In the context of transporting goods or merchandise, the question always arises as to who bears "responsibility" for the respective item from which point in time or occurrence of a certain event. The term transfer of risk is therefore used to define the point in time at which the risk (e.g. deterioration or loss of the goods owed) is transferred from the debtor (i.e. the service provider) to the creditor.
This question is of enormous legal significance since 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 sales law, because a notice of defects or action due to 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 sales law takes place at the moment when the goods are handed over, i.e. when possession is transferred in accordance with Section 446 BGB. In connection with mail order purchases, the transfer of risk takes place when the goods are handed over to the shipper (see Section 447 BGB) - with the exception of cases where it is a so-called sale of consumer goods (see Sections 474, 475 (2) BGB).
- The transfer of risk must be distinguished from the so-called transfer of costs; further details for individual contractual clauses can be found in the Incoterms 2000.
- Variants of the transfer of risk in terms of logistics include the so-called one-point clause, in which costs and risks are transferred at the same place ("free on board"), as well as the two-point clause, which is based on deviations of these points ("cost and freight").
In plain language: The transfer of risk is particularly important in that it determines which contractual partner is responsible for which part of the transportation of goods - and who bears the risk of loss or damage under which circumstances. Special transport insurance policies are usually taken out for this purpose.
