 475(2) BGB).
Agreements on Incoterms
In international trade, so-called Incoterms (International Commercial Terms) are often used, regulating details about delivery, costs, and transfer of risk. Well-known examples include “EXW” (Ex Works), “FOB” (Free On Board), or “DAP” (Delivered at Place). These define from what point and under which conditions the risk passes to the buyer.
Practical Significance of Transportation Risk
The correct allocation of the transportation risk is essential to clarify who bears the risk for damage during transport. This affects both the economic interests of the contracting parties and any insurance considerations:
- Seller: Generally, once timely and proper shipment has occurred, no longer bears the risk of accidental loss or deterioration, unless in the case of delivery free domicile or special agreements.
- Buyer: May have to assume the transport risk and should therefore arrange for appropriate insurance.
- Transport Insurance: Serves to cover against any damage or loss during transportation.
Special Constellations and Exclusions of Liability
Incorrect or Inadequate Packaging
Risks resulting from poorly packaged goods remain with the seller even after transfer of risk, provided the seller is at fault (§ 447(2) BGB). This includes, for example, damage caused by improper securing of the goods for transport.
Involuntary Loss Due to Force Majeure
Damage caused by force majeure (e.g., natural disasters) during transport falls under the transportation risk. Liability is determined according to the contractually agreed transfer of risk.
International Law and Transportation Risk
In cross-border trade, in addition to German regulations, international provisions often apply, especially the UN Sales Convention (CISG). Here too, the time of transfer of risk is often regulated according to principles similar to German law but can be contractually altered.
Summary
Die Transportation Risk is contractually or legally determined as to who bears the risk of accidental loss or deterioration of an item during transport. The exact time of transfer of risk and risk allocation are governed in detail under German law and supplemented in international trade by additional regulations such as Incoterms or the UN Sales Convention. Understanding transportation risk is essential for all contracting parties in the movement of goods to avoid economic and legal disadvantages.
Frequently Asked Questions
Which legal provisions govern transportation risk under German law?
Transportation risk is primarily regulated in German law by the German Civil Code (BGB). The relevant provisions are found in §§ 446 et seq. BGB (“transfer of risk and burdens”). These rules specify from what point the risk of accidental loss or deterioration of the purchased item passes from the seller to the buyer. In cases of sale by dispatch, where the goods are shipped at the buyer’s request to a location other than the place of performance, the risk passes to the buyer upon delivery to the transport person, pursuant to § 447 BGB. It is crucial whether a so-called “sale by dispatch” (standard for online orders) or a so-called “collecting debt” (handover at the seller’s premises) applies, as this determines who is liable for loss or damage of the goods during transport. In addition, sector-specific special regulations, especially in commercial law (§ 377 HGB for commercial sales), must be observed. Dangerous goods law and transport regulations (HGB, CMR, ADSp) may also play a role in the context of transportation risk.
When and to whom is the transportation risk transferred in a sale by dispatch?
In a sale by dispatch according to § 447 BGB, the buyer bears the risk of accidental loss or accidental deterioration of the purchased item from the moment the seller hands over the item to the transport person (e.g., freight forwarder, carrier, postal service provider). This means that as soon as the goods are handed over to the commissioned transport company, the risk passes fully to the buyer—even if the goods have not yet reached their destination. In contrast, for a consumer goods sale within the meaning of § 474 BGB, where a business sells to a consumer, § 446 BGB continues to apply: here, the seller bears the risk until handover to the buyer (exception: the consumer has commissioned the carrier on his or her own initiative, without suggestion from the business). Therefore, it is crucial to determine whether the contracting parties are businesses or consumers.
What is the significance of the transfer of risk in the context of transportation risk with regard to liability for loss or damage to goods?
The transfer of risk is central to transportation risk law, as it determines who is liable for accidental damage during transport. If the risk has already passed to the buyer (e.g., upon handover to the carrier in a sale by dispatch), the buyer is liable for damage or loss of the goods in transit. This means that the buyer remains obligated to pay the full purchase price, even if he is not at fault and cannot use the damaged or lost goods, or only to a limited extent. It is different if the risk still lies with the seller: in this case, the seller is liable, and the buyer is released from the obligation to pay the purchase price or may demand delivery of a defect-free item. Resolving the question of when the risk passes is therefore also of great practical significance for the assertion of transport insurance claims or claims for damages.
What particularities apply to international transport in relation to transportation risk?
In international trade in goods, special regulations frequently apply, especially the provisions of the UN Sales Convention (CISG – United Nations Convention on Contracts for the International Sale of Goods), provided these have not been expressly excluded by the parties. The transfer of risk is governed by Articles 66 to 70 CISG. Decisive is typically whether the goods have been handed over and which delivery clauses (e.g., Incoterms such as EXW, FOB, CIF, DDP) the parties have agreed upon. These clauses specify in detail who bears the transport risks, costs, and obligations. Often, it is the Incoterms that are primarily applied in international shipments, thereby determining the time and modalities of risk transfer. Knowledge of these rules is essential for the legally secure drafting of international contracts of sale.
Can the regulation of transportation risk in a contract of sale be excluded by agreement?
Yes, the parties have the option to amend the statutory rules on transportation risk by express agreement (§ 447(2) BGB “exclusion by agreement”). This means they can stipulate that the risk passes only upon arrival of the goods at the buyer’s premises or at another individually determined point in time. Especially in individual contracts or framework agreements between businesses, it is common to agree on different arrangements, for example, in delivery terms or through the use of general terms and conditions (GTC). It should be noted, however, that in consumer sales, no stricter deviations from the statutory rules to the detriment of the consumer are permissible (§ 475(1) BGB). Such clauses would be invalid against a consumer.
What role does transport insurance play in connection with transportation risk?
Transport insurance usually covers the financial risks for the owner or possessor of the goods during transportation. Who must bear the cost of the insurance and who is entitled to claim under the policy depends on the contractual agreement between the contract parties, or the underlying delivery terms such as the Incoterms. Transport insurance does not fundamentally alter the statutory risk transfer; it merely compensates the policyholder for losses according to the insurance terms. It is important to note that especially after risk has passed to the buyer, the buyer is often (unless otherwise agreed) responsible for insuring his risks during transport.
What is the situation concerning transportation risk in the case of so-called partial deliveries?
For partial deliveries, Section 266 BGB provides that the buyer, as a rule, is not obligated to accept partial performance unless otherwise agreed. If partial deliveries nevertheless take place, the question arises as to how the transfer of risk affects these partial deliveries. As a rule, in the case of a partial delivery, risk for that part of the goods passes to the buyer upon delivery to the carrier if a sale by dispatch in the sense of § 447 BGB applies. For the quantities not yet delivered, the risk remains with the seller. In international trade, the treatment of partial deliveries is often specifically regulated in delivery terms (e.g., Incoterms). Here too, a clear contractual agreement is advisable to avoid disputes.
