(. . .)
(1) If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk.
(2) Nevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise.
The rules for the transfer of risk in this article are based on the "control" theory and do not turn, as does OSGA s.21, on the locus of title at the time of loss. The common law rule of res perit domino has been widely criticized over the years and in practice it is often by-passed either because of the courts' willingness to find that title had not passed to the buyer or because of the use of trade terms, such as f.o.b. or c.i.f., which adopt the control test of risk of loss. The title test has been abandoned in UCC 2-509 and 2-510 and its abandonment is also recommended in the OLRC Sales Report, p. 280. There is no reason therefore to feel concern about the abandonment of the title test in the convention. It would in any event have been an inappropriate test for CISG to adopt in view of the fact that the convention contains no rules for the transfer of title in the goods to the buyer.
(. . .)
Go to entire text of Ziegel Commentary
Go to Database Directory || Go to Bibliography