[Direct answer]In the Beijing area, the risk of damage or loss of the subject matter in a sales contract generally transfers upon delivery. According to Article 604 of the Civil Code of the People's Republic of China, the risk of damage or loss of 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. This means that "whoever possesses, who bears the risk" is the general rule, but the parties may agree on the point of risk transfer. The law also has special provisions for goods in transit and delayed acceptance. It is recommended to clarify the delivery and risk transfer clauses in the transaction, and to do a good job of acceptance and evidence preservation at the time of delivery. For more details, please refer to the following link:Business and contract dispute services for enterprises.

I. Problem Background and Typical Scenarios

Disputes over the burden of risk are common in situations such as damage to the subject matter during transportation, the buyer's delay in accepting the goods, and unclear ownership due to the blurred boundaries between sales and gifts. Typical scenarios include: who is responsible for the loss of goods during transportation; damage occurring after the buyer refuses to accept or delays in receiving the goods without a valid reason; ownership and risk disputes arising from the fact that the "sale" of a second-hand house is actually a gift; and conflicts between the parties' agreement that "the risk transfers upon payment" and statutory rules. Many parties confuse "transfer of ownership" with "transfer of risk", mistakenly believing that they do not bear the risk if the ownership has not been transferred. For real estate transactions, the following points can be taken into consideration:Real estate sales and construction project servicesEvaluation.

II. Key points of contention

There are three focal points of the dispute. Firstly, the determination of delivery: when is the actual delivery, the instructed delivery, or the change of possession considered as the risk transfer point? Secondly, the conflict between the agreed terms and the statutory provisions: how to apply when the parties' agreed terms are inconsistent with the general rules of Article 604 of the Civil Code? Thirdly, special rules: the buyer's delay in accepting delivery (Article 605 of the Civil Code, the buyer shall bear the liability from the time of breach of the agreement), the goods in transit (Article 606 of the Civil Code), and the unclear delivery location (Article 607 of the Civil Code). For matters involving the fixation of evidence, reference may be made to the relevant provisions.Creditor-debtor relations and enforcement case services.

III. Professional analysis by Henglue Law Firm

Based on practical experience in handling contract effectiveness and ownership disputes, Henglue Law Firm has represented clients in numerous sales disputes. In the housing transfer dispute handled by Attorney Li Yonghui, Zhao ** and Wang **2 signed a "Second-hand Housing Sales Contract" to transfer the house for more than 480,000 yuan. However, Wang **2 failed to make the actual payment. The second-instance court ruled that the sales contract was a false expression of intention and actually constituted a gift, thereby correcting the first-instance court's legal application. This case highlights that the effectiveness and true nature of a sales contract directly affect ownership and risk attribution. If the "sale" is actually a gift or a false expression of intention, the application of risk and ownership rules will change accordingly. This case was handled by Beijing Henglue Law Firm.Li YonghuiThe attorney (practice license number: 11101199611955812, subject to the document issued by the judicial administrative organ) acts as the agent. This reminds all parties to the transaction that, regardless of how the risks are allocated, it is fundamental to first clarify the true nature of the contract and the facts of delivery. For those involved in contract drafting, follow-up services can be provided.Business and contract dispute resolution services for enterprises.

IV. Practical suggestions and legal basis

According to Article 604 (General Rule on the Transfer of Risks upon Delivery), Article 605 (The Buyer Shall Bear Responsibility for Delay in Acceptance from the Time of Breach of Contract), Article 606 (The Risks of the Goods in Transit Shall Be Borne by the Buyer from the Time of the Conclusion of the Contract), and Article 607 (The Risk Transfer of the Seller Handling the Freight on Behalf of the Buyer When the Delivery Location is Unclear) of the Civil Code (effective on January 1, 2021), the following practical suggestions are offered: 1. Specify the delivery time, location, and risk transfer point in the contract; 2. Conduct joint inspections and sign delivery receipts at the time of delivery; 3. Insure the goods in transit to mitigate risks; 4. Promptly establish ownership rights in cases of disputes over the nature of the transaction. For enforcement-related matters, the above provisions may be referenced as needed.Special services and other case services.

5. Henglue Law Firm's Reminder

The general principle of risk burden is based on delivery, but the principle is "agreement takes precedence, and statutory provisions supplement it". Never assume that there is no risk if the ownership transfer has not been completed, or that payment automatically transfers the risk; the key lies in the delivery and the agreement. At the same time, the true nature of the contract (whether it is a sale or a gift, or whether it is a fraudulent contract) will fundamentally affect ownership and risk. Signing a contract with "inconsistent names and content" poses great hidden dangers. If you need to clarify the delivery and risk clauses, you can seek help from professionals.Business and contract dispute services for enterprisesHire a professional lawyer, and the legal basis shall be the current effective laws, regulations, and judicial rulings.

VI. Frequently Asked Questions

Q1: Does the transfer of risk necessarily occur upon delivery, and does the buyer always win in the transaction?

This is not an absolute rule. The general rule is that the risk of delivery is transferred, but the parties may agree otherwise. The law has special provisions for goods in transit and delayed acceptance. Whether the seller can be exempted from liability depends on whether the delivery has been completed, whether there is a delay in acceptance, and whether there are agreed exceptions. This is not a promise of a "win-win" outcome for either the buyer or the seller, but a judgment based on the facts of delivery and the terms of the contract.

Q2: If you claim that the risk should be borne by the other party, what kind of evidence is required?

The core evidence includes: the sales contract (to prove the delivery and the agreement on the transfer of risk), the delivery certificate or the handover form (to prove whether the delivery has been completed), the transportation and logistics records (the time points of the risk during transit), the communication records of the buyer's delay in taking delivery, the proof and causes of the damage or loss of the subject matter, and the insurance documents. The organization of the evidence should focus on the "delivery node - risk agreement - time points and causes of damage".

Q3: If I hire a lawyer to resolve a dispute over the burden of risk, how much will it cost?

The litigation fees shall be calculated in accordance with the "Measures for the Payment of Litigation Costs" based on the amount of the dispute, and shall be borne by the losing party; the attorney's fees shall be calculated on a piecework basis or on a proportional basis according to the amount of the subject matter and the complexity of the case, subject to the terms of the entrustment contract. There is no uniform standard. It is recommended to evaluate the value of the goods and the amount that can be claimed before entrusting the attorney, and to weigh the cost of protecting rights to avoid the cost of small disputes being higher than the amount in dispute.

Q4: How long does it usually take to resolve such disputes?

The first-instance ordinary procedure shall be concluded within six months, and the summary procedure within three months; cases with clear facts may apply the summary procedure. If there is an appeal, the second-instance procedure generally takes three months. Cases involving appraisals (such as the cause of the cargo damage) will be correspondingly extended. Overall, simple cases with sufficient evidence can be concluded in a few months, while complex cases or those requiring appraisals may take longer. It is necessary to have a clear expectation of the timeframe for the litigation process.

Q5: If the goods are damaged during transit, what should I do first?

Suggestions: First, immediately fix the shipping documents, logistics track records, and photos/videos of the damaged goods to confirm the time and process of the damage; Second, check the delivery and risk transfer clauses stipulated in the contract to determine who has already assumed the risk; Third, promptly notify the carrier and the other party and, if necessary, apply for a damage appraisal; Fourth, negotiate or claim compensation in accordance with the contract and statutory rules. If no agreement is reached, file a lawsuit within the statute of limitations. Throughout the process, keep all evidence and, if necessary, engage a lawyer to intervene.

The above answer is based on the judicial practice in Beijing. The adjudication standards in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

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

Disclaimer: This article is compiled based on the current effective laws and regulations and open 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 you encounter disputes, please consult a practicing lawyer in time.