In our previous legal circular, we addressed the question of the possibility of contractually regulating obligations connected with the taking over of goods by a consumer from a carrier. We would hereby like to build upon this topic with the issue of the transfer of risk of damage to a thing, which is closely linked to this subject.

The issue of the transfer of risk of damage to a thing in the purchase of movable things is generally regulated in Section 2121 et seq. of the Civil Code. Although the Civil Code uses the term risk of damage to a thing, it does not define it in any way. The term risk of damage to a thing must be understood as the risks of consequences connected with the loss, destruction, damage or any depreciation of a thing. As a general rule, the risk of damage to a thing passes to the buyer upon taking over the thing, or upon the occurrence of another fact which replaces the taking over.

Pursuant to Section 2087 of the Civil Code, the seller has an obligation to hand over the goods to the buyer. However, in a legal sense, it is necessary to distinguish from the handing over of goods the so-called dispatch of goods, which specifies cases where the seller is to hand over the goods to a carrier and thus dispatch the goods to the buyer.

In the event that the thing is being dispatched to the buyer, in our opinion, Section 2090(2) of the Civil Code shall apply, which implements Article 20 of the Directive on Consumer Rights and which excludes the application of Section 2090(1) of the Civil Code to consumer relationships. In Section 2090(1) of the Civil Code, the legislator has generally provided that where the seller is to dispatch the thing, he hands over the thing to the buyer by handing it over to the first carrier for carriage to the buyer and enables the buyer to exercise rights arising from the contract of carriage against the carrier. As stated above, however, this provision should not apply to relationships with consumers, with the exception of those cases where the consumer as buyer has designated the carrier without such carrier having been designated by the seller. In the case of a consumer buyer, a special regulation should apply which lays down the conditions for handing over the thing to the consumer. Specifically, we have in mind Section 2159 of the Civil Code, which provides that the taking over of the thing by the buyer (handing over by the seller) occurs at the moment of delivery, when ownership of the subject matter of the purchase also passes.

In this connection, it is also appropriate to point out the existence of Section 2123 of the Civil Code. This regulates the situation where goods are dispatched and goods are transported to the buyer, it being provided that the risk of damage to the thing passes to the buyer upon handing over the thing to the carrier at this place, and where no place has been agreed, upon handing over to the first carrier for carriage to the place of destination. In our opinion, it is not possible to apply this provision to consumer relationships, because the consumer would bear the risk of damage to the thing already at a time when he would not physically have the thing in his possession (in his power), nor would he be its owner. In this connection, it is possible to recall the European legal regulation, where within the framework of the Directive on Consumer Rights it is expressly stated that the risk of damage to or loss of the goods passes to the consumer (in the case of contracts where the trader dispatches the goods to the consumer) only at the moment when he himself or a third party other than the carrier, designated by the consumer, acquires physical possession of the goods. In our opinion, therefore, the application of Section 2123 of the Civil Code mentioned by you to consumer relationships is only possible in the aforementioned, rather hypothetical, case where the consumer buyer chooses the carrier (without cooperation with the seller) and the goods will be dispatched to a place designated by him.

In conclusion, it is therefore possible to state that having regard to the above, we are of the opinion that the risk of damage to the thing passes to the consumer only at the moment of taking over the thing from the carrier.

Lukáš Barnet

Law Office Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal advisory service

This text was originally prepared by the law office Mašek, Kočí, Aujezdský in cooperation with the association Association for Electronic Commerce (APEK) as legal circular No. 08/2018 intended for members of this association.

This text was translated from Czech to English using an AI translator.