[Direct answer]In the Beijing area, the conclusion is that the risk of loss or damage to the subject matter is generally determined by the time of delivery. Before delivery, it is borne by the seller, and after delivery, it is borne by the buyer. According to Article 604 of the Civil Code of the People's Republic of China, the risk of loss or damage to the subject matter shall be borne by the seller before the delivery of the subject matter, and by the buyer after the delivery, unless otherwise provided by law or agreed by the parties; Article 605 stipulates that if the buyer fails to deliver the subject matter in accordance with the agreed time limit due to the buyer's reasons, the buyer shall bear the risk from the time of breach of the agreement. If the seller is responsible for the transportation and delivers the goods to the carrier, the risk burden shall be determined in accordance with the agreement and the law. The carrier shall bear the liability for the loss or damage to the goods during the transportation, but shall not bear the liability if it can prove that the loss or damage is caused by force majeure, the natural characteristics of the goods themselves, or reasonable wear and tear, or the fault of the consignor or the consignee. It is recommended to specify the delivery location and the time of risk transfer in the contract.

I. Problem Background and Typical Scenarios

When goods are damaged or lost during transportation, buyers and sellers often argue over who should bear the losses. Typical situations include: damage to goods caused by traffic accidents during transportation; moisture, spoilage, or shortages of goods; loss caused by improper storage by the carrier; losses occurring during the buyer's refusal to accept or delay in picking up the goods; and losses that are difficult to compensate for due to lack of insurance or insufficient insurance coverage. When the Beijing District Court handles such cases, it usually first determines the risk burden based on the provisions of the sales contract and the delivery status, then reviews whether the carrier is at fault and whether it meets the exemption conditions, and allocates responsibilities accordingly.

II. Key points of contention

First, the relationship between the burden of risk and the transfer of ownership. Second, how to determine the delivery time and whether delivery to the carrier is deemed as delivery. Third, how to bear the risk when the delivery is delayed due to the buyer's reasons. Fourth, the composition of the carrier's liability for compensation and the circumstances of exemption from liability. Fifth, the path taken by the shipper and the consignee to claim against the carrier. Sixth, the relationship between the cargo insurance compensation and the responsibilities of the buyer and the seller. Seventh, whether the risk clauses agreed upon in the contract are valid. These issues determine who will bear the losses.

III. Professional analysis by Henglue Lawyers

Based on Henglu Lawyer's practical experience in handling sales contracts and transportation disputes, there are four key points to address such issues. First, the general rule: According to Article 604 of the Civil Code of the People's Republic of China, the risk transfers with the delivery of the goods. Before delivery, the seller bears the risk; after delivery, the buyer assumes the risk, unless otherwise stipulated in the contract or by law. Second, special circumstances: According to Article 605, if the buyer fails to take delivery of the goods on time due to the buyer's reasons, the risk shall be borne by the buyer from the time of breach of contract. If the seller is responsible for transportation and has already delivered the goods to the carrier, the risk shall generally be transferred to the buyer, subject to the provisions of the contract and the law. Third, the carrier's liability: According to Article 832 of the Civil Code of the People's Republic of China, the carrier shall bear the liability for the damage or loss of the goods during transportation, unless it can prove that the damage or loss is caused by force majeure, the natural characteristics of the goods themselves, reasonable wear and tear, or the fault of the consignor or consignee. Fourth, path selection: After the buyer or seller assumes the risk, they may claim compensation from the carrier according to the transportation contract; at the same time, they may apply for insurance compensation. Note that the insured cannot receive duplicate compensation. Fifth, clause design: The contract should clearly specify the delivery location, delivery method, and the time of risk transfer, and stipulate the responsibility for transportation and insurance. Sixth, evidence points: Transportation documents, handover records, cargo damage inspections, and insurance documents are the basis for determining liability and claiming compensation. They should be fixed promptly after the accident occurs.

IV. Practical suggestions and legal basis

Practical suggestions: First, specify the delivery location, delivery method, and the point of risk transfer in the contract; Second, stipulate the party responsible for transport and insurance, and if necessary, have the seller purchase insurance; Third, in the event of cargo damage during transportation, promptly secure the transportation documents, handover records, and cargo damage inspection reports; Fourth, claim compensation from the carrier in accordance with the transportation contract, and pay attention to the carrier's exemption clauses; Fifth, make rational use of insurance compensation to avoid receiving duplicate compensation; Sixth, when multiple parties are involved, clarify the different rights of claim under the sales contract and the transportation contract. For more information, please refer to the platform's services.Business and contract disputes in enterprises,Creditor's rights and debts, and enforcement、\nFinancial capital and cross-border transactions involving foreign entities.、Real estate transactions and construction projectsAndSpecial servicesLegal basis: Articles 604, 605, and 832 of the Civil Code of the People's Republic of China (all of which came into effect on January 1, 2021). The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglue Law Firm's Advice

Firstly, the risk burden generally transfers with the delivery, with the seller assuming responsibility before delivery and the buyer assuming responsibility after delivery. Secondly, if the buyer causes a delay in delivery, the risk shall be borne by the buyer from the time of breach of contract, which requires special attention. Thirdly, after the seller arranges transportation and delivers the goods to the carrier, the risk usually transfers to the buyer. Fourthly, the carrier shall bear compensation liability for damage or loss of goods during transportation in accordance with the law, but there are statutory exemptions from liability. Fifthly, the contract should clearly specify the time of delivery and risk transfer to avoid disputes after the fact. Sixthly, it is necessary to make proper use of insurance compensation and claims under the transportation contract to avoid receiving duplicate compensation. Seventhly, transportation documents and inspections of damaged goods are key evidence, which should be fixed at the first time.

VI. Frequently Asked Questions

Q1: If the goods are damaged during transportation, who will bear the loss?

Generally, it is determined based on the time of delivery. According to Article 604 of the Civil Code of the People's Republic of China, the seller shall bear the risk before delivery, and the buyer shall bear the risk after delivery. Where there are provisions in the contract or laws to the contrary, those provisions shall prevail. If the seller has already delivered the goods to the carrier, the risk usually shifts to the buyer, who then claims compensation from the carrier. The specific determination shall be based on the provisions of the contract.

Q2: If the goods are damaged after the seller ships them, can the buyer refuse to pay?

It depends on the risk burden and the agreement. If the risk has been transferred to the buyer upon delivery, the buyer should generally make payments as agreed and then claim compensation from the carrier or under insurance; if it is agreed that the seller is responsible for delivery and the risk has not been transferred, the seller may bear the consequences of the damage to the goods. It is recommended to check the contract terms and delivery evidence to determine the responsibility.

Q3: Is the carrier obligated to compensate?

Not necessarily. According to Article 832 of the Civil Code of the People's Republic of China, the carrier shall bear liability for compensation for damage to or loss of goods during the transportation process. However, if it can be proven that the damage or loss was caused by force majeure, the natural characteristics of the goods themselves, reasonable wear and tear, or the fault of the consignor or consignee, the carrier may not bear liability. The liability for compensation and the circumstances of exemption from liability shall be determined based on the evidence.

Q4: If I buy insurance, who will compensate for the damage to the goods?

You can apply for compensation according to the insurance contract. If you are the insured, you can claim compensation from the insurance company for losses within the scope of insurance coverage. For any shortages after the insurance payment, you can still claim compensation from the responsible party according to the sales contract or transportation contract. It should be noted that you cannot receive duplicate compensation for insurance payments and liability indemnities. You should fix the evidence in time and apply for compensation according to the procedures.

Q5: What should I do if there are no risk clauses in the contract?

General rules of applicable law. According to the relevant provisions of the Civil Code of the People's Republic of China on sales contracts, the risk transfers with the delivery, and the unspecified matters shall be handled in accordance with the statutory rules. It is recommended to add provisions on the delivery location, delivery method, and the time of risk transfer in subsequent contracts to avoid disputes and facilitate the provision of evidence.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglue Lawyers on specific situations.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, so as to avoid missing the statutory time limit.Business and commercial legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If a dispute arises, please consult a practicing lawyer in time.