RYZYKO PRZYPADKOWEJ UTRATY LUB USZKODZENIA TOWARÓW SPRZEDAWANYCH W TRAKCIE PRZEWOZU DROGĄ MORSKĄ
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Date
2003
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Wydział Prawa i Administracji UAM
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THE RISK OF ACCIDENTAL LOSS OF OR DAMAGE TO MERCHANDISE SHIPPED BY SEA
Abstract
A substantial period of time often passes between entering into a sales agreement and its
execution. During this period goods can be shipped, stored or be under other circumstances
that render impossible proper control over them by both vendor and buyer and at the same time
increase the risk of accidental loss of or damage to the goods. The risk of accidental loss
or damage entails encumbering one of the parties to the agreement with negative consequences
of such events. From the standpoint of the buyer, such ramifications amount to the obligation
to pay, whether or not the goods have been damaged or lost and the possibility of demanding
the fulfillment of mutual obligations from the vendor could not be exercised.
The determination of share in the risk of accidental loss or damage of goods is a difficult
task due to conflict of interest existing between the parties. The objective of the vendor is to
transfer the risk as soon as possible while the buyer is eager to accept the risk as late as possible.
This issue becomes crucial for goods that are shipped by sea (the so-called „goods at
sea” since sea shipment in most cases takes place over long distances.
The traditional stance says that the transfer of risk occurs at the moment of entering into
an agreement, transfer of ownership, transfer of physical control over merchandise and also
at the point when the vendor has fulfilled all contractual obligations. In terms of „goods at
sea”, new solutions are being explored, guided by the rule that the party that can obtain
cheaper insurance against loss or damage of merchandise and is able to be paid effectively
and without unnecessary delay for the loss or damage by the insurer and shipping company
as well as wield better control over the merchandise during shipment, should be obliged to be
encumbered with the risk.
Article 68 of CISG provides for special rules on the transfer of risk of loss or damage of
the goods during shipment. The lack of a corresponding regulation in the Polish law should be
compensated for by an appropriate interpretation of Articles 544 and 548 of the Civil Code.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 65, 2003, z. 3, s. 75-96
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ISBN
ISSN
0035-9629