Professional Documents
Culture Documents
impact of contract of carriage of Goods Sold on Passing of Risk in
Accordance with INCOTERMS Rules ( with the comparative study between Iran’s law and
the UN Convention on the Contracts for International Sale of Goods)
Ebrahim Taghizadeh
Department of Law, Payame Noor University, P. O. Box 19395‐4697, Tehran, Iran.
Email: eb_taghizadeh@yahoo.com
Abstract
Under the most legal systems, the sale contract transfers the ownership and the buyer
owns the subject matter of the contract and the seller owns the price paid to him
immediately upon the conclusion of the contract, but because the buyer’s ultimate
purpose is to receive the subject matter and be able to possess it proprietarily, not
merely the ownership being transferred to him, So the question arises that in case of
loss of specific goods without the buyer’s fault before the goods being delivered to him,
the seller remains liable for the loss or the buyer? A more difficult issue is the sale of
goods embodying the contract of carriage. In this case, can you say that the carrier is
liable for damage or loss? Because of the extensive use of certain forms of contract
under the rules of INCOTERMS in international trade and the limited use of it in
internal trade, to sell the goods that are required to carry them from one place to
another, then necessarily those questions mentioned above should be answered in
relation to the INCOTERMS rules during a separate study. In addition, the
comparative analysis of the INCOTERMS rules in association with the Iran’s law and
the Vienna Convention on the international sale of goods could also be useful. The
results of this study indicate that unlike Iran’s law that transferring the risk of loss of
goods requires the delivery of them, but according to the UN Convention on the
Contracts for International Sale of Goods, the risk of loss of the goods before being
delivered may passes to the buyer. Under the INCOTERMS rules, since the carriage of
goods sold accompanies various issues and any failure during the carriage may results in
the delay in delivery of goods and passing of risk, it has been tried to prevent from the
issues arising unreasonably.
1
Introduction
Although under the legal system of Iran, the sale contract transfers the ownership in
compliance with the Imami jurisprudence i. e. it is of possessory nature and the buyer is
the owner of the subject matter of the contract and the seller is the owner of the price
paid to him immediately upon the conclusion of the contract, the buyer’s ultimate
purpose is to receive the subject matter and be able to possess it proprietarily, not
merely the ownership being transferred to him. Therefore, it is provided by the
legislator that in case of loss of specific goods without the buyer’s fault before the goods
being delivered to him, the seller remains liable for the loss.
This study is of importance because the aforementioned rule governs the domestic sales
contracts as well as the international system of sale of goods somehow. Since the goods
are not delivered immediately after the price being paid to the seller in international
sales and there is an interim space between the conclusion of the contract and delivery
of the goods, applying that rule faces some difficulties. Regarding the two following
facts, examining the passing if risk in this kind of contracts is apparently of double
significance both theoretically and practically: Firstly, the international sale contract
usually accompanies some other agreements including the insurance of goods sold,
some arrangements on how to pay the price, and in particular, the carriage of goods
sold, influencing the process of delivering the goods. Secondly, some international
organs such as International Chamber of Commerce have set some contract formats and
provided the traders with them in order to develop, accelerate, and facilitate the
international commercial agreements. It should be noted that in spite of the fact that
the passing of risk and its consequences could be examined in the section relating to the
contract of carriage because of its definite effects on delivering the goods, freight or
reimbursement in the relationship between the parties of the contract of carriage, this
article merely addresses the risk in international sales involving the contract of carriage
concluded under one of the Incoterms rules. The study is presented in seven sections
providing data collected through library research using the method of describing and
analyzing.
2
1‐1‐ Definition
The risk may be described as “the liability of the party who transfers the ownership of
the goods, for the loss of subject matter of the contract, before being delivered to the
party to whom the goods are transferred”. Under recognized rules in all legal systems, in
a sale contract1, the risk for the loss of goods passes from the seller to the buyer by
delivering and then the goods are at the buyer's disposal and he is allowed to possess it
materially or legally and benefit from the advantages, similarly, he bears the liability and
consequently should pay the price in case he hasn’t previously done so. This rule means
that the risk hasn’t passed before delivery and the seller bear the risk of loss up to that
time. It should be noted that some legal systems make some exceptions of the
aforementioned rule in which the risk passes to the buyer before delivery or doesn’t
pass even after delivery. For example, under the incoterm rules, if the buyer fails to
fulfill his contractual obligation on carriage of the goods and taking delivery of them, he
must bear the risk of loss of goods as from the due or reasonable time needed for
fulfilling the commitments. Additionally, under rules governing in Iran, when the buyer
has solely the right to terminate the sale contract (for instance in case of a condition to
terminate the contract in a specific me, or a er 3 days in case of purchasing an animal
or before leaving the meeting2) and when the parties has agreed that the seller bears
the risk of loss even after delivering the goods, the seller remains liable after delivery
and in the case of loss of goods, has to reimburse the price if the buyer has paid it
before (Dezfouli, 1410 AH. p. 157, Hosseini Maraghi, 1418 AH. p 454).
1‐2‐ The Most significant views on the time of passing of risk
The goods may be lost or damaged by an accidental event and not an attributable cause
to the seller or buyer in the space between the conclusion of the contract and delivering
the goods to the buyer3. Now a question arises on when the risk of loss of or damage to
the goods passes to the buyer. The answer determines which of the parties bears the
1
. The risk is not just applied to the sale contract.
2
. Ar cle 453 of the Civil Code
3
.For example, when packing in the store, or during the carriage to the port of origin (in case of carriage by sea), or
during the voyage by sea, or from the port of destination to the buyer’s domicile.
3
liability and its consequences. The rules regulating the passing of risk address the issue
that whether the buyer‐ current owner‐ has to pay the price of goods lost or damaged
even in the case of not taking delivery of them. The views on the time of passing of risk
are as follows:
a) The ownership of the goods and the risk passes to the buyer by conclusion of the
sale contract. Therefore. In case of loss of or damage to the goods, the buyer
must bear the risk as the owner. In accordance with this approach, since the
buyer is the owner of goods and the benefits and is allowed to possess it
materially or legally upon transferring the ownership, he is liable for the damages
and remains responsible for paying the price to the seller, even it the goods has
not yet been delivered. It is accepted in the legal systems of the England, France
and the United States (Soltani Nezhad, 1378, p. 76). This theory is called “price
risk” by one of the thinkers (Romein, A., 2003, p. 268). Being critical to this view,
it may be said that the commitment to deliver the goods or fulfilling an obligation
follow the transfer of the goods and bearing the obligation in commutative
contracts which are concluded for these purposes and holding the buyer liable
for the loss of goods before taking delivery of them is not compatible with
commutative justice and the parties’ common consents.
b) Although the ownership isn’t transferred upon the conclusion of the contract and
before delivering the goods, the buyer is liable for the loss of goods before being
delivered, because the seller has to deliver the goods to the buyer under the
contract and the buyer benefit from the probable advantages. When benefiting,
he must also bear the loss of goods. This theory has emanated from Roman law
and been taken into consideration in general Islamic jurisprudence, in particular
the hanbali and Maleki schools of fiqh invoking two rules4. This argument seems
to be a kind of commutative injustice, contrary to the approaches taken by the
supporters, because, for example, while the buyer is benefiting from the increase
in the price of the goods or probable advantages, he will also suffer from the
decrease of the price, so it may not be justified to hold him liable for the loss
before delivering.
.« »من له اغنم فعليه الغرم« و »الخرلج بالضمان.٤
4
c) The conclusion of a contract does not result in the transfer of ownership and
delivering the goods is required without which the risk will not pass to the buyer.
Under this approach accepted in the legal systems of some countries including
Germany, Austria and Poland, and considered as a view probably acceptable by
some experts of Islamic law (Faqih), whenever the subject matter of sale contract
is lost by force majeure, the seller remains the owner and the buyer has no
liability to pay the price (Katouzian, 1387, p. 204). A thinker is of the opinion that
some legal systems consist of kind of rules entitled “non‐performance risk” under
which even if the goods are lost by accident, the seller is liable to deliver them
and the buyer, in return, has the right to claim an iden cal one (Romein A., 2003,
p. 268). This approach is not defensible in Imami jurisprudence and the laws of
Iran based on which the sale contract is possessory and the ownership is
transferred upon the conclusion even before the delivery. The Vienna Convention
on Contracts for the Sale of Goods signed in 1980 provides that the damage is at
risk of the seller before delivering the goods and passes to the buyer upon
delivery. This Convention address the carriage of goods sold and indicates that if
the contract of sale involves carriage of the goods and the seller is not bound to
hand them over at a named place, the risk passes to the buyer when the goods
are handed over to the first carrier for transmission to the buyer. If the seller is
bound to hand the goods over at a named place, the risk passes to the buyer
when handing them over at that place. Therefore, only in the case of agreeing
otherwise, the risk of the loss of goods passes to the buyer before handing them
over (the Vienna Conven on, Art 66‐69).
d) The ownership transfers upon the conclusion of sale contract and then the goods
belong to the buyer and so the price to the seller. Nevertheless, the risk doesn’t
pass to the buyer before delivering them and in the case the price has been paid,
the buyer has the right to claim the reimbursement and if he has not done so, he
is not bound to. This theory is accepted in the laws of Iran affected by the Imami
jurisprudence.5 Under Ar cle 387 of the Civil Code “if the goods has been lost
5
. Although the Interna onal Conven on of sales of Goods signed in 1964 provides that the nature of the sale
contract in terms of transferring the ownership or imposing an obligation, is subject to the national laws of
countries, it stipulates that the risk passes to the buyer as from the date of delivery and is of the seller before that
time.
5
before delivering to the buyer without the seller’s fault, the sale contract is
terminated and the price shall be reimbursed to the buyer, unless the seller has
gone into claim before the judge or his deputy, then the risk is of the buyer in
that case.” The content of this Article is indicated in some books on Islamic
jurisprudence (Fiqh) invoking the rule entitled “loss of goods before being
handed over” and other evidences (Helli, 1409 AH, p. 278, Najafi, 1404 AH, p. 83).
Some authors arguing that under the Convention on Contracts for the Sale of
Goods, if the contract of sale involves carriage of the goods and the seller is not
bound to hand them over at a named 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, and therefore only in the case of agreeing
otherwise, the risk of the loss of goods passes to the buyer before handing them
over, conclude that the Convention follows the latter approach and is identical to
the laws of Iran (Soltani Nezhad, 1378, p. 79). Being cri cal to this argument, it
may be said that handing the goods over to the carrier is considered as handing
them over to the buyer (Oloumi Yazdi, 1380, p. 73); because the seller has not
almost proprietary possessions in the goods any longer after handing them over,
but the buyer can do anything through the carriage documents, including the sale
of goods in transit.6
1‐3‐ Legal nature of the risk in commutative contracts
As previously mentioned, in lots of legal systems including Iranian one, the goods and
price don’t belong to the respective parties upon the conclusion of sale contract and the
ownership transfers to the other party because the sale contract is of possessory
character i. e. transfer the ownership, even if the goods and/or price aren’t delivered
immediately. The transfer of ownership necessitates any physically or legally free
possession in goods by the buyer, benefiting from the advantages and bearing the risks.
On this basis, in case of loss of goods arising out of a natural event and without the
6
. We are extremely of the opinion that this theory unanimously acknowledged by Imami experts (Faqih) and
Ar cle 387 of the Civil Code rela ng to the sale contract, and accepted with respect to other commuta ve
contracts including ren ng (Ar cles 483 and 496), Joaleh (Ar cle 567), Mozare‐eh (Ar cle 527) and debt (Ar cle
649) without referring to the name of the risk, is preferable to three other theories mentioned in accordance with
the legal logic, the parties’ common consent and the wise men reasoning affirmed by the Hadiths of Islamic
history.
6
seller’s fault, before being handed over to the buyer, the damage is at risk of the buyer
and he is bound to pay the price. Nevertheless, the seller is liable for the loss in Imami
jurisprudence‐ consequently Iranian Civil code, and other legal systems, and he is bound
to reimburse the price if he has taken it before. This is apparently not in conformity with
transferring the ownership by the sale contract, because the ownership requires the
passing of risk and non‐liability of the seller. So how we can make transferring the
ownership by the sale contract compatible with the risk of seller? It should be noted
that this contradiction is only seen in possessory contracts transferring the ownership.
In case of accepting the risk in other commutative contracts, this contrast won’t exist. In
the following, the legal opinions on the legal nature of risk are examined.
a) Theory of tort liability: The risk passes to the buyer under this theory, but before
the goods being handed over to the buyer, the seller has the tort liability
resulting from possession in another person’s property because of not having the
legal or contractual permission or being representative of the buyer7. The most
Islamic experts (faqih) disagree with this approach and that is why it is called “the
risk” rather than “tort liability” as from Shaykh Tusi in Imami jurisprudence. This
approach is not acceptable because the “tort liability” emerges when the seller is
at fault or breach the limits of permission or acting reasonably, but in the
situation we are talking about, he is not at fault or not acting unreasonably, and
the parties have agreed on the delay in delivery or even he is holding the goods
as the trustee at the request of the buyer.
b) Theory of legal order or religious compliance: Although some others believe that
the risk of the seller is not compatible with the transfer of ownership, they have
accepted it as the compliance with the order of Islamic legislator invoking a
famous hadith attributed to the holy Prophet. The supporters of the theory, are
of this opinion that the risk not transferred before delivery is only applicable in
the sale contracts, because when treating on the contrary to a general rule, we
should content with the lowest possible degree (Hosseini Maraghi, 1418 AH. p
454, Adl, p. 467). This is also not plausible legally and religiously because of two
following reasoning: Firstly, religious legislator talks in the language of custom
and there is no reason in the contracts to assert a rule relating to religious
7
. Liability in the wake of possession
7
compliance, without comprehensible and regular foundations. Secondly, That
Hadith and some others indicate a rationale reflecting the custom and the
parties’ common consent, accordingly having an obvious criterion and yardstick,
so there is no need to compliance with something incompatible with the rule
regulating the ownership.
c) Theory of termination of the contract in the moment before the loss: Under
analysis provided by some famous Imami jurists, the sale contract is
automatically terminated in the moment before the loss, so the ownership
transfers to the seller again and the goods are lost in that situation. The lagal
relationship between the parties disappears upon the loss o f goods and
termination of the contract, so the seller cannot hand over the goods, and,
similarly, the buyer is not bound to pay the price and if he has previuosly paid it,
has the right to claim the reimbursement. Under this approach, the seller’s risk is
based on the general principles regulating the contracts and the transfer of
ownership in the sale contract, and there is no exception (Mohaghegh Damad,
1373, p. 195). The problem in the theory is that under which a contract may be
terminated automatically and without any legal logic, undermining the principle
of strength of agreements. The sale contract is a binding one, so it may not be
cancelled unless by the parties’ mutual rescission, applying the right to terminate
the contract by one of the parties or the loss of the subject matter. How may the
contact be terminated before the loss of goods without any legal or contractual
cause? Cancelation of the contract before the loss of goods contrasts with the
principles regulating the agreements and the legal logic, then is implausible. Even
the supporters of this theory are not convinced by it,
d) Theory of interrelationship between the subject matter and the price: Some
authors are of the opinion that the seller’s risk is a rational idea resulting from
the parties’ common consent and in conformity with the general rules regulation
agreements and the transfer of ownership by the sale contract. They believe that
interrelationship between the subject matter of the contract and the price arising
out of the commutative intent makes them inseparable. Each one exists legally
only when the other exists, and without it cannot keep on. Therefore in the case
of loss of one of them, the other disappears automatically. The party, who is
deprived from one of them, is relieved to deliver the other, then the loss is at risk
8
of the seller. This rule is not just applicable to the sale contract, instead, may be
applied to all commutative contracts (whether transferring the ownership or
imposing an obligation), because the loss of one of them removes automatically
the commitment to deliver the other. Anyone who does not fulfill his obligation
for any reason, is nor entitled to take the price (Katouzian, 1376, V. 4, p. 109,
Ghasem Zadeh, 1387, p. 218). Although the sale contract transfers the ownership
of the goods and the price, since the parties’ ultimate purpose is proprietary
possession in them, by loss of one of them, the other one loses its basis. To justify
this theory, it may be said that the conclusion of the contract requires the ability
to deliver the goods or price, similarlt, its continuity requires the continuity of the
ability to do so. The contract is cancelled after the loss of good because of the
want of ability to hand them over. This theory is apparently in conformity with
transferring the ownership in the sale contract, party autonomy, binding
character of contracts, the wise men reasoning, and the Hadiths invoked by the
Imami jurists.
1‐4‐ The conditions of not passing the seller’s risk before delivering the goods in
spite of transferring the ownership
Despite acknowledgment of the risk in all commutative contracts by the jurists, it
conform to the contracts in which the issue of transferring the ownership comes up in
addition to the delivering the goods8 under special circumstances. Under following
circumstances, the seller’s risk does not pass before delivering the goods, in spite of
transferring the ownership in the laws of Iran:
a) The subject matter of the contract should be specific goods: Article 387 of the
Civil Code doesn’t expressly mention it, but the wording of Article indicating “if
the goods lose before being handed over” implies that it refers to the specific
goods. If the subject matter of the sale contact is general goods, the seller has
the obligation to hand over an instance of that kind, as long as he is able to
choose and deliver one and is not allowed to breach this commitment. It should
8
. The sale contract is a contract transferring the ownership. Nevertheless, there is no consensus among the jurists
on whether the “transfer of ownership” precedes the “delivering the goods” or vice versa. Briefly speaking, under
the International Convention on sales of Goods the transfer of ownership is conditioned to the delivery of the
goods, but the transfer of ownership takes place at the time of conclusion of contract and prior to the delivery.
9
be noted that in case of loss of all instances of general goods and not being able
to find even one of them, the Ar cle 387 will be applied with respect to the
termination of the contract (Najafi, 1404 AH, V. 23. P. 84). In this case, the
cancelation of the contract is not retroac ve (Katouzian, 1387, V. 1, p. 191)
because the contract has been concluded accurately and the subject matter has
been available before the loss so there is no reason to cancel it. This Article will
also be applicable when the subject matter is an instance of general goods.
b) The loss should take place before delivering the goods: This condition is expressly
men oned in both the Hadith invoked and Ar cle 378. Definitely, the risk passes
to the buyer after delivery of goods unless he is the only party with the right to
terminate the contract or the parties have agreed otherwise.
c) An external event should cause the loss: The subject matter of the sale contract
may be lost arising out of one of following causes: “natural disasters including
flooding, earthquake, hurricane, draught or unpredictable accidents such as war
and famine”, “the seller’s fault”, “the buyer’s action” and “a third party’s action
or the loss caused by him”. This article is not applicable if the loss is attributable
to one of the parties or a third party, because the loss caused by the buyer is
considered as his possession, acquisition and the factor transferring the risk, so
doesn’t discharge him from his obligation to pay the price9. This is applicable to
the circumstances under which the seller is ready to hand the goods over to the
buyer or his representative, but they avoid to do so. In this case, if the seller has
delivered the goods to the court, the risk will pass. If the loss is caused by the
seller after conclusion of contract, he has civil liability to the buyer because he
has lost another one’s property by his possession (Najafi, 1404 AH, V. 23, p. 90). If
the loss is caused by the third party before the goods being handed over, he is
liable as a result of causing the loss of the buyer’s property10 (Shahidi, 1384, p.
43).
9
. Ar cle 389 of the Civil Code
10
. Ar cle 387 of the Civil Code emphasizes that the loss shouldn’t cause by the seller’s fault. So one of the
conditions required for applying this rule is the loss caused by external event. On this basis, the Islamic jurists
(Faqih) differentiate between the loss and causing the loss and are of the opinion that the loss caused by the seller,
buyer and third party is subject to different rules. The loss caused by the buyer is considered as the acquisition of
the goods by him, then is the loss after acquisition and the buyer is liable for it, not the seller. On the loss caused
10
1‐5‐ Consequences of the passing of risk
In the laws of Iran, the contract is canceled because of impossibility of fulfilling the
obligation in the contract imposing an obligation and the loss of goods before being
delivered in the contracts transferring the ownership; in this case, the parties are in the
situation like before the conclusion of contract. In the international system under Article
66 of the Conven on on the Contracts for Interna onal Sale “Loss of or damage to the
goods after the risk has passed to the buyer does not discharge him from his obligation
to pay the price, unless the loss or damage is due to an act or omission of the seller”.
The following Articles address the moment of passing the risk (Ar cle 67 to 69) and
relationship between the passing of risk and committing a fundamental breach of
contract (Ar cle 70) (Darab Pour, 1374. V. 3, p. 14). The risk in this Conven on means
any loss of or damage to the goods caused by any event in which none of the parties
may be liable for. This may be caused by theft of goods or putrefaction, reduction of
quality, damage due to improper storage or packing, etc. In this case, the buyer has to
accept the goods and pay the price without benefiting from exercising the rights or
claiming damages as provided in Ar cle 45, because the loss has been accidental.
Additionally, he cannot claim non‐performance of commitment by the seller as an
excuse to shirk his obligations. This rule may be seen strict to the buyer, but it should be
noted that: Firstly, the international trade always involves the potential for
unpredictable events, in particular the international sale whose nature is hazardous and
it is more reasonable for the buyer to be the party bearing the liability for loss. Secondly,
the drafters of the Convention have made it just and fair by providing various rules in
rela on to the me of passing the risk. Therefore, Ar cle 66 of the Conven on expressly
indicates that the buyer is bound to pay the price after passing of risk. The exact
moment of the passing of risk varies from case to case regulated by Ar cles 66 to 69.
The last part of Ar cle 66 sta ng that the seller is liable for the damage a ributable to
his act or omission, is based on the “tort liability” not the passing of risk. An important
issue drawn the experts attention is the exact meaning of “act or omission of the seller”.
There are two different views in this case. The first one considers it as the breach of
obligations under the sale contract or the Convention, and in the second one, the act or
omission doesn’t necessarily require being the breach of contract, instead, it contains
by the third party, there is no consensus with respect to where it is regarded as a force majeure event and results
in the termination of contract or he is liable for delivering the identical goods or the price to the buyer.
11
any measure or event reasonably attributable to the seller resulting in the loss of or
damage to the goods. Under the second approach, Ar cle 66 should be interpreted in
the way embracing the seller’s actions leading to the tort liability, not only the breach of
contract by him (Darab Pour, 1374, V. 3, p. 16). The arbitrators of the China
International Economic and Trade Arbitration Commission (CIETAC) hold that “In 1992
there was an agreement between a Chinese seller and a Californian buyer for the sale of
10,000 kg of jasmine aldehyde (jasminal), CIF New York. The buyer warned the seller of
the sensitivity of the cargo to high temperatures and he asked him to make sure that it
would be stored in a cool place. Furthermore, he asked him to transport the jasminal on
a direct line. The seller confirmed that the temperature at the port was appropriate, but
when the cargo reached New York, after passing by the port of Hong Kong, a large part
of it had melted and leaked because of excessive heat during the voyage. The cargo was
shipped to the final user, who rejected it. It was then that the buyer informed the seller
of the damage and he had the goods examined on that day. After a settlement
agreement, the seller was obliged to pay US $ 60,000 as damages, of which US $20,000
would be paid in cash and the rest would be compensated in further transactions
between them. The seller did not pay the cash and the further transactions could not be
concluded. The buyer claimed payment of US $60,000 plus interest and damages, upon
an Arbitration Commission. The Arbitrators decided that the seller was responsible for
the damage according to ar cle 66 CISG. Even though, according to the CIF clause, the
risk passes when the goods pass the ship's rail, in the present case there had been a
separate special contractual agreement regarding the temperature during transport.
The seller had not complied with his obligations under the special contractual
agreement, since he had not given sufficient and correct directions to the carrier and
instead of arranging for a direct route, he had, on the contrary, sent the cargo via Hong
Kong, which resulted in its deteriora on. Therefore, as provided in ar cle 66 CISG, the
damage was caused by "an act or omission of the seller" and as a result the risk had not
passed to the buyer”. (Valio , Zoi, 2003, p. 21) Although the decision has been
accurately made, the argument of the Commission has not, because it was concluded
based on the risk not passed to the buyer. We are of the opinion that the seller is liable
as a result of tort liability.
2‐ Incoterms rules
2‐1‐ A brief introduction
12
The Incoterms rules means “International Commercial Terms” widely used in the
international commercial transactions, and recently in domestic trade. These rules
which are intended primarily to differentiate between the parties’ costs and risks, also
address the issues associated with the carriage of goods to the buyer including
clearance of the goods, import and export, and determining the party who is liable for
the costs and bears the risks during the carriage. These rules have been published by the
International Chamber of Commerce (ICC). They are intended to remove uncertainties
arising from different interpretation of the rules in different countries with respect to
most commonly used terms in international trade (Khazaea, 1386, p. 74). The parties
frequently are unaware of the commercial methods of the other party which leads to
misunderstanding, legal disputes and loss of time and money. In 1936, the first set of
the Incoterms rules was published and additional amendments and expansions followed
in 1953, 1967, 1976,1980,1990, 2000, and finally 2010 in order for being in harmony
with common methods of international trade. The Incoterms rules are mostly regarded
as the rules governing the carriage of goods sold, not the sale contract. The application
of these rules is confined to the rights and tasks of the parties of the sale contract
involving the carriage of “tangible” goods, and doesn’t contain “intangible” oness
including software products. Although the capacity of information networks with other
contracts relating to the international sale of goods (including the carriage conditions,
insurance, providing the money, etc) is of great importance for the exporters and
importers, the Incoterms rules merely address the sale contract. Nevertheless, the
parties’ agreement on choosing one of these terms necessarily affects other agreements
between them. When the seller agrees with a contract associated with CFR, he can fulfill
his obligation only through carriage by sea. Sometimes, it is mistakenly thought that the
Incoterms rules involve all tasks of the parties in the sale contract, but it needs
mentioning that they only address some of obligations including the seller’s task on
“placing the goods at the buyer’s disposal”, “hand them over to be carrier”, "deliver
them at the destination” and “division of the risks between the parties”. Although the
Incoterms rules are very significant for performance of the sale contract, they don’t
refer to the lots of difficulties arising in a contract such as transfer of ownership, the
rights arising out of ownership, breach of the contract and consequences of exemption
from liability in special circumstances. These issues must be settled based on terms and
conditions of the sale contract and the governing laws. These terms has been
repetitively revised because of being compatible with the modern commercial methods.
13
One of the amendments relating to this study is replacing delivery across the ship’s rail
at the named port in the carriage by sea by delivery at the named place based on which
the goods are seemed to be delivered before loading in the ship’s rail or any other place
for carriage by sea or multimodal transport.
2‐2‐ The structure of Incoterms based on the place of delivering the goods sold
In 1990, the Incoterms rules came into four basic groups for better comprehension of
them (Tarom Sari, 1387). This division which was apparently based on the place of
delivery and influences the passing of risk of loss, was revised in subsequent
amendments. The groups are as follows:
Group E: Where the seller makes the goods available to the buyer at the seller's own
premises: This group represents the minimum obligation for the seller and he has no
task but delivering the goods at the named place which is usually his own premises.
Anyway, in practice, the seller helps the buyer loading the goods on the means of
transport. If the buyer wants the seller to do more, they should expressly agree on it in
the sale contract.
Group F: Where the seller is called on to deliver the goods to a carrier named by the
buyer: In this group, the place agreed on it, faces some difficulties because of different
places possible to be named. It may be need to load the goods on the vehicle or means
of transport sent by the buyer at the seller’s premises or unload them the vehicle sent
by the seller. This problem has been no ced and resolved in the Incoterms 2000 which
provides that if the seller’s premises is determined as the place of delivery, the goods
are regarded handed over when they are loaded on the vehicle and if delivery occurs at
any other place, the goods are regarded delivered when they are at the buyer’s disposal
without the need to be unloaded from the vehicle sent by the seller (Dastbaz, 1387, p.
42). It should be noted that there are lots of discussions on the place of delivery in FOB,
CFR and CIF. For instance, although most of the time the term “delivering the goods
when they pass the ship’s rail” seems inappropriate, the traders use it when the goods,
facilities and means necessary for loading are taken into consideration. Unfortunately,
the term FOB sometimes is used to determine only the place of delivery, for instance
FOB factory, FOB the seller’s premises, or other inland places and the exact meaning of
Free On Board is forgotten. This kind of usage may result in confusion and should be
14
stopped. It seems that the change of place of delivery causes confusion particularly in
the sale of goods carried by sea and under the contract of hiring a ship.
Group C: Where the seller has entered into the contract for carriage, but without
assuming the risk of loss of or damage to the goods or additional costs due to events
occurring after shipment and dispatch: In this group, the seller pays the costs of the
carriage contacts under reasonable conditions. Therefore, the place whose carriage
costs are paid by the seller, should be named after the C. Since the place for the division
of costs is located in the county of destination, it is usually mistakenly thought that the
group C consists of the “arrival contracts” under which the seller assumes all risks and
costs until the goods brought to the named place. It should be emphasized that the
group C is similar to the group F, i.e. the seller fulfills his obligations in the country of
origin (of carriage or dispatch). The nature of the contracts on carriage and dispatch
necessitates that the seller pays the freight for dispatching the goods with reasonable
methods to the agreed place, but the buyer assumes the risk of loss of or damage to the
goods or additional costs due to events occurring after shipment and dispatch. The
distinguishing feature of the group C is that it has two critical points, one for “delivering
the goods” and the other for “passing of risk”. The nature of the group C is that upon
the conclusion of the carriage contract, delivering the goods to the carrier and providing
insurance (in CIf and CIP), it is assumed that all seller’s contractual obligations have been
fulfilled and he will be relieved from all subsequent costs or liabilities. Thereby, although
he is not liable for the loss of goods, if delivering the goods to the agreed place requires
concluding various carriage contracts involving transferring the goods from one means
of transfer to another, he is bound to pay all the costs including the cost of transferring
the goods from one vehicle to another. Sometimes, the sale occurs when the goods are
in transit by sea for which the term “afloat” is used. Since in this case, the risk of loss of
or damage to the goods passes from seller to the buyer, some problems possibly
emerge. The first probability is that the usual meaning of CIF and CFR with respect of
division of risks and liabilities between the seller and buyer is taken into account. In this
case, the risk passes at the time of carriage which means the buyer shall assume the risk
of events occurring at the time when the contract had come into force. The other
probability is that the passing of risk and liability and the conclusion of sale contract
coincide. Therefore, Article 68 of the United Nations Convention on Contracts for the
International Sale of Goods signed in 1980 provides that “if the circumstances so
indicate, the risk is assumed by the buyer from the time the goods were handed over to
15
the carrier who issued the documents embodying the contract of carriage.”
Nevertheless, there is an exception when “at the time of the conclusion of the contract
of sale the seller knew or ought to have known that the goods had been lost or
damaged and did not disclose this to the buyer”.
Group D: Where the seller has to bear all costs and risk needed to bring the goods to the
country of destination: In this group, the seller has to bring the goods to the named
point and place at the frontier or in the country of import and bear all costs and risks
needed. For this reason the group D includes “arrival contracts”. Under group D, the
seller is not bound to clear the goods for import in the country of destination. The
previous version of Incoterms (2000) provided that since the goods should be unloaded
on the quay (wharf) at the named point to be imported to the country of destination by
the seller, he had to clear them for import, but it is nowadays suggested that the
national of the country of destination has to clear the goods and pay all duties, taxes
and other charges upon import.
The Incoterms rule 2010 enforceable from January of 2011, subdivides the rules into
two groups: the first group of seven rules are applies for any mode of transport
containing DDP, DAP, DAT, CIP, CPT, FCA and EXW. The second one of four rules is
applicable for sea and inland waterway transport including CIF, CFR, FOB and FAS and
the reason is the significance of carriage by sea in world trade in these days. Another
amendment is removing four rules of the prior version (DDU, DES, DEQ and DAF)
because they resulted in disputes between the seller and buyer. Additionally, two more
rules have been introduced in the Incoterms 2010 which are DAP (Delivered at Place)
and DAT (Delivered at Terminal) as the substitute for the removed ones.
3‐ The passing of risk (risk and costs) based on the Incoterms rules
The risk of loss of or damage to the goods passes from the seller to the buyer upon
fulfilling the obligation to deliver the goods by the seller. Since it should not be possible
for the buyer to postpone bearing the risks and costs, all incoterm rules stipulate that in
the case of the buyer’s failing either to take delivery of the goods when they have been
placed at his disposal, or to give appropriate notice for the goods being delivered, the
risks and costs may pass before the goods being delivered, provided that the goods have
been duly appropriated to the contract (appropriation). This is important in particular in
the group E, because in other groups, when the goods are brought to the loading place
16
or place of dispatch or delivery, the buyer’s ownership to the goods becomes obvious.
Nevertheless, the seller may has dispatched the goods without identification and
determination of the goods of any of his buyer. In this case, the risks and costs don’t
pass until setting aside the goods11. In the following part, the passing of risk is examined
in every rule of the Icoterms:
a) EX Works (… named place)/ EXW: The seller delivers when he places the goods at
the disposal of the buyer at the seller’s premises or another named place (i.e.
works, factory, warehouse, etc.) not cleared for export and not loaded on any
collecting vehicle. The seller must place the goods at the disposal of the buyer at
the named place of delivery, not loaded on any collecting vehicle, on the date or
within the period agreed, if no such time is agreed, at the usual time for delivery
of such goods. If no specific point has been agreed within the named place, and if
there are several points available, the seller may select the point at the place of
delivery which best suits his purpose.
b) Free Carrier (… named place)/ FCA: the seller delivers the goods, cleared for
export, to the carrier nominated by the buyer at the named place. It should be
noted that the chosen place of delivery has an impact on the obligations of the
loading and unloading the goods at the place. If delivery occurs at the seller’s
premises, the seller is responsible for loading. If delivery occurs at any other
place, the seller is not responsible for unloading. This term may be used
irrespective of the mode of transport, including multimodal transport. The buyer
may nominate a person other than the carrier to take delivery the goods and is
bound to conclude the carriage contract at his own expense from the named
place. Delivery is completed: (1) If the named place is the seller’s premises, when
the goods have been loaded on the means of transport provided by the carrier
nominated by the buyer or another person ac ng on his behalf. (2) If the named
place is anywhere other than the seller’s premises, when the goods are placed at
the disposal of the carrier or another person nominated by the buyer on the
seller’s means of transport not unloaded. If no specific point has been agreed
within the named place, and there are several points available, the seller may
select the point at the place of delivery which best suits his purpose. Failing
11
. Compare it with Ar cle 69/3 of the UN Conven on on the Interna onal sale of the goods.
17
precise instruction from the buyer, the seller may deliver the goods for carriage
in such a manner as the transport mode and/or the quality and/or nature of the
goods may require. The buyer must bear all risks of loss of or damage to the
goods: (1) from the me they have been delivered in accordance with
aforemen oned condi ons, (2) from the agreed date or the expiry date of any
agreed period for delivery which arise either because he fails to nominate the
carrier or another person or because the carrier or the party nominated by the
buyer fails to take the goods into his charge at the agreed time, or because the
buyer fails to give the seller sufficient notice of the name of the party designated
by him and, where necessary, specify the mode of transport, as well as the date
or period for delivering the goods to him, as the case may be, the point within
the place where the goods should be delivered to that party, provided that the
goods have been duly appropriated to the contract.12
c) Free Alongside Ship (… named port of shipment)/ FAS: The seller delivers when
the goods are placed alongside the vessel at the named port of shipment. He
should place the goods at the named port of shipment on the date or within the
agreed period and in the manner customary at the port. The buyer must bear all
risks of loss of or damage to the goods: (1) from the me they have been
delivered, (2) form the agreed date or the expiry date of the agreed period for
delivery which arise because he fails to give the seller sufficient notice of the
vessel name, loading point and required delivery time or because the vessel
nominated by him fails to arrive on time, or is unable to take the goods, or closes
for cargo earlier than the time notified, provided, however, that the goods have
been duly appropriated to the contract.
d) Free on Board (… named port of shipment)/ FOB: The seller delivers when the
goods pass the ship’s rail at the named port of shipment. If the parties do not
intend to deliver the goods across the ship’s rail, the FCA term should be used.
The seller must deliver the goods on the date or within the agreed period at the
named port of shipment and in the manner customary at the port on board the
vessel nominated by the buyer. So the buyer must bear all risks of loss of or
12
. The term “duly appropriated to the contract” in FCA and other rules legally means that the goods are clearly set
aside or otherwise indentified as the contract goods.
18
damage to the goods: (1) from the me they have passed the ship’s rail at the
named port of shipment, (2) from the agreed date or the expiry date of the
agreed period for delivery which arise because the buyer fails to give the seller
sufficient notice of the vessel name, loading point and required delivery time, or
because the vessel nominated by him fails to arrive on time, or is unable to take
the goods, or closes for cargo earlier than the time notified , provided, however,
that the goods have been duly appropriated to the contract.
e) Cost and Freight (… named port of destination)/ CFR: The seller delivers when the
goods pass the ship’s rail in the port of shipment. The seller must pay the costs
and freight necessary to bring the goods to the named port of destination, but
the risk of loss of or damage to the goods, as well as any additional costs due to
events occurring after the time of delivery, are transferred from the seller to the
buyer. If the parties do not intend to deliver the goods across the ship’s rail, the
CPT term should be used. Therefore, the buyer must bear all risks of loss of or
damage to the goods from the time they have passed the ship’s rail at the port of
destination. The buyer must bear them if he fails to give the seller sufficient
notice whenever he is entitled to determine the time for shipping of the goods
and/or the port of destination provided, however, that the goods have been duly
appropriated to the contract. The buyer must insure the goods for loss of or
damages to the goods during the carriage. Therefore, if the seller fails to provide
the buyer with the necessary information resulting to the goods not being
insured, he exceptionally bears the risk of loss of or damage to the goods during
the carriage (Schmi off, 1378, V. 1, p. 84).
f) Cost Insurance and Freight (… named port of destination)/ CIF: the seller delivers
when the goods pass the ship’s rail in the port of shipment and must pay the
costs and freight necessary to bring the goods to the named port of destination.
If the parties don not intend to deliver the goods across the ship’s rail, the CIP
term should be used. The buyer must bear all risks of loss of or damage to the
goods from the time they have passed the ship’s rail at the port of shipment. The
buyer must, should he fail to give the seller sufficient notice whenever he is
entitled to determine the time for shipping the goods and/or the port of
destination, bear all risks of loss of or damage to the goods from the agreed date
19
or the expiry date of the period fixed for shipment, provided that the goods have
been duly appropriated to the contract.
g) Carriage Paid to (… named place of destination)/ CPT: The seller deliver the goods
to the carrier nominated by him and must pay the cost of carriage necessary to
bring the goods to the named destination. This means that the buyer bears all
risks and any other costs occurring after the goods have been so delivered.
“Carrier” means any person who, in a contract of carriage, undertakes to perform
or to procure the performance of transport by rail, road, air, sea, inland
waterway or by a combination of such modes. If subsequent carriers are used for
the carriage to the agreed destination, the risk passes to the buyer when the
goods have been delivered to the first carrier. The seller must deliver the goods
to the carrier or, if there are subsequent carriers, to the first carrier, for transport
to the agreed point at the named place on the date or within the agreed period.
Accordingly the buyer must bear all risks of loss of or damage to the goods when
they have been delivered. The buyer must, should he fail to give the seller
sufficient notice whenever he is entitled to determine the time for shipping the
goods and/or the port of destination, bear all risks of loss of or damage to the
goods from the agreed date or the expiry date of the period fixed for shipment,
provided that the goods have been duly appropriated to the contract.
h) Delivered at Terminal/ DAT: Under this rule introduced in the Incoterms 2010,
the seller delivers when the goods, once unloaded from the arriving means of
transport, cleared for export, are placed at the disposal of the buyer at a named
terminal at the named port or place of destination. "Terminal" can be any place,
whether covered or not, including quay, warehouse, container yard or road, rail
or air cargo terminal. The seller must bear all risks and costs until they are
brought to the terminal and unloaded at the agreed point at the named place.
The parties are well advised to specify clearly as possible the point within the
agreed place of destination, because there may be more than one terminal for
entering in a country. Determining the place of delivery is important because the
seller bears all the risks and costs up to that point. Delivery is not completed
before unloading the goods from the arriving means at the terminal and the
seller must pay the costs and bear the risks in that respect. In other word,
delivery is completed when the goods are unloaded. If the agreed terminal is
20
domestic to the buyer in the country of destination, since this term requires him
to clear the goods for import and pay an import duty, he must carry out import
customs formalities in due time or within the reasonable time, and if he fails to
do so or do in the way leading to loss of or damage to the goods, he must bear
the risks. In this case, the rule provides the “premature passing of risk before
delivering the goods”.
i) Delivered at Place (… named place of destination)/ DAP: the seller must obtain
export licenses, clear the goods for export in the country of origin, conclude a
contract of carriage at his own expense and bear the risks and unpredictable
costs during the carriage of goods to the named place of destination, and
eventually deliver the goods to the named place. The seller delivers when the
goods are placed at the disposal of the buyer on the arriving means of transport
ready for unloading at the named place of destination, without bearing the risks
arising out of unloading. Under this rule, like other rules of group D, the seller
must make sure that the goods are unimpaired at the delivery point, because he
bears the risks up to that point. In case of loss of or damage to the goods, the
seller may not claim the price. This applies to improper packing and loss or
damage due to inherent vice of goods. In this rule, if the seller unloads the goods
and pays the costs to the carrier in accordance with the carriage contract, he is
not entitled to claim the costs from the buyer, unless otherwise agreed in the
contract. If a special point is not agreed on within the place of destination, the
seller chooses the point of delivery within the agreed place of destination
provided that he gives necessary information to the buyer to be prepared for
taking delivery of goods. If the buyer has the right to choose the point of delivery
within the agreed place of destination, he must gives necessary information to
the seller on the point of delivery, at the agreed time or within the agreed period
in which the seller is going to conclude a contract with the carrier or procure the
insurance. Thereby, the passing of risks and costs from the seller to the buyer and
unloading the goods from arriving means of transport coincide, unless the buyer
fails to fulfill his obligations which transfers the risks and costs to him
prematurely.
j) Delivered Duty Paid (… named place of destination)/ DDP: The DDP represents
the maximum obligation for the seller in comparison with the other rules and the
21
seller usually bears all costs. He must provide the goods, pack and carry them
within the country of origin and clear them for export after obtaining necessary
licenses. Then, he must conclude a contract of carriage with the carrier and pay
the freight. When the goods are brought to the country of destination, he must
unload them in the customs, obtain necessary licenses for import, pay an import
duty, carry out import customs formalities, carry the goods to the buyer’s
warehouse within the country of destination and hand them over to the buyer.
Thus the risk passes to the buyer when the goods are cleared for import and
being carried on the means of transport to the buyer’s warehouse. In other
words, the seller does not bear the risks and costs arising out of unloading the
goods in the buyer’s warehouse. The parties are well advised to specify clearly as
possible the point within the agreed place of destination, because the seller
bears the risks and costs to that point within the agreed place of destination and
this specification prevents from subsequent disputes between the parties and
enable the seller to calculate the costs and carry the goods to the agreed point
within the agreed place of destination. Under this rule seller must give the buyer
sufficient notice of the dispatch of the goods in order to allow him to take
delivery of the goods.
As previously discussed, among the rules represented by the Incoterms 2012, seven of
them are applicable in any mode of transport including EXW, FCA, CIP, DAP, DAT, and
DDP. This group can be subdivided into two categories based on the delivery to the
carrier or delivery to the buyer. The EXW, CIP, CPT and FCA fall within the first category
which means the parties agree on a place in the contract to be the place in which the
goods are delivered to the carrier. If no specific point has been agreed, the seller may
select the point at the place of delivery. The delivery of goods to the carrier is a new rule
used in some of the sale contracts involving the carriage of goods under customary
international rules as the point of passing the risk13 (Asghari Aghmashhadi & Mohajer,
1384, p. 114). The DAP, DAT and DDP fall within the category in which the goods are
delivered to the buyer. The goods are delivered at the named place of destination under
the DAP, in the named terminal in place of destination under the DAT and in the buyer’s
13
. Since the delivery is the yardstick of the passing of risk under the laws of Iran, delivery to the carrier doesn’t
apparently suffice for the passing of risk. Nevertheless, delivery to the carrier can be presumed as the delivery to
the buyer by accepting the presumption of delivery.
22
warehouse under the DDP. One of the reasons of removing four rules of the DAF, DEQ,
DES, and DDU from group D was that (in two of them, namely the DDU and DAF) the
goods have been delivered at the frontier and although “delivery at frontier” was the
point of passing the risk from the seller to the buyer under the prior version of
Incoterms (2000), it resulted in some problems for both the par es. Additionally, two
other rules (The DEQ and DES) falling in the category of “delivery at the port of
destination" under which the seller delivers when the goods are placed at the disposal
of the buyer not cleared for import on the quay (wharf) at the named port of
destination, created some disputes between the par es. The Incoterms 2012 contains
four rules applicable for sea and inland waterway transport including CIF, CFR, FOB and
FAS. The goods are delivered when they are placed alongside the vessel under the FAS
and when the pass the ship’s rail and are unloaded under the CIF, CFR, and FOB.
4‐ A comparison between the rule embodied in the Convention on Contracts for
International Sale and the Incoterms rules with respect to the passing of risk
The Vienna Convention and the Incoterms are both international instrument aimed at
unifying the law relating to the international sales. The Vienna Convention is applied to
the Member States, but the Incoterms rules are generally applicable to those States and
others as stipulated conditions in the contract. If the parties expressly agreed on the
incorporation of the Incoterms in their contract, then their rules will govern the contract
of sale and they will supersede the Convention's rules on the passing of risk, excluding
therefore, the application of Ar cles 66‐70 of the Convention. That is because the
Convention constitutes ius dispositivum, allowing the parties to derogate from or to
completely exclude the application of its provisions. If the parties did not expressly
agree on the incorporation of the Incoterms, then it remains unclear whether their rules
could still be applied through the articles of the Convention even if the parties did not
refer to them in the contract of sale. The Convention does not expressly refer either to
the trade terms or the Incoterms; it does not contain any articles that include specific
rules on them. Nevertheless, it has been supported that Incoterms can be applied, if
they are thought to cons tute "usages" under the meaning of ar cle 9(2) of the
Convention. Furthermore, according to Ar cle 8(3) the Incoterms may be regarded as
“usages” established between the parties, if they have used them in their previous
transactions, and then the rules will be applied to the sale contact, even if they were not
23
expressly referred to.14 The relationship between the rules of these two international
instruments is undeniable. It is important to compare the rules of the Convention with
those of the Incoterms for a better comprehension of the passing of risk in the
interna onal sale. Therefore, in this part, 5 Ar cles of the conven on are compared
with 13 rules of the Incoterms in order to find the differences and similarities:
24
Conven on's ar cle 67(1) first sentence the most compa ble provision.
Furthermore, under the CPT and CIP terms, which can be used in all modes of
transport including multi‐modal transport, risk is transferred by handing the
goods over to the carrier for transmission to the buyer or to the first carrier in
case of successive carriers (Valio , Zio, 2003, p. 28).
4‐2‐ Ar cle 67(1) second sentence provides that where the parties have agreed on
delivery of the goods to a certain place, risk passes when the seller hands the
goods over to the carrier at that place. It seems that this rule could be applied to
FAS contracts, where risk passes when the seller places the goods alongside the
ship. The buyer is the one who should load them on board the vessel and bear
the risks. If the goods suffer any damage while they are being loaded the seller is
relieved from any liability. Nevertheless, the Convention's rule differs from that
of the FAS term in that, whereas under the latter the risk passes when the goods
have just been placed alongside the vessel, without being necessary that the
buyer takes delivery, under the Convention's provision, the risk passes when the
goods are delivered to the carrier at the particular place, and not when they are
merely placed at his disposal. It seems, therefore, that the Convention presumes
that delivery is only valid if the goods are taken over by the other party, thus
making delivery a bilateral act, which is not always the case in international trade
(Devries, H., 1982, p. 519, cited in Valio , 2003, p. 29). Under the FAS, the buyer
has no legally obligation, unless he must take delivery of the goods. Nevertheless
he must nominate a vessel and give notice to the seller thereof to make him able
to delivers the goods alongside the vessel. In fact, the buyer usually takes
necessary measures to carry the goods in his best interest and won’t let the
vessel stop in the port of shipment. That is why under the FAS, the buyer must
conclude the contract of carriage from the named port at his own expense. If the
vessel does not arrive on time, another issue arises, because in this case, the
seller cannot place the goods alongside the vessel, so the risk passes
prematurely. This is the case, when the vessel is unable to take the goods or
closes for cargo earlier than the agreed time, under which the buyer remains
liable for the loss of or damage to the goods, provided that the goods have been
duly appropriated to the contract (Shirzad, 1380, p. 160). The same Convention's
rule seems to apply to FOB contracts as well. Under the latter the seller should
deliver the goods on board the vessel and risk passes when the goods cross the
25
ship's rail and from that moment the buyer must beat all risks of loss of or
damage to the goods. Nonetheless, the ship's rail is a rather controversial
criterion, which may be suscep ble to different interpreta ons. Ar cle 67(1)
second sentence would apply once more in that case, since delivery on board the
vessel, at the agreed port under the FOB term, equates to delivery at a
"particular place". If the buyer changes his mind on the nominated vessel or the
nomination becomes impossible in any way, he must substitute it as soon as
possible and bear all costs thereon. If the FOB is “Classic or Strict” or “Simple”
under which the buyer enters into the contract with the carrier, it is assumed
that two other obliga ons follow the buyer’s task to nominate the vessel: (1)
selec ng the port of shipment under the contractual terms, and (2) giving no ce
to the seller within a reasonable time. If it is “with Additional Services” in a
specific time, the buyer must nominate the vessel within the agreed time. In this
case, the buyer has the right to select the time of loading within the agreed time
for carriage of the goods and upon that moment the carriage is conditioned to
the notice by the buyer. If the vessel nominated by the buyer is ready to load the
goods, the seller must do so, but he has no obligation to prepare them to be
loaded (Schmi off, 1378, V. 1, p. 43).
4‐3‐ Ar cle 68 of the Convention deals with a particularly difficult issue, i.e. the
passing of risk in case of goods sold in transit. Usually this type of sale involves
bulk goods like oil or wheat, where the seller embarks on a journey most of the
times without knowing the recipients of the cargo and arranges for its sale while
it is being transported. Whereas ar cle 68 provides that the risk, in sales
involving goods in transit, passes from the time of conclusion of the contract of
sale, different versions of the Incoterms 2000 do not specifically provide any
provision dealing with this issue. It is, therefore, suggested that in cases of sale of
goods during transit, the CIF and CFR terms usually apply by adding the word
"afloat" a er them (Valio , 2003, p. 29). Since the risks of loss of or damage to
the goods passes from the seller to the buyer at the port of shipment, some
difficulties probably arise in interpreting the word “afloat”.16 One way to solve
the problem is to acknowledge the usual meaning of the CFR and CIF in terms of
16
. The amendments to the group C are specifically more unclear, because under these rules the seller must fulfill
his obligation to carry the goods. Adding more terms to them may change their nature (Shirzad, 1380, p. 56).
26
division of risks between the seller and buyer i.e. passing the risk while loading
the goods. Another way is that the passing of risk and the conclusion of the sale
contract take place at the same time. The first one seems more applicable,
because it is impossible to identify the situation of the goods in transit. That is
why Ar cle 68 of the Conven on provides that “if the circumstances so indicate,
the risk is assumed by the buyer from the time the goods were handed over to
the carrier who issued the documents embodying the contract of carriage.”
Nevertheless, there are some exceptions to this rule when the seller “knew or
ought to have known that the goods had been lost or damaged and did not
disclose this to the buyer” (Tarom Sari, 1387, p. 16). Accordingly, the
interpretation of the CFR and CIF with the word “in transit” added, depends on
the governing law of the contract. Therefore, the parties are advised to specify
the governing law and the way to settle the disputes arising out of this issue and
make clear any ambiguity thereof. An example for better comprehension is a
Brazilian seller loading the goods from the port of origin in Brazil to port of
Bandar Abbas for Iranian buyer. He sells the goods floating to a third party
(Indian buyer), after the carriage by sea has started. If Iranian buyer sells the
goods under the CIF, adding the terms including “the goods afloat”, “in transit”,
and “the goods loaded previously” and the goods are lost or damaged before the
conclusion of the sale contract, some difficulties will arise. If the contract is
interpreted under the Incoterms based on which the risk of loss of or damage to
the goods passed to Indian buyer before the conclusion of the sale contract with
him, he must bear the damage and then claim the damage totally or partially
from the insurance company or the carrier. If the parties agreed on specifying the
governing law in the CIF, the laws of Iran or another country may apply through
the Incoterms rules. If the laws of Iran govern the contract, the seller must bear
the risk of loss of or damage to the goods, based on a well‐known rule17. In this
case, the provisions added to the contract are the “terms contrary to the
standard” which has no impact on validity of the contract. Accordingly, if one of
the parties is unaware of the consequences of the aforementioned trade terms,
he is not able to take appropriate measure to avoid potential risks which
extremely increases the potential damages to that party unprepared to avoid
کل مبيع تلف قبل قبض فھو من مال بايعه.١٧
27
(Darab Pour, 1388, p. 36). As obviously depicted, the Incoterms rules can be
applied to Ar cle 68 of the Conven on by adding a “term contrary to the
standards” of Incoterms and apply the Incoterms rules with respect to the sale of
goods in transit. Nevertheless, to avoid different interpretations, the parties are
generally advised to agree on the exact me of passing of risk under ar cle 6 of
the Convention.
not taken delivery, he would have to bear the loss since he would have then
committed a breach of contract under Ar cle 69(1) (Valio , Z., 2033, p.30). With
respect to the passing of risk, Ar cle 69(2) provides that “if the buyer is bound to
take over the goods at a place other than a place of business of the seller, the risk
passes when delivery is due and the buyer is aware of the fact that the goods are
placed at his disposal at that place.” It can be said that all rules embodied in D
group can most successfully be compared with ar cle 69(2). For instance, under
the DAP, the risk passes when the goods are delivered to the buyer on the means
of transport to the place of destination and the seller must not bear the risk of
unloading and loss or damages arising out of that.
Conclusion
a) The UN Convention on the Contracts for International Sale of Goods signed in
1980 briefly addresses the impact of the contract of carriage on the process of
delivery and passing the risk and provides that if the sale involves the carriage of
goods and the seller is no bound to deliver them at a named place, the risk passes
to the buyer when the goods are handed over to the first carrier in accordance
with the contract. If the seller is bound to hand the goods over to the carrier at a
named place, the risk passes when the goods are delivered to the carrier at that
place. Therefore, the risk of loss of the goods before being delivered may passes
to the buyer, unless it has been agreed otherwise between the parties. Under the
Incoterms rules, since the carriage of goods sold accompanies various issues and
any failure during the carriage may result in the delay in delivery of goods and
passing of risk, it has been tried to prevent from the issues arising unreasonably.
For instance, it is provided that if the buyer fails to take delivery of the goods
under the contract or to give notice to the seller on the time and date of delivery,
necessary for the seller to deliver the goods, the buyer must bear the risks and
costs prematurely. For prematurely passing of risks and costs, it is necessary that
the goods have been specified or appropriated under the terms of contract
(appropriation).
b) The laws in Iran have not explicitly addressed the impact of the carriage contract
on delivery of the goods and passing of risk. Nevertheless, regarding the
information provided in this study, it seems that the criterion embodied in
29
Ar cles 387, 567, 649, 380, etc. of the Civil Code is applicable to the contracts
involving the carriage of goods. Under the rule of the Convention, in some special
circumstances including failure of the buyer to take delivery of the goods or to
give necessary notice to the seller resulting in the loss of or damage to the goods,
the seller must bear the risks in spite of delivery of the goods. Similarly, the same
situation is applicable under the rules of civil liability including the rules with
respect to destructing or causing damage to other people’s property.
References
.1اﺷﻤﻴﺘﻮف ،ﻛﻼﻳﻮ ام» ،(1378) ،ﺣﻘﻮق ﺗﺠﺎرت ﺑﻴﻦ اﻟﻤﻠﻞ« ،ﻣﺘﺮﺟﻢ :اﺧﻼﻗﻲ ،ﺑﻬﺮوز و ﻫﻤﻜﺎران ،ﭼﺎپ اول ،ﺗﻬﺮان،
ﺳﺎزﻣﺎن ﻣﻄﺎﻟﻌﻪ و ﺗﺪوﻳﻦ ﻛﺘﺐ ﻋﻠﻮم اﻧﺴﺎﻧﻲ داﻧﺸﮕﺎﻫﻬﺎ )ﺳﻤﺖ(.
.2اﺻﻐﺮي آﻗﻤﺸﻬﺪي ،ﻓﺨﺮاﻟﺪﻳﻦ؛ ﻣﻬﺎﺟﺮ ،ﻣﻴﻨﺎ» ،(1384) ،اﻧﺘﻘﺎل ﺿﻤﺎن ﻣﻌﺎوﺿﻲ در ﻗﺮاردادﻫﺎي ﺑﻴﻊ ﻣﺘﻀﻤﻦ ﺣﻤﻞ
ﻛﺎﻻ )ﻣﻄﺎﻟﻌﻪ ﺗﻄﺒﻴﻘﻲ در ﻛﻨﻮاﻧﺴﻴﻮن وﻳﻦ 1980و ﺣﻘﻮق اﻳﺮان(« ،ﻓﺼﻠﻨﺎﻣﻪ ﭘﮋوﻫﺸﻨﺎﻣﻪ ﺑﺎزرﮔﺎﻧﻲ ،ﺷﻤﺎره ،35ﺻﺺ
.123-101
.3ﺣﺴﻴﻨﻰ ﻣﺮاﻏﻰ ،ﻣﻴﺮ ﻋﺒﺪاﻟﻔﺘﺎح 1418) ،ه .ق» ،(.اﻟﻌﻨﺎوﻳﻦ« ،ج ،2ﭼﺎپ اول ،ﻣﺆﺳﺴﻪ ﻧﺸﺮ اﺳﻼﻣﻰ.
.4ﺣﻠﻰ)ﻣﺤﻘﻖ( ،اﺑﻮاﻟﻘﺎﺳﻢ ﻧﺠﻢ اﻟﺪﻳﻦ 1409) ،ه .ق» ،(.ﺷﺮاﻳﻊ اﻻﺳﻼم ﻓﻰ ﻣﺴﺎﺋﻞ اﻟﺤﻼل و اﻟﺤﺮام« 4 ،ﺟﻠﺪى،
ﭼﺎپ دوم ،ﺑﻴﺮوت.
.5ﺧﺰاﻋﻲ ،ﺣﺴﻴﻦ» ،(1386) ،ﺣﻘﻮق ﺗﺠﺎرت ﺑﻴﻦ اﻟﻤﻠﻞ« ،ﺟﻠﺪ ﭘﻨﺠﻢ ،ﻧﺸﺮ ﻗﺎﻧﻮن.
.6داراب ﭘﻮر ،ﻣﻬﺮاب» ،(1374) ،ﺗﻔﺴﻴﺮي ﺑﺮ ﺣﻘﻮق ﺑﻴﻊ ﺑﻴﻦ اﻟﻤﻠﻠﻲ)ﺗﺮﺟﻤﻪ(« ،دوره 3ﺟﻠﺪي ،ﻛﺘﺎﺑﺨﺎﻧﻪ ﮔﻨﺞ داﻧﺶ.
.7داراب ﭘﻮر ،ﻣﻬﺮاب» ،(1388) ،ﺳﻴﻒ و ﺷﺮوط ﺧﻼف ﻣﻘﺘﻀﺎي اﺳﺘﺎﻧﺪارد آن« ،داﻧﺸﻜﺪه ﺣﻘﻮق داﻧﺸﮕﺎه ﺷﻬﻴﺪ
ﺑﻬﺸﺘﻲ.
.8دزﻓﻮﻟﻰ ،ﻣﺮﺗﻀﻰ ﺑﻦ ﻣﺤﻤﺪ أﻣﻴﻦ اﻧﺼﺎرى 1410) ،ه.ق» ،(.ﻛﺘﺎب اﻟﻤﻜﺎﺳﺐ)اﻟﻤﺤﺸﻲ(« ،ﭼﺎپ ﺳﻮم ،ﺷﺮح ﻛﻼﻧﺘﺮ ،ﺳﻴﺪ
ﻣﺤﻤﺪ ،ﻣﺆﺳﺴﻪ ﻣﻄﺒﻮﻋﺎﺗﻰ دار اﻟﻜﺘﺎب ،ﺟﻠﺪ .6
.9دﺳﺘﺒﺎز ،ﻫﺎدي» ،(1387) ،ﺑﻴﻤﻪ ﺑﺎرﺑﺮي ﻛﺎﻻ« ،ﻛﺸﺘﻲ و ﻫﻮاﭘﻴﻤﺎ ،اﻧﺘﺸﺎرات داﻧﺸﻜﺪه ﻋﻠﻮم اﻗﺘﺼﺎدي.
.10ﺳﻠﻄﺎﻧﻲ ﻧﮋاد ،ﻫﺪاﻳﺖ اﻟﻪ) ،ﺗﺎﺑﺴﺘﺎن » ،(1378ﺿﻤﺎن ﻣﻌﺎوﺿﻲ« ،ﻧﺎﻣﻪ ﻣﻔﻴﺪ ،ﺷﻤﺎره ﻫﺠﺪﻫﻢ ،ﺻﺺ .91-76
.11ﺷﻴﺮزاد ،ﻋﺴﻜﺮ» ،(1380) ،راﻫﻨﻤﺎي اﻳﻨﻜﻮﺗﺮﻣﺰ)2000ﺗﺮﺟﻤﻪ(« ،اﻧﺘﺸﺎرات ﻛﻤﻴﺘﻪ اﻳﺮاﻧﻲ اﺗﺎق ﺑﺎزرﮔﺎﻧﻲ ﺑﻴﻦ اﻟﻤﻠﻠﻲ.
.12ﺷﻬﻴﺪي ،ﻣﻬﺪي» ،(1384) ،ﺣﻘﻮق ﻣﺪﻧﻲ ،6ﻏﻘﻮد ﻣﻌﻴﻦ ،«1ﭼﺎپ ﭼﻬﺎرم ،ﺗﻬﺮان ،اﻧﺘﺸﺎرات ﻣﺠﺪ.
.13ﻋﺪل ،ﻣﺼﻄﻔﻰ» ،ﺣﻘﻮق ﻣﺪﻧﻰ« ،ﺑﻪ ﻛﻮﺷﺶ ﺳﻴﺪ ﺣﺴﻦ اﻣﺎﻣﻰ ،ج .1
.14ﻋﻠﻮﻣﻲ ﻳﺰدي ،ﺣﻤﻴﺪرﺿﺎ» ،(1380) ،ﻣﻔﻬﻮم ﺗﺴﻠﻴﻢ و ارﺗﺒﺎط آن ﺑﺎاﻧﺘﻘﺎل ﻣﺎﻟﻜﻴﺖ و رﻳﺴﻚ )ﺿﻤﺎن ﻣﻌﺎوﺿﻲ
درﻋﻘﺪ ﺑﻴﻊ(« ،ﻧﺸﺮﻳﻪ ﭘﮋوﻫﺶ ﺣﻘﻮق و ﺳﻴﺎﺳﺖ ،ﺷﻤﺎره ،5ﺻﺺ .96-66
.15ﺻﻔﺎﻳﻲ ،ﺳﻴﺪ ﺣﺴﻴﻦ» ،(1387) ،ﺣﻘﻮق ﺑﻴﻊ ﺑﻴﻦ اﻟﻤﻠﻠﻲ ﺑﺎ ﻣﻄﺎﻟﻌﻪ ﺗﻄﺒﻴﻘﻲ« ،اﻧﺘﺸﺎرات داﻧﺸﮕﺎه ﺗﻬﺮان.
30
. ﻣﺆﺳﺴﻪ ي ﻣﻄﺎﻟﻌﺎت و ﭘﮋوﻫﺶ ﻫﺎي ﺑﺎزرﮔﺎﻧﻲ،«()ﺗﺮﺟﻤﻪ2000 »اﻳﻨﻜﻮﺗﺮﻣﺰ،(1387) ، ﻣﺴﻌﻮد، ﻃﺎرم ﺳﺮي.16
ﻧﺸﺮ، ﺗﻬﺮان، ﭼﺎپ ﻧﻬﻢ،« اﺻﻮل ﻗﺮاردادﻫﺎ و ﺗﻌﻬﺪات، »ﺣﻘﻮق ﻣﺪﻧﻲ،(ﭘﺎﻳﻴﺰ1387) ، ﺳﻴﺪ ﻣﺮﺗﻀﻲ، ﻗﺎﺳﻢ زاده.17
.دادﮔﺴﺘﺮ
ﺷﺮﻛﺖ اﻧﺘﺸﺎر ﺑﺎ ﻫﻤﻜﺎري ﺷﺮﻛﺖ، ﭼﺎپ دوم،« ﻗﻮاﻋﺪ ﻋﻤﻮﻣﻲ ﻗﺮاردادﻫﺎ، »ﺣﻘﻮق ﻣﺪﻧﻲ،(1376) ، ﻧﺎﺻﺮ، ﻛﺎﺗﻮزﻳﺎن.18
.ﺑﻬﻤﻦ ﺑﺮﻧﺎ
. ﻧﺸﺮ ﮔﻨﺞ داﻧﺶ، ﺟﻠﺪ اول،« ﻋﻘﻮد ﻣﻌﻴﻦ، »ﺣﻘﻮق ﻣﺪﻧﻲ،(1387) ، ﻧﺎﺻﺮ، ﻛﺎﺗﻮزﻳﺎن.19
،24 ﺷﻤﺎره، ﻧﺸﺮﻳﻪ دادرﺳﻲ،«( »اﻧﺘﻘﺎل ﺿﻤﺎن در ﺑﻴﻊ ﺑﻴﻦ اﻟﻤﻠﻠﻲ ﻛﺎﻻ)ﻣﻄﺎﻟﻌﻪ ي ﺗﻄﺒﻴﻘﻲ،(1379) ، ﻛﺮﻳﻢ، ﻛﺎﺷﻲ.20
.42-37 ﺻﺺ
. ﻣﺮﻛﺰ ﻧﺸﺮ ﻋﻠﻮم اﺳﻼﻣﻰ، ﭼﺎپ ﭼﻬﺎرم،« ﺑﺨﺶ ﻣﺪﻧﻰ، »ﻗﻮاﻋﺪ ﻓﻘﻪ،(1373) ، ﺳﻴﺪ ﻣﺼﻄﻔﻰ، ﻣﺤﻘﻖ داﻣﺎد.21
ﺗﺎرﻳﺦ دار اﺣﻴﺎء اﻟﺘﺮاث،23 ج،« »ﺟﻮاﻫﺮ اﻟﻜﻼم ﻓﻲ ﺷﺮح ﺷﺮاﺋﻊ اﻹﺳﻼم،(.ق. ه1404) ، ﻣﺤﻤﺪ ﺣﺴﻦ، ﻧﺠﻔﻰ.22
.اﻻﺳﻼﻣﻴﻪ
23. Bolee , S , 2003 , Theory of Risk in the1980 Vienna sale of Goods Convention , http://cisgw3 .Law.
pace.edu/.
24. Flambouras , D,1998 ,International sale of Goods , practical Issues Concerning the passing of risk under
the Vienna Convention(1980), synigoros in Greek , N26.
25. Ramberg , J , 2005 , To WHAT EXTENT DO INCOTERMS2000 VARY ARTICLES 67(2), 68 AND69 , journal
of law and commerce25.
26. Romein , A ,2003 , The passing of Risk: A comparison between the passing of risk under the CISG and
German law , http://cisgw3 .Law.Pace.edu/.
27. The United Nations Convention on Contracts for the International Sale of Goods (CISG;
the Vienna Convention
28. Valioti , Z , 2003 , passing of risk in International sales of Goods contracts. http://cisgw3.Law.pace.edu/.
31