Or accidental damage to the goods goes over. Risk of accidental loss or damage to the goods

RISK OF ACCIDENTAL DEATH

The buyer, when choosing a product, accidentally damages the product next to it. Should the consumer compensate the trade enterprise for the loss caused? When resolving such an issue, one should be guided by the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) (Law of the Russian Federation dated 02/07/1992 No. 2300-1 “On the Protection of Consumer Rights” this moment not regulated).

According to Article 211 of the Civil Code of the Russian Federation, “risk accidental death or accidental damage property is borne by its owner, unless otherwise provided by law or contract.” In addition, according to Article 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.”

Therefore, it is necessary to determine who was the owner of the goods at the time of damage or loss. The form of the agreement in this case, according to Article 493 of the Civil Code of the Russian Federation, will be a check (or other document confirming the fact of payment). Thus, until the buyer pays for the goods and receives a receipt from the seller, the store will be considered the owner of the goods, and it is he who will be responsible for the risk of accidental loss of the goods. But after the paid product is in the hands of the buyer, it becomes his property.

However, the above rules will only apply in the event of accidental loss of goods. The Civil Code of the Russian Federation does not provide direct definition accidental loss of goods. Based on the meaning - the accidental death of a thing - that which occurred as a result of an incident, the occurrence and result of which a person could not predict or prevent in advance. Therefore, it is necessary to distinguish between accidental loss and loss of goods that occurred through the fault of the buyer.

Article 1064 of the Civil Code of the Russian Federation determines that “harm caused to the person or property of a citizen, as well as harm caused to property legal entity, subject to reimbursement in full the person who caused the harm." At first glance, the person who damaged the goods in the store must compensate for the damage. But it is necessary to take into account the following: indeed, the person who caused harm to the other party is obliged to bear the corresponding responsibility, which in civil law usually called delicate. Delicate obligations are non-contractual, their subjects - the creditor (victim) and the debtor (the causer of harm) - are not in a contractual relationship.

For delicate liability to arise, it is necessary to have a corpus delicti, including:

Onset of harm;

Illegality of the behavior of the harm-doer;

The causal relationship between the first two elements;

The guilt of the harm-doer.

In order for a person to compensate for damage, all the above conditions must be present. When analyzing the conditions for the occurrence of delicate liability, most questions arise regarding the guilt of the harm-doer. According to the Civil Code of the Russian Federation, “a person who caused harm is exempt from compensation for harm if he proves that the harm was not caused through his fault.”

In case of causing harm with intent, the person is obliged to compensate for the damage.

In accordance with paragraph 1 of Article 401 of the Civil Code of the Russian Federation, “a person can be considered innocent if he proves that he showed sufficient diligence and care that was required of him in specific case, and took all necessary and possible measures to prevent harm.”

The store can recover the cost of damaged goods from the buyer either in voluntarily, or in court. If the buyer believes that damage to the goods occurred as a result of his guilty actions, he can compensate for the damage voluntarily. However, if the buyer does not consider himself guilty, then the store administration has no right to force him to compensate for the damage. Such pressure on the buyer is unacceptable.

Who bears the risk of accidental loss of property according to the Civil Code of the Russian Federation?

The risk of accidental loss of property is borne by its owner. This rule is established by Art. 211 Civil Code RF. Are there exceptions to of this rule? At what point does risk transfer occur? These questions will be the subject of this article.

When damage or loss of property is considered accidental

Accidental damage or loss of property is such loss or damage when there is no fault of any person. Consequently, there is no one to recover from the loss of such property or the costs of repairing the damage.

Such cases include, for example:

loss of property due to flood;
loss of property in a fire caused by a lightning strike;
destruction real estate caused by an earthquake.

General provisions of the Civil Code of the Russian Federation on the risk of accidental loss or damage to property

In accordance with Art. 211 Civil Code of the Russian Federation risk of accidental loss of property(hereinafter referred to as the SG risk) is borne by the owner, unless otherwise prescribed by law or agreement of the parties.

The right of ownership as the complete dominion of the owner over a certain thing presupposes the possession, use and disposal of such property. On the other hand, this dominance is balanced by such unfavorable aspects for the owner as:

the burden of maintaining property;
bearing the risk of SG property.

For example, by the resolution of the AS of the West Siberian District dated July 19, 2016 in case No. A27-16884/2015, the risk of damage to a non-residential building resulting from an earthquake is assigned to its owner.

The SG risk passes to the new owner of the property from the moment the seller fulfills the obligation to transfer the property (Article 495 of the Civil Code of the Russian Federation).

At the same time, when accepting property, it is necessary to carry out actions to identify its poor quality. Otherwise, the goods are considered accepted, and the risk of SG is transferred to the buyer (resolution of the Moscow District Arbitration Court dated November 24, 2016 in case No. A40-234994/2015).

Assigning the risk of property loss to the user

The legislator has provided for a number of cases when the risk of accidental loss of property is borne by its user:

lessee under a financial lease agreement (Article 669 of the Civil Code of the Russian Federation);
the borrower, if the thing was damaged by its use for other purposes or by another person to whom it was transferred in the absence of the owner’s consent (Article 696 of the Civil Code of the Russian Federation).

In the first case, the norm is dispositive and can be changed by contract. In the second case, the norm is imperative and when trying to change it judiciary take the side of the borrower (CA ruling Ural district dated November 22, 2016 No. F09-110269/16 in case No. A76-30669/2015).

IMPORTANT! The SG risk is borne by the guilty party if the transaction was declared invalid under Art. 179 of the Civil Code of the Russian Federation.

Risk of loss of property during construction of real estate objects

The law establishes the following dispositive rules:

the risk of SG materials is borne by the party that provided them (Article 705 of the Civil Code of the Russian Federation);
the SG risk of the entire object burdens the contractor until such an object is accepted by the customer (Article 741 of the Civil Code of the Russian Federation).

So, by definition Supreme Court RF dated January 29, 2016 No. 305-ES15-18966 in case No. A40-97910/2014, the position of the cassation court was adopted, based on the destruction of the disputed object before its acceptance by the defendant and, therefore, before the transfer of the risk of SG of such an object to it.

If there is a delay in acceptance of the object by the customer, the risk of SG falls on the latter (clause 2 of Article 705 of the Civil Code of the Russian Federation).

So, the risk of SG property is reverse side ownership. The owner has control over the thing and, if there is no fault of third parties in its damage or destruction, bears such a risk himself, making restoration and repairs at his own expense.

N.I. KRASNOYAROV,
Candidate of Legal Sciences, Associate Professor of the Department 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 in the event of these negative consequences.

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 1980 (hereinafter referred to as the Vienna Convention) and its latest edition International rules 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 of the procedure for sending goods, namely:
· delivery in the physical sense of properly individualized goods as goods that are the subject of this contract at the disposal of the buyer at the location commercial enterprise 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 we're talking about about the delivery of the goods to the carrier, then in external and internal circulation this means the transfer by the seller of possession of the goods to the buyer in legal sense, but without the transfer of physical possession of the goods themselves, i.e., the presumed abstract transfer of an individualized goods 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. From theoretical settings normative definition the moment of transfer of risk in the Vienna Convention and the Civil Code of the Russian Federation also does not follow 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 sum of money, however, does not take into account the imposition on the seller of the risks of repeated delivery of goods in kind when using established international trade terms regarding the supply basis with delivery of goods to the destination or when concluding a domestic sale and purchase agreement, delivery with an obligation to deliver.
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.
Commercial content of the debt of the seller or buyer remaining at risk as an amount material assets, which should be transferred to the other party of the obligation without reciprocal provision, 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. That's why practical significance when concluding a contract under group D conditions, the seller receives a strong recommendation to protect himself “from the risks of violation or non-fulfillment of the contract by including in the purchase and sale agreement an appropriate force majeure clause or other clause on exemption from liability.” 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 when sea transportation By individual conditions Incoterms (FCA, FAS, FOB, CFR, CIF, CPT, CIP) are borne by the buyer; if this product also contains manufacturing defects, regardless of whether the presence of such defects is a significant or minor violation of the international sales contract, the buyer has the right to present corresponding requirement 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 the field of international trade, includes additional costs of transshipment due to political events or deterioration weather conditions when the previously agreed route is no longer acceptable.
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 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 features. 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 preserving legal force the right of claim of a non-risk-bearing creditor after loss or damage to 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 forcefully restore the lost delivery or receive payment of its price or confirm the right to non-refund of the received payment of the price of the goods without restoration lost delivery.
In order to protect the conclusions made, 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 internal properties the property itself, which 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 formulated 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. Dispositive nature of the provisions legal system The Russian Federation on eventual risk makes possible the legal management of this type of risk.

Bibliography
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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).
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10 ICC Commentary on Incoterms 2000. Interpretation and practical use. 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.
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21 See ibid. pp. 159-162.
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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 relieve himself of 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." appealed to arbitration court with a claim for collection of debt under a 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. long time(by sea or mixed traffic). Moreover, under such circumstances this condition applies by default, that is, unless the parties expressly agreed otherwise in the sales contract 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 stipulated by the contract Marks the deadline, prepares the goods for delivery and notifies the buyer about the readiness of the goods ().

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 price. 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 next condition: “Ownership and the risk of accidental loss or damage to the goods transfers from the seller to the buyer from the moment of the actual transfer of the goods and the signing of the goods acceptance certificate.” 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 in cash, 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." appealed to the arbitration court with statement of claim to recover the amount of advance payment in the amount of RUB 415,200. 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 ().”

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When preparing a transaction regarding property, there is a risk of its accidental loss or damage. The premises may be damaged by fire, the cargo may become unusable during transportation, etc. To reduce the negative consequences, companies insure the property and also distribute risks in the contract.

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The counterparties determine in the contract what relates to accidental loss of property and who bears the risk

When they talk about the risk of accidental death or accidental damage to property and determine who bears it, this means damage or loss due to unforeseen circumstances. For example, under the influence of force majeure. However, the law does not specifically define what it is. There is only general rule about who bears the risk (). The parties deal with the negative results of such events. As a rule, the consequences are expressed in the complete or partial inability to use goods, works or other objects of legal relations.

The issue of responsibility for this must be resolved at the negotiation stage. To reduce the costs of eliminating the consequences, the parties enter into insurance contracts, relying on the law and the terms of the agreement. Often, counterparties independently prescribe the probable circumstances of accidental loss of property and determine the course of action in the event of such a risk. They have the right:

indicate the events associated with risks, determine the moment of transition and occurrence of risks;
determine the procedure for reimbursement of expenses;
establish obligations for risk insurance;
assign responsibility when events occur,
indicate circumstances of force majeure.

For example, the owner of a car took out insurance on it. The insurer’s responsibility was to make a payment under the “Damage” risk in the event of accidental damage or destruction of the insured property - vehicle. The agreement defined a list of events, which included:

traffic accident,
fire,
disaster,
foreign objects falling on the vehicle,
external damage by animals,
illegal actions of third parties,
soil failure,
failure of a vehicle through the ice on an organized ice crossing,
lightning strike (appeal ruling of the Nizhny Novgorod Regional Court dated April 25, 2017 in case No. 33-4799/2017).

The distribution of risks also depends on the type of legal relationship, the terms of the contract and legislative regulation.

The legal regulation regarding the risk of accidental death depends on the nature of the transaction

In any transaction that is made with property, there is a risk of its accidental destruction. For example, this can happen in relation to:

rental object,
results of contract work,
goods and cargo,
equipment, etc.

The distribution of liability and the application of specific rules of law depend on the nature of the transaction. To understand who bears the risks, it is necessary to understand the obligations of the parties.

The risk of accidental loss or damage to property is borne by its owner

The owner is responsible for the property (Article 211 of the Civil Code of the Russian Federation). The parties may determine a different procedure in the agreement. For example, the parties enter into a lease agreement for a property. The responsibility for the safety of the premises can be assigned to the tenant:

“The tenant is obliged:

keep the facility in good working order and appropriate sanitary condition before delivery to the lessor;

transfer the object to the lessor in good condition according to the acceptance certificate;

carry out routine repairs of the rented property at your own expense;

ensure the safety of engineering networks, equipment, communications at the site;

in case of unauthorized reconstruction, violation of the integrity of walls, partitions and ceilings, installation of networks that distort the original appearance of the property - eliminate them and bring the property back to its previous appearance and within the period determined by the unilateral decision of the lessor;

immediately notify the lessor of any damage, accident or other event that causes (or threatens) damage to the property and promptly take measures to prevent the threat of further damage to the property;

maintain the façade of the building (structure) in which the premises are rented in proper order and carry out its repairs within the time limits established by the lessor;

transfer the object according to the acceptance certificate upon its release to the lessor in proper form, taking into account normal wear and tear, with all inseparable improvements made, carrying out routine repairs in advance, paying for repairs to the lessor according to the estimate presented to him, with properly functioning utility networks and electrical equipment.”

However, it will not be possible to recover funds from the tenant if the agreement does not provide for a penalty for specific violations, and losses cannot be proven.

For example, before handing over the property to the landlord, the tenant removed the antennas from the roof of the building. The latter went to court. He considered that he had incurred losses. The damage was caused by the tenant because rainwater flooded through holes in the roof. The court rejected the claim. The plaintiff did not prove that the losses arose as a result of the actions (inactions) of the defendant, breach of obligations or causing harm ().

The tenant is responsible for the property from the date of transfer of the leased item

The risk of accidental loss or accidental damage to the leased property passes to the tenant at the moment he receives this property. The parties have the right to determine a different procedure in the contract (Article 669 of the Civil Code of the Russian Federation).

If the parties have distributed the risks in the contract, this is followed in case of accidental destruction of the object

When the parties enter into an agreement, the transfer of ownership becomes controversial. Questions arise when it comes to delivery. Each party seeks to place risks on the other. For example, the seller plans to relieve himself of responsibility for the item from the moment of transfer to the carrier:

“The seller’s obligation to transfer (deliver) the products to the buyer is considered fulfilled, the ownership of the products and the risk of accidental loss or accidental damage passes to the buyer: when transporting by rail - from the moment the products are delivered by the seller (shipper) to the first carrier (the date is determined by the date stamp of the departure station in the railway waybill)".

If the buyer signed the contract in this version and did not receive the goods (or received them, but of poor quality), it is necessary to study the circumstances of the case. The violation could have occurred due to the fault of the supplier. For example, he could allow the cars to remain idle or otherwise violate his obligations. In such a situation, you can claim damages ().

Responsibility for accidental death and damage under the DDU passes according to the act

To hand over the property, the developer sends a notice. A participant in shared construction acquires the rights to an apartment under a deed. If he evades acceptance, the developer draws up such a document unilaterally and sends a copy to the party. The parties stipulate the corresponding procedure in the agreement:

“The developer’s obligations are considered fulfilled from the moment the parties sign the acceptance certificate for the shared construction project or draw up a unilateral act or other document on the transfer of the shared construction project.”

If the construction participant does not prove the presence of deficiencies that prevented the object from being accepted, the risks will be transferred to it from the date of the acceptance certificate.

For example, the shareholder did not recover the costs of eliminating deficiencies and compensation for moral damage. The developer invited construction participants for acceptance, and the plaintiff refused to sign the act, but did not confirm the presence of defects. The facility complied with GOSTs, SNiPs and other requirements. The court concluded that the plaintiff received the apartment on the day the developer drew up a deed and sent a copy to the owner. This meant that from the specified date the risk of accidental death or damage to the apartment passed to the plaintiff. The plaintiff received the keys a year later, but this had no legal significance, the house complied with the standards (appeal ruling of the Moscow City Court dated October 16, 2017 in case No. 33-41789/2017).

Courts reduce the penalty if the company has violated its obligation to insure the risk, but no negative consequences have occurred

When the subject of the contract is expensive equipment or a capital construction project, the parties prefer to insure the risks:

"An investor for sixty calendar days from the date of concluding the investment contract, he is obliged to insure the risk of accidental loss of the object and provide the customer with a copy of the insurance contract and the original (for verification) or a notarized copy.”

To ensure that the contractor fulfills his obligation on time, the customer may impose penalties. If a party breaches such an obligation, he is obliged to pay a penalty. In this case, the court has the right to reduce the amount of the fine if insurance was issued and no negative consequences occurred ().