Risk of accidental death or. The risk of accidental loss of the item of sale passes to the buyer

Risk accidental death- the risk of loss of goods (work results) due to random circumstances.

The norms of the Russian Civil Code, as well as the contract, determine which party to the transaction bears the costs if the goods (result of work) are destroyed.

Definition from regulations

The risk of accidental death or accidental damage to property is borne by its owner, unless otherwise provided by law or contract (Article 211 of the Civil Code of the Russian Federation).

A comment

The risk of accidental loss of property, as its name suggests, is the risk that this property may be destroyed or damaged. Regulatory acts, regulate who bears the risk of accidental death. As a general rule, this risk is borne by the property owner. At the same time, the risk may be assigned to another person by agreement or law.

So, for example, in international trade it is customary to use transaction terms according to INCOTERMS rules. On January 1, 2011, new rules came into force International rules interpretation of trade terms "Incoterms 2010 (ICC Publication No. 715)". These rules establish, for the variant of contract terms chosen by the parties, the moment when the risk of accidental loss of the goods passes from the seller to the buyer.

For a purchase and sale agreement provides (Article 459 of the Civil Code of the Russian Federation):

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

2. Risk of accidental death or accidental damage to goods, sold while it is in transit, passes to the buyer from the moment the purchase and sale agreement is concluded, unless otherwise provided by such an 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.”

For a construction contract provides (Article 741 of the Civil Code of the Russian Federation):

"1. The contractor bears the risk of accidental loss or accidental damage to a construction project, which is the subject of a construction contract, before acceptance of this project by the customer.

2. If the construction project, before its acceptance by the customer, is lost or damaged due to the poor quality of the material (parts, structures) or equipment provided by the customer or the execution of erroneous instructions from the customer, the contractor has the right to demand payment of the entire estimated cost of the work, provided that he has fulfilled the duties provided for in paragraph 1 of Article 716 of this Code."

It should be noted that for accounting and tax purposes the fact of the transfer of the risk of accidental death is not very important. For these purposes, the fact of the property with which it is associated and, accordingly, the occurrence of tax obligations is much more important. Often, ownership and the risk of accidental death pass at the same moment, but this is not always the case.

Important court decision

The signing of interim work acceptance certificates does not mean that the risk of destruction of the object is transferred to the customer.

The contractor carried out the construction of the administrative building of the river shipping company. The spring flood of the river, accompanied by a rise in water above the maximum levels, washed away the foundation, and the contractor was forced to redo the work on its construction. By presenting them for payment, the contractor believed that since the acceptance of the relevant work was carried out according to acts of form N KS-2, the risk of their destruction passed to the customer.

Arbitration court refused to satisfy the claim for the following reasons.

According to paragraph 3 of Article 753 of the Civil Code of the Russian Federation, in the event of acceptance of the result of a stage of work, the customer bears the risk of death or damage to property that did not occur through the fault of the contractor.

The contract did not specify the stages of work.

The acts referred to by the plaintiff confirm only the completion of interim work to carry out settlements. They are not an act of preliminary acceptance of the result of a separate stage of work, with which the law associates the transfer of risk to the customer.

The risk of accidental death or accidental damage to a construction project prior to acceptance of this project by the customer, as specified in Article 741 of the Civil Code of the Russian Federation, is borne by the contractor.

In such circumstances, the foundation of the building must be restored at the expense of the contractor and the customer reasonably refused to reimburse the cost of re-work.

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.

Commentary on Article 459 of the Civil Code of the Russian Federation

1. In relation to a purchase and sale agreement, risk is recognized as loss or damage to the goods sold that occurred for reasons beyond the control of the seller and buyer due to circumstances for which they, in accordance with current legislation they don't answer.

Losses of goods during transportation associated with the properties of the goods (glass, vegetables, etc.), its conditions (for example, transportation of bulk goods - soil, gravel, etc. - on open vehicles) and the duration of transportation, practice recognizes as a type of accidental loss or damage to the goods. Previously, the norms for such losses (natural loss) of specific types of goods were determined government agencies logistics and trade management. When concluding a contract, the parties may stipulate the application of these norms or agree on other norms of natural loss. As a general rule, such losses are attributed to the owner. However, the contract may agree on a different distribution between the parties of losses caused by the natural loss of goods during transportation.

2. The transfer of the risk of accidental loss or accidental damage to the goods depends on the moment the seller fulfills the obligation to transfer the goods. As a general rule, the risk passes to the buyer from the moment when, in accordance with the law or contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer (see commentary to Article 458). Other rules on the transfer of risk may be provided for in the contract.

3. Determining the moment of risk transfer is of particular importance when the contract provides for the delivery of goods to the buyer at his place of residence (location) or another place specified by him or the provision of goods at the place of his location at the disposal of the buyer. In these cases, two situations are possible, depending on which the moment of risk transfer will be determined.

If the buyer accepts the goods delivered or placed at his disposal in accordance with the terms of the contract, the risk passes to him from the moment the goods are delivered.

In case of violation by the buyer of the contract (for example, delay in accepting the goods) or refusal without legal grounds to accept the goods, the risk of accidental loss passes to the buyer from the moment of delivery of the goods or from the moment when the goods are considered to be placed at his disposal (see commentary to Art. 458).

Goods not accepted by the buyer on legally, remains in the possession of the seller, who bears the risk of its accidental loss or damage.

4. Paragraph 2 of the commented article establishes the rule for the transfer of the risk of accidental loss of goods sold while they are in transit. The need to sell such goods may arise when its transportation continues long time, for example by sea or in mixed traffic.

5. The moment of transfer of ownership of the goods to the buyer is determined by general rules, provided for in Art. 223 Civil Code.

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 an agreement or business customs. The condition of the agreement that the risk of accidental loss or accidental damage to the goods passes to the buyer from the moment the goods are delivered to the first carrier; at the buyer’s request, it 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 it.

Commentary on Article 459 of the Civil Code of the Russian Federation

In the purchase and sale relationship, the loss of goods or damage to them that occurs accidentally, due to circumstances beyond the control of either the seller or the buyer, is considered a risk. As a general rule, this risk, unless otherwise provided by law or contract, passes from the seller to the buyer at the moment the seller fulfills the obligation to transfer the goods. From this moment on, the seller is released from liability to the buyer for the fate of the goods, its quality and quantity.

If the goods are sold while they are in transit, the risk of their accidental loss and accidental damage passes to the buyer at the time of concluding the purchase and sale agreement, unless otherwise follows from this agreement itself or business customs.

In cases where the moment of transfer of goods is their delivery to the carrier, the risk of accidental loss or damage may be assigned to the seller if the latter was aware of the loss or damage to the goods at the time of concluding the contract. If this circumstance exists, the court, at the buyer’s claim, recognizes the condition of the agreement on the transfer of risk to the buyer as invalid.

Another comment on Article 459 of the Civil Code of the Russian Federation

1. Comment. Art. establishes the moment when the risk of accidental loss of the goods passes to the buyer, i.e. negative property consequences arising as a result of its destruction or damage due to circumstances for which neither party to the contract is responsible (for more details, see: Civil law: Textbook: In 3 vols. T. 2 / Edited by A.P. Sergeev. M., 2009. P. 23 - 24 (author of the chapter - V.V. Rovny)). As a general rule, this risk passes from the seller to the buyer from the moment when the seller is considered to have fulfilled his obligation to transfer the goods (clause 1 of the commentary article). This rule is optional and can be changed by agreement of the parties.

2. The moment when the seller’s obligation to transfer the goods to the buyer is considered fulfilled is provided for in the contract. If such a point is not established by the contract, it is determined according to the rules of Art. 458 Civil Code (see commentary to it).

3. Point 1 comment. Art. determines only the moment of transition of the risk of accidental death. There is no comment on the question of the moment of transfer of ownership to the buyer. Art., nor any other norm of § 1 Ch. 30 Civil Code is not regulated. Accordingly, it must be determined according to the general rules of Art. 223 Civil Code.

According to paragraph 1 of Art. 223 of the Civil Code, the right of ownership to the acquirer of a movable thing under an agreement passes from the moment of its transfer. Actions recognized as the transfer of a thing are exhaustively listed in paragraph 1 of Art. 224 of the Civil Code, which is a mandatory norm and does not contain any indication of the possibility of changing it by law or agreement of the parties.

Provisions clause 1 comment. Art. (as well as Article 458 of the Civil Code) do not use the concept of “moment of transfer”, but operate with the category “moment when the seller is considered to have fulfilled his obligation to transfer.” The use of the term “considered” within the last category shows that the legislator thereby introduces a certain fiction of transfer. By establishing it, the Civil Code encourages the buyer to properly fulfill his creditor obligation to accept the goods. In the case of proper behavior, the moment when the seller is considered to have fulfilled his obligation usually coincides with the moment it is actually delivered to the buyer or handed over to the carrier (communication organization) for delivery to the buyer. Accordingly, both the risk of accidental loss of a thing (clause 1 of the commentary article) and the right of ownership (clause 1 of Article 223, clause 1 of Article 224 of the Civil Code) are transferred to the buyer at the same time. At the same time, if the buyer is late in accepting the goods placed at his disposal, the seller considers him to have fulfilled his obligation (paragraph 3, paragraph 1, article 458 of the Civil Code) and the risk of accidental death passes to the buyer (paragraph 1 of the commentary article). However, since the actual transfer of the thing did not occur, he did not have the right of ownership in relation to this thing (for more details, see: Haskelberg B.L., Rovny V.V. Individual and generic in civil law. 2nd ed., revised and additional M., 2004. pp. 103 - 104, 115 - 116).

4. Point 2 comments. Art. sets special rule on the transfer of the risk of accidental loss of goods sold while they are in transit. In this case, all risks (unless otherwise provided by the contract or business customs) pass to the buyer from the moment the contract is concluded. This rule, apparently, was formulated taking into account the situation of registering the transportation of goods using a bill of lading, when the conclusion of a contract for the sale and purchase of goods in transit is accompanied by the transfer to the buyer of the rights certified by such a bill of lading. For such cases, the solution proposed in paragraph 2 of the comment. Art., is adequate, since the buyer almost simultaneously acquires not only the risks associated with the transported goods, but also the ownership of it (see paragraph 1 of Article 223, paragraph 3 of Article 224 of the Civil Code). At the same time, in other situations, the rule is paragraph 2 of the comment. Art. can hardly be considered successful. It diverges from the general principles of risk distribution and leads to an unjustified burden of risk on a non-owner buyer who has not committed any violations. In addition, when selling goods that are in transit, the buyer, not being a participant in the transportation, does not have the opportunity to minimize the corresponding risks, which also indicates the unfairness of the rules of paragraph 2 of the comment. Art. It should be agreed that the moment of fulfillment of the seller’s obligation (and the moment of transfer of risk) in the situation under consideration is more appropriate to consider: a) delivery of the goods to the buyer (if the contract provides for the obligation to deliver the goods - see paragraph 2, clause 1, article 458 of the Civil Code); b) redirection of cargo with a change in the consignee (if the contract does not provide for delivery of goods) (see: Haskelberg B.L., Rovny V.V. Individual and generic in civil law. P. 117 - 118).

5. Provisions of paragraph. 2 p. 2 comments. Art. are aimed at protecting the buyer from the actions of an unscrupulous seller. The condition of the contract on the transfer to the buyer of the risk of accidental loss of the goods from the moment of delivery to the first carrier (following from paragraph 2 of Article 458 and paragraph 1 of the commentary article) may be declared invalid at the request of the buyer if the seller did not inform him about the unsafe condition of the goods , although he himself knew or should have known about it. As a result, all risks must be borne by the seller.

Commentary to Art. 459 Civil Code of the Russian Federation

1. In science, including in the science of civil law, there are different interpretations the concept of “risk” and its varieties. Article 2 Federal Law dated December 27, 2002 N 184-FZ “On Technical Regulation” defines risk as the likelihood of causing harm to the life or health of citizens, property of individuals or legal entities, government or municipal property, 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 goods is the risk of bearing negative consequences in connection with damage or cessation of existence of the goods 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 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.”

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Origin, termination and protection of property rights: Article-by-article commentary on chapters 13, 14, 15 and 20 Civil Code 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. General principle(“casum sentit domirms”) placed the consequences of accidents that may befall a thing on the owner of this 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 of a dispositive 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 features of the transfer of a thing, which is important in terms of quality general norm and 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 an indication that the goods are ready for delivery on time, stipulated by 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 species 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.