Greece’s and UK’s Risk Escape System Comparison

Subject: Law
Pages: 40
Words: 12650
Reading time:
49 min
Study level: College

Abstract

The transfer of risk is a concept that has many theories attached to it. It has to be understood from its practical significance. It is in the risk establishment that the different parties get to understand their duties in the contract and the repercussions of not adhering to the duties. The critical evaluation of the time when the risk will pass helps in apportioning liability when a breach occurs. The contracting parties are free to insert any lawful clause in the contract, which determines when the risk is to pass to protect their interests. There are several ways in which the parties may be pushed to agree on given terms. Moreover, several laws govern the relationship between the seller and the buyer. The Incoterms are used in that they dictate the terms that the parties choose to be bound by. The contract under the Incoterms could be FOB, FAS, CIF and C&F. In the event of a breach, the contract will be considered in the terms that the seller and the buyer designed before the court resorts to other rules of general interpretation. The time of the coming into effect of the terms may be guided by the implied terms of the contract of sale. The general rule with respect to contracts that involve transshipment has been held to be different from a normal contract of sale. The contract of sale is flexible in that it may allow the parties to use both the domestic and the international statutes.

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This paper has an in-depth analysis on the issue of the passing of property and risk in the international sale of goods. The concentration of the paper is at the time when the risk in the contract of sale is ascertained. The international sale of goods contract is considered, with specific elaboration on several countries and their idea of risk apportionment. The prevailing trade usage will be provided. A comparative analysis on the issue of transfer of risk in Greece and England will also be considered. The paper will further provide an elaborate discussion on different types of carriers and the relationship that exists between the carrier and the seller. The paper will offer definitions to some of the key terms and how they are used in the international sale of goods. The different types of goods and their usage in the international sale of goods are discussed in this paper. It has become clear that the understanding of the nature of the goods and the contract has a connection with the determination of the issue of the passing of property. The ascertainment of the nature of goods acts as the main element that needs to be considered before it can be determined whether the risk has passed and the consequences. There are several approaches that some of the parties in the contract of sale have adapted to be able to determine their rights and obligations in the contract of sale. The approaches and theories used have been fully discussed in this paper.

Introduction

International sale of goods entails a contract of sale or an agreement of sale of goods whereby the goods are either ascertained, unascertained or future goods. At the global level of buying and selling goods, the two parties do not necessarily have to meet and agree on the terms of their contract. In many cases they use their agents or the transaction takes place without them meeting. In such instances, the transaction is highly facilitated by the use of banks and other international sale of goods documents. The nature of the sale of goods is mostly termed as a sale of documents. The buyer does not pay for the goods after he or she has received them. The payment takes place against the document of title. The transactions are under the jurisdiction of the international sale of goods law. The law could be the usage of incoterms or other statutes of an international application. The different INCOTERMS are of great use when the two parties are carrying out their business. They facilitate the issues appertaining to the passage of property and the risk in the goods. The nature of the transfer of goods calls for them to be adequately insured against any form of risks on the way before they reach the destined buyer or his agent. The marine insurance logistics are well catered for by the buyer. However, in given cases, the seller pays for the insurance and the cost is pushed on to the buyer. The international sale of goods contracts exists due to the fact that the issue of risk is greatly addressed. The transfer of the risk and property in goods makes it fundamental to have the goods insured. The risk is deemed to have been transferred with the property once the property has been transferred to the buyer.1 These transactions do not carry that nature all the time. In some cases, the risk is transferred at a later date. The parties in the international contract of sale are free to decide the time when the property in the goods is to pass. This dissertation will offer an elaborate discussion on the different categories of goods in the international sale of goods. Secondly, it will provide a discussion on how property passes under international sale of goods, as well as the safeguards put in place to ensure that the issue of risk is catered for. Lastly, the general guidelines on the international sale of goods will be addressed.2

An agreement of sale and a contract of sale of goods

The agreement of sale of goods in international sale of goods occurs in cases whereby there is a preceding condition before the agreement becomes a contract. In many cases, it is an agreement in respect to future or unascertained goods. In this case it means once the goods are ascertained, the contract changes its identity to a contract of sale. Loosely speaking, it is an agreement whereby the seller agrees to transfer the property in the goods at a future agreed date. The agreement is based on a consideration known as the price. Through case law and usage, it has been understood that the price in the goods may be paid at the time of the agreement or a future date. It could be half price and another valuable consideration, depending on the agreement of the buyer and the seller. The agreement should spell out the nature of the agreement with an elaborate clause on consideration and how the buyer should pay it. It is imperative to note that failure to pay the agreed consideration gives the seller certain rights under the law. The seller has an option of terminating the contract and suing for damages because the buyer has breached. The agreement has similar implications of the contract itself. The enforceable rights against the other party are dealt with in the same manner as those in a contract of sale of goods. In international sale of goods, parties elect the court in which to take their dispute once there is a default on one party.3 In some cases the parties will settle on arbitration.

A contract of sale is a transfer of property in goods or goods for a consideration known as price. The main distinguishing feature between a contract of sale and an agreement of sale is based on the nature of goods. For a contract of sale, the goods are ascertainable. The property in the goods can be transferred immediately. With the goods and the property in them being ascertainable, it is clear that the parties in a contract of sale agree on goods that are available at the time of the contract. The terms of the contract are designed in a way that they allow both parties to understand their obligations in the contract. A party in a contract of sale knows his or her remedies and rights in the contract at the stage of making it. It is imperative to note that the nature of goods dictates the type of contract that the parties in international sale of goods have to enter into. The parties will enter into an agreement in the event that the goods are to be ascertained in the future. On the other hand, the parties enter into a contract of sale if the goods are ascertained.4

Categories of goods in international sale of goods

On the international sale of goods, the subject matter of either the contract or the agreement of sale is the goods. The goods are classified into several categories. First, it is the ascertained goods.5 These are goods that the seller has in his possession or his agent and the property in the goods can be transferred immediately. Ascertainable goods are in many cases transferred into the names of the buyer upon the payment of the purchase price. On the other hand, unascertained goods are goods that are not identified by the seller during the time of the contract, thus the two parties will execute an agreement of sale of goods as opposed to a contract of sale. The two types of goods have clearly elaborated that they form the basis under which the parties choose either to contract for sale or to agree to enter into an agreement for sale. Third, in international sale of goods, the parties may decide to contract for specific goods. Specific goods are closely related to ascertained goods. In a case of specific goods, the parties will execute a contract of sale. Fourth, future goods are also a subject of international sale of goods. These are goods that the seller will get their control of at a future date. The buyer is free to terminate the agreement in an event that the seller does not get the goods. The agreement depends on the seller getting the goods. The foregoing discussion clearly draws a close connection between the nature of a contract and the goods that the seller and the buyer enter into.6

On the international sale of goods, the passing of risk and property is the most fundamental clause in the contract. The parties to the agreement or contract should enter into a bargain whereby they agree on the conditions and the warranties that should be reflected in the contract. The breach of the contract is subject to the law that the parties agree on. The domestic law of sale of goods is used in cases where the two parties to the contract have come to an agreement. However, there are international sale of goods terms that must be incorporated in the contract of sale. The contract of sale has its covenants set in the international usage and customs. It is grounded in the international case law and other set precedents. In the contract of sale, the passage of property and risk depends on the agreements of the parties. The costs related to the carriage are pushed on to the buyer during the contracting period. In some of the contracts, the buyer has the obligation of paying for his carriage and other costs involved in the process of transporting the goods. The rights and responsibilities of the carrier in the international sale of goods vary significantly due to the fact that many of the contracts are designed according to the interests of the seller and the buyer. There are cases whereby the seller and the buyer may decide to treat some of the conditions in the agreement as warranties.7

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Passing of risk

The passing of the risk in a contract of sale is very imperative for both parties in the contract. It is a determinant factor in cases whereby the goods are damaged or destroyed while in transit. The consequences of the said loss will be determined by the time when the risk in the goods is passed. The moment when the risk passes is important to the carrier. Risk is generally described as the state at which a person bears a loss upon the loss or destruction of the goods. Being at risk could also mean that a party is discharged from the obligations, while the other is bound by the obligations. It is a case whereby the goods are lost while in transit and the parties had agreed that property in the goods will pass upon delivery. The guiding concept in international sale of goods is that risk in the goods should pass at the time that the parties in the contract of sale intend it to pass. Although the United Nation Convention on the sale of goods is silent about when the risk in the goods should pass, it has been throughout time construed to mean that risk passes upon the agreement of the parties in the contract. In cases where the contract of sale does not have a clause to the contrary, risk in the goods passes upon the title passing to the buyer. The passing of the risk and the title is the general rule, but parties to the contract are free to come up with certain modifications that will make their contract reflect the terms that they have agreed upon. The statutory terms that the parties in the contract have agreed on will be applicable.8

The passage of title and delivery is not automatic. In cases where the parties transfer the property but the seller delays on his way to implement delivery, the buyer can hold the seller liable. In instances whereby quasi specific goods have been destroyed, the buyer has no claim against the seller for the property in the goods is held to have passed to the buyer. There are instances when the parties agree on the contract based on the CIF sales. In that case, the risk passes to the buyer upon paying the purchase price against the documents. The passing of the risk in this case is retrospective. This means that the risk will pass to the buyer from the time of shipment. A major drawback in the contracts that are under CIF is when the risk in the goods is to pass in instances where they have been destroyed by the seller’s knowledge. To apportion where risk is to be upon the loss of goods where the contract is CIF has been a challenge throughout the years. Different parties to the contract of sale have adopted a different way of treating specific terms in the contract of sale. They have decided to insert conditions and terms that are interpreted in favor of their specific interests. The knowledge of the seller in this instance could be put into consideration by the parties. It has been contended that the parties to a contract of sale are free to agree on the various terms that they deem favorable to their contract of sale.9

There are various terms that make the risk passing a foundation for every international sale of goods agreement. They aid in apportioning the party to bear the burden once loss of the goods or theft has occurred. The terms are a mere creation of the parties in the agreement. It is by their agreement that they omit the terms or include them in the contract of sale. The Incoterms 2000 are some of the most fundamental terms that make an international sale of goods contract have its entire meaning. The word Incoterms stands for International Chamber of Commerce. The first publication of the terms was in 1936. The terms have been reprinted further, with the most recent of all being in 2000. The terms have been modified in a way that they are friendly to parties in a sale of goods contract. Contrary to what many hold, Incoterms are the terms of sale but not terms of carriage of goods. They specifically address the issue of when risk in the goods is presumed to have passed from one party to another. The issue of when property and risk in the goods is to pass from the seller is clearly addressed using the appropriate Incoterms. In addition, the obligations of each party with regard to the expenses incurred during transit of the goods are addressed by Incoterms. With regard to shipment, the terms clearly provide a clear apportionment of the party who is to bear the burden in cases of custom clearance and cargo insurance arrangements. The most common terms in the international sale of goods contract are in respect to instances where the shipment of the goods takes place through sea or inland waterways. Marine carriage contracts are in many cases drafted based on the Incoterms. Though Incoterms are specifically seen during the international contracts, they can as well be referred to in the domestic sale of goods. Their main advantage is that they deal with a specific sale of goods contract. Their limitation is that they do not address the issue of passage of ownership, but the risks involved in the passing of the title. Further, the issue of breach of contract is not considered. The exclusion of the said matters means that the contract of sale will be interpreted according to the terms agreed by the parties in the agreement, as well as the applicable law.10

Incorterms

There are several terms that are used with regard to the goods that reach the seller through the sea. They include: Free on Board, Free alongside the Ship, Cost and Freight, and Cost Insurance Freight. The following is a discussion of the Incoterms and the several obligations imposed on the parties in the contract.

Free on Board

The parties who invoke the Free on Board clause basically impose a condition that the seller has an obligation to deliver the goods to the named port of shipment. In essence, the buyer bears all the costs in relation to the risk or damage of the goods at the material time. If the goods are sold FOB, this means that the seller will be expected to clear the goods from the port.11 The term is used in transactions that involve the sea and inland waterways. Unlike many other terms, a contract based on the FOB terms is very flexible. The buyer in the contract of sale acts as the shipper and has an obligation of ascertaining the ship that will be used during the transit of the goods. In addition, the buyer takes a key role in the conclusion of the carriage contract, as well as collecting the bill of lading and paying the freight. The insurance payment arrangements are also concluded by the buyer. The seller has a limitation as to the extent of liability in putting the goods in the rail and making sure that it is within the date agreed by the parties in the agreement. The putting of the goods on board of the nominated ship must be in accordance to the customs of the port. The seller has an obligation to pay for the delivery of the goods at the time he is putting them on board. The export duties are also left in the hands of the seller. The seller must notify the buyer upon payment. The notification must be coupled with informing the buyer, through a commercial invoice, the nature of the transaction and the much expected from the refund. Other documents that will enable the buyer to get a good title of the goods are also obtained and sent to facilitate the discharge of the goods from the port. It is such documents that allow the buyer to obtain the bill of lading, making the buyer ready to receive the goods. In most cases, the terms of the contract of sale are such that they may impose more obligations on the side of the seller than the mentioned ones. The obligations agreed during the formation of the contract will add to the obligations that exist in a contract of sale FOB.12

It is to be noted even though the seller is entitled to be reimbursed for the amount that he uses during the booking of the vessel, delivering of the goods, procuring of the bill of lading, the expense vests in the seller at the contract level. There are obligations that strictly rest on the seller. They include the payment of freight. The cargo and the insurance obligations are in this case also supposed to be dealt with by the buyer. The seller’s obligations cease to operate once he has taken part in the taking of the good on board the ship that is elected by the seller. In instances where the seller takes part in the procuring of the bill of lading, then he is not treated as a party to the contract of carriage. He is not under any obligation to state the nature in which the goods will arrive. He does not have to undertake that the goods will reach the buyer safely. The seller has an option of suing the carrier in an event that loss or damage of the goods occurs. If the loss falls under the marine insurance policy, then the insurance company will step in to offer compensation as per the contract. The buyer has an obligation to pay where all the documents procured by the seller on behalf of the buyer conform to the terms in the contract. The buyer may, in some cases, reject the documents. This happens in cases when the documents fail to conform to the contract of sale. The defect may be cured by the seller tendering new documents which conform to the contract of sale. Such curing of the defect must be made within the stipulated period. The buyer in such a contract has an option of rejecting the goods if they do not conform to the contract of sale. This may occur even when the buyer had accepted the goods and the non-conformity is evident in the documents. The seller may elect to treat the breach as a breach of a warranty and sue for damages.13

Free Alongside Ship

The Incoterm means that the goods once delivered are placed alongside the vessel that is to undertake the carriage. This is done in the named port of shipment. The buyer takes up the responsibility from that moment. The buyer is, therefore, responsible for any risks that occur due to the loss or damage of the goods. FAS impose an obligation on the seller to clear the goods for export purposes. This Incoterm is a complete reverse of the other Incoterms since it requires the buyer to arrange for clearance of the exports. The obligation may also be on the buyer, but express provisions to that effect must be contained in the contract of sale. The term is mostly applicable for sea, as well as in inland waterway transport. The exception of the loading acts as the main way in which the FAS contract of sale differs with FOB. The other clauses in the contract operate with a lot of similarity.

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Cost and Freight

The delivery of the goods under the above Incoterm is upon the ship’s passing the port of shipment. The seller is supposed to pay for the goods in respect to costs related to freight. The risks involved in the contract are transferred to the buyer. The additional costs after the delivery of the goods are pushed to the buyer. CFR requires the seller to take up the responsibility of clearing the goods for export purposes. The term is very common in contracts of sea and inland waterways.

Cost Insurance and Freight

This means that the seller has a duty to deliver once the goods pass the ship’s rail. The seller must pay the goods upon them reaching at the rail of the ship. The costs of freight that are necessary to make sure that the goods reach the port are paid by the buyer. The risks associated with the loss of the goods, as well as damage during carriage are transferred to the buyer as from the time of delivery. The seller has a duty of arranging the payment of the marine insurance policy to enable the buyer be safe in an event of a risk occurring. The seller enters into a contract with the insurance and pays the premiums. The seller in this case obtains the insurance on a minimum cover basis. In instances where the buyer requires a greater cover, then the buyer is supposed to enter into a separate contract with the insurance company to that respect. The CIF contract gives the seller an obligation of clearing the goods for export purposes. Under this contract, the seller is the shipper. He assumes the role of a shipper as principal, but not an agent of the buyer. The insurance contract is entered between the seller and the insurance company in the name of the buyer.14 In this respect, the seller acts as an agent of the buyer. The seller also delivers the goods in the ship at his own costs. This is done in accordance with the time that the parties in the contract have agreed. The shipping documents should be sent promptly to the buyer. The documents entail a commercial invoice, bill of lading, and the insurance policy. Any other document that may be needed by the law of sale of goods is also included in the shipping documents. The goods sold under CIF give the seller the right to sell the goods afloat. Upon the selling of the goods afloat, the seller is expected to transfer the rights as they are contained under the contract of carriage and insurance. The CIF contract has been termed as a contract for the sale of documents because the payment of the goods takes place against the documents.15 Under the CIF, the seller does not promise that the goods will arrive in good condition or arrive at all.16 However, he states that the carrier will be answerable once the goods have not been delivered in the right state. Failure of the seller to undertake anything about the safety of the goods is based on the reasoning that the insurance cover takes care of that.17 The seller is supposed to pay against the documents if they conform to the contract. Rejection of the documents by the buyer means that he cannot pay because payment under CIF is against the documents.18

Under the Uniform Commercial Code the above discussed terms have been included with some elaboration on their application. The description explains the question of when and how the risk passes in detail. The standardized sale by the U.C.C has several terms that can be also termed as Incoterms. They are almost identical and the modifications in every state are designed to ensure that there is a room to allow the application of the Incoterms without them conflicting. The below discussed terms have the following meaning according to the U.C.C. To start with the contract, FOB means that the goods are free on board. The delivery under the U.C.C is to the effect that the seller must place the goods in a manner in which is in conformity with the agreed terms of the contract at the place of shipment. He also bears the risk and expense of putting the goods in the carrier. Under the FOB, the seller must ensure that he transports the goods to the agreed destination at his own expense. The loading of the goods on the carrier is at the expense of the seller. The contract must closely relate to the terms in the bill of lading. The seller must offer instructions on the making of delivery and the loading of the cargo. He has the right to move the goods in any reasonable manner without getting permission from the buyer.19

The buyer in the case of the FOB has the control of the delivery on board. After the delivery, the seller is held free from any form of liability if the carrier does not deliver goods of the agree amount. The buyer has no right to demand the documents before the seller executes his obligations. The seller may not move the goods in preparation of the delivery. In addition, the shipping of the goods and the obligations on the carrier do not affect the obligations that the carrier has of transporting the goods to the destination that the buyer has instructed him. The obligations of the carrier are distinct from the duties and the obligations on the seller and the buyer. The liability is supposed to be in accordance with the duties separately each one of them upon suing any of the two.

The general rule with respect to liability is that each party bears the liability depending on the duties that he or she has breached. In the general sale of goods contract, it is the duty of the parties to execute their obligations with the means that they have. This could be with respect to the carrying of the goods or delivery to the agreed place. In this regard, it is the agreement of the parties that is to be followed in cases whereby there is no provision of the law to suggest something else. However, even in cases whereby the law is silent or it is suggesting the duty to be on a person, it is the parties in the contract who have a final say regarding the risk because it is subject to their contract.20

The seller has a duty to inform the buyer when there is a designated bulk of goods to be put under the control of the warehouse and it is destroyed. In any case, the goods have not been ascertained and the seller has a duty to pay the buyer for the loss of the goods. When the value of the goods goes down during the transporting of the goods, then the carrier and seller may be jointly held to account for some of the damage on goods that happens during the handling of the goods. When the goods are to be shipped by sea, then the seller is under an obligation to offer all the details concerning the shipping in order to give the details to enable the buyer get the appropriate covering insurance for his or her goods on transit.21

The consideration of the passing of risk is governed by both the international statutes, as well as the domestic laws. It is upon the seller and the buyer to reach an agreement to the nature of the law that should govern them. In some cases, the domestic sale of goods of the seller is most preferable.22 The parties must come up with the preferred laws to be applicable in an event that a dispute ensues. The parties may choose to be governed by the international statutes in some of the rare cases, while other times it could be in their preference to adopt the domestic sale of goods laws. The good thing about the two laws is that they supplement one another and can be used together. They rarely conflict and parties are free to invoke the provisions of both. A consideration of the United Kingdom Sale of goods Act demonstrates the earlier position. Section 20 of the Act states that the goods, at all material times of the contract of sale, remain in the hands of the seller and the risk in them passes with the property in the goods. It does not matter whether the delivery of the goods has been made or not.23 The United Kingdom Sale of Goods Act gives an elaborate definition of several goods, how the transfer is implemented, and how they differ from others. In an instance whereby the contract of sale is unconditional, then it is clear that the specific goods in the contract are handled according to the agreement of the parties. This is the situation, unless the parties have a contrary intention. It does not matter about the time of the payment is the actual time agreed by the seller and the buyer or they have postponed it. The parties in the contract should ensure that they understand the contractual obligations that they have. Failure to understand them may make them liable even in cases whereby they have a right to waive some of their obligations.24 The courts have a tradition of inferring the intentions from the parties when they are not clear. In a case whereby the title is unconditional, then it is clear that the title in the goods is to pass upon the delivery of the goods.25

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The deliverable state of the goods is to the effect they are in a state that the title in the goods together with the risk can be transferred at the same time. The time of delivery is based on the actual state of goods. When the seller has undertaken to do something to the specific goods in order to have them put in a deliverable state, then the buyer has a duty to enforce the contract. There is no necessary provision that the seller and the buyer should agree to the terms of the contract if they are illegal. The buyer has the right to evade the contract if a vitiating factor is introduced in the contract. The party’s intention is of importance and it ultimately determines when the title in the goods is to pass. 26

There are no provisions of the United Nations Convention on Contracts for the International Sale of Goods 1980, which have specific reference to the passing of title in the goods. The convention has a slight address of the risk, but it avoids reference to the title. The issues pertaining title are left in the purview of the domestic law.27 The rules of private international law come into play whenever it is impractical to determine the specific domestic law applicable. Article 67(1) provides that the fact that a seller has the right of retaining documents does not mean that it has any effect on the title of the goods passing. Under the civil law, passing of the title is at the time when the parties agree or whenever the contract is silent at a time when the parties consent to the selling, irrespective of whether the goods have been paid for or not. The buyer and the seller in a contract of sale enter into several warranties and conditions that are the governing elements of the contract of sale. 28

The transfer of risk and property is a question of practical application and the parties in a sale of goods contract have a duty to understand fully the practicability of the aspect. There are potentially harsh consequences for failing to comply with the rules in the transfer of risk and property in the goods. The practicability of the two aspects has been recognized since the Roman period.29 Jurists, judges, and law practitioners have used the aspect of passage of risk to ensure that they apportion the liability of any given party. In international sale of goods, it is a question that one cannot possibly omit to consider when either drafting the contract for the parties or aiding an aggrieved party to ascertain if there is a breach of the contract. The nature of the question of risk has attracted various theories. The theories have been designed to deal with the problem. In an ideal contract of sale, then the discharge of the obligations and the conclusion of the contract should take place simultaneously. However, in international sale of goods, the story is different as the parties in the contract of sale are in different countries and they facilitate the transaction through agents.30 Of significant importance in these contracts is the time when the contract is performed. The two parties concentrate on the time when the goods reach the buyer, as well as the payment of the goods. However, the occurrence of the above events may be interfered with by other events, either within the control of the parties or totally beyond their control.31

The unfortunate events may happen during the loading of the goods or when the goods are in transit. In common cases, goods may be damaged during the offloading process. The following section is offering an introduction to the theories of transfer of risk. There are several theories that explain the time when the risk in the goods will pass from one party to another.32 They are: the time when the contract is concluded, the time of the passing of the property in goods, and the time of the delivery of the goods. The above mentioned theories have a crucial role to play in cases whereby the risk between the parties has not yet passed and there is a dispute between the parties. The basic risk understanding is governed by several rules as explained below. The concept of risk is one of the basic rules that must be understood together with the consequences of the risk. It is important to ascertain the effect in law of a given transfer of risk from one party to another. The seller has the following consequences. First, he may recover the price of the goods. Secondly, the buyer must pay the goods and take delivery. The paying of the goods is irrespective of whether they have been damaged or destroyed in totality. Any other harsh consequences are mitigated by the existence of an insurance cover to the goods. The insurance may, in some cases, become inadequate bearing in mind that the risk of the goods is of a bigger magnitude. The party who has the risk has a right to press a claim against the insurance company.33 The fact that the insurance companies have a habit of making the compensation at a later date makes it hard to salvage the remaining goods and take them to the market.34

The concept of risk is both common in the English and Greek Law. There are provisions in different conventions, which also deal with the issue of carriage and risk. A general survey of the existing case law and other commentaries clearly indicate that loss and damage are not only common in the good transported through the sea. The risks can range from the loss of the goods in a warehouse to damage of the goods by a stranger. The transfer of risk in an on loading ship has been considered in several international conventions.35 Under the English law, the shipment of goods occurs through the actual transporting of the goods past the ships rail or to the agreed place by the parties. Under the English law, the goods are transported by the seller to the shipping point. The parties may fail to specify the exact time of the passage of the risk. Under the English law, it is submitted that the parties agree that the ship’s rail is the final point where the transfer of risk occurs. This has been criticized for not being in compliance with modern trade. The new clauses that found their way in the Vienna Convention and the Incoterms of 1990 were specifically designed to illustrate the seller’s carrier’s custody as the most viable point. The seller’s duty is complete in an event that the carrier obtains delivery of the goods. It has been suggested that this point offers a satisfactory solution in the event that the issue of ascertaining risk is in question. There are some cases whereby the party may intervene to request a postponement of the contractual intentions. This can happen in cases when the loading process is taking place. The most favorable part in a CIF contract is that it offers the seller an opportunity to ship large quantities of goods and the buyer is allocated part of the goods while they are afloat. The Greek law on the risk while the goods are afloat has indicated that the risk transfer could act retrospectively. This means that it may act from the time of shipment.36

The only solution that one can get in the Greek law must be closely related to the instances offered by the English law. There is a considerable disagreement amongst the academics as to when the risk in supposed to pass. There are those who consider the English law position and others who have supported the Greek position. The disagreements are fully supported by case law and other authorities to justify them. The English law position has been considered as the most favorable bearing in mind the fact that it agrees with the position of the convention. It is important to consider the two differing positions to determine the most favorable position. First, the English law states that the CIF contract the goods must be specific and have been appropriated at the time of the contract. The seller is also given an opportunity to validate the tender documents. The validation of documents is allowed in cases where the goods have been lost. This is done to make sure that the goods are in conformity with the contract of sale by the parties.37 The results are different if it is established that the goods were lost before the contract was concluded. It could also have happened after the sale, but before the allocation takes place.38 The Convention makes no specific reference to the CIF contracts. However, a liberal interpretation of article 68 suggests that those goods that are sold in transit could possibly apply in such cases. The issue of risk is dealt with under the contract, which suggests that it passes after the contract has been concluded. A retrospective transfer will depend on the circumstances of each case. One of the most common cases is when the insurance cover has been endorsed and it was not within the knowledge of the seller that the goods had been destroyed or damaged after the shipment process.39

The sale of the goods already lost is one of the most common situations that require considerable analysis. The complications of the Greek law emanates from the law of contract, whereby the parties to the contract can reach a valid contract even when a party to the contract promises to deliver something impossible. The impossibility in performance under the Greek law is treated differently from the English law. The buyer is held liable to pay the price even when the seller knew that the goods were destroyed and concluded the contract while having such knowledge. The position under the English law is quite different. The English law states that the buyer is not supposed to pay for the goods when the subject matter of the contract is destroyed or has been lost. The seller’s fault in this case is required so that the buyer can weigh the options of suing under tort. The contract becomes void for mistake if the subject matter was destroyed before the contract was concluded. This situation is governed by article 68 of the Convention. The buyer is held to bear all the loss in situations where the circumstances of the case indicate otherwise. The point of liability could be at the time when the goods were handed over to the carrier who had the documents that contained the contract of carriage. In the above mentioned circumstances, the word could be used to infer the intention of the parties. The circumstances in any given situation are to be construed with regard to the main terms of the contract. This is the only way that the intentions of the parties could be expressed. The construing of the contract could indicate that the risk in the goods passed during the carriage process. The seller under a CIF contract is required to make sure that the goods have been insured. It so happens that the price of the insurance is paid by the buyer through the purchase price.40

The second situation is when the goods under the sale of goods contract deteriorates. In a contract sold under CIF in the English law, risk is on the buyer as during the time of shipment. The buyer is disadvantaged as he remains under an express duty to pay for the goods, even when they have substantially deteriorated. It has been suggested that the buyer has an option of rejecting the tendered documents. This should be the case, irrespective of whether the goods have been damaged wholly or partly. This point is very unclear, according to the Greek law.41 The line drawn between total loss and deterioration seems to make no substantial difference. The third situation that generates a lot of controversy is when there is generic sale. The risk of the goods is before the appropriation. Under the English jurisprudence, the CIF contract may be entered into even when the seller has the knowledge that the goods that are the subject of the contract have been lost. The situation is different where it is established that the goods were lost before they were appropriated. The relevant provisions are in English, Greek, and Convention law.42 In Greek law, the transfer of the possession takes place in a case that refers to the transfer and delivery of the goods. Under Article 522(1) of the Greek Civil Code, it is provided that the risk of destruction vests on the buyer during the time of delivery. This rule allows different contracts to be entered depending on the agreement of the parties. The seller is obliged to deliver at the place of the buyer’s residence if the contract is unclear about the place of delivery. The seller may also deliver to the agent of the seller and he will be deemed to have done the delivery. The seller is responsible for the damage that is caused on the goods in a situation where the seller performs his part of the contract without any negligence on his part and the buyer rejects to perform his part. With respect to generic goods, risk will only pass upon identifying of the goods.43

The Vienna Convention also has provisions that relate to the passing of title and property in goods. Article 69 provides for the general rule whereby the passage of the risk falls under articles 67 and 68. The article provides that the risk in goods will pass when the buyer takes over the goods. If the buyer does not take over the goods, then passage of property takes place in due time. The risk is presumed to have passed to him at the moment when the buyer takes the goods. A breach of the contract may be committed by the buyer by failing to take delivery. The foregoing provision has a subsidiary function. In international sales, the whole transaction is assumed to be applicable whereby the transport obligation is imposed on the seller. This is, however, the case in very exceptional circumstances. The goods are placed under the buyer’s disposal only when it has been established that the seller has worked out all the preparatory measures. The preparatory measures particularly entail identifying the goods. The seller is under a duty to inform the buyer. Article 69 will only come into play if the buyer is bound to take over the goods. In the above illustrated cases, the buyer’s single act is enough to pass the risk to the seller.44

The position of the passing of the risk under the English law is governed by section 20(1) of the Sale of Goods Act 1979. The section introduces a connection between the passing of property and the risk. There are salient rules that govern the passing of the property in a situation whereby the sale does not involve the carriage of goods. Section 17(1) of the sale of Goods Act further states that if the sale is of identifiable goods, then the property is in the hands of the party the contract of sale intend it to pass. There rules as set out under section 18 of the Sale of Goods Act, which dictates the time when the passing of the property is to take place. The intention of the parties is ascertained by referring to the conduct of the parties to the contract. There is a presumption upon the conclusion of the contract. The starting point under the sale of generic goods is to identify the goods. The intention of the parties is a vague concept and it cannot be said with certainty that the true intention of the parties can be identified in all circumstances.45 The best way to sort out the issue of the intention is to make sure that there is compliance by both parties according to the terms of the contract. The delivery of the goods to the correct destination is in accordance with the agreement by both parties.

The above analysis indicates that risk in the property, according to the English law, passes when the parties want it to pass. It is upon the seller and the buyer to make it clear on the exact time that they intend the risk in the goods to pass. It is dubious to infer from the conduct of the parties, thus the parties ought to fulfill their obligation according to the terms spelt out during the contracting period. The English law also mixes the rules of ascertaining the passing of property in goods. The risk passes upon the shipment in the sale of goods under the FOB and CIF as per the English law. The risk in the goods also passes once they have been ascertained.46

A comparative evaluation

The Greek Civil Code and the Convention agree on the approach of ascertaining the passing of risk and the property in the goods with respect to the simple situation where the seller and the buyer enter into a contract of the buying and delivering of the goods. They both use the approach of presuming a risk to have been transferred upon delivery of the goods to the buyer. On the contrary, the English law presumes passing of property and risk to occur when the contract of sale is concluded. This is one of the critical points of risk passing as it is the same time that the property passes. The first approach by the Greek and Convention laws is said to be more efficient because the seller is in control of the goods in his custody.47 The buyer is placed at a better position to protect the goods and insure them from any form of destruction. The three jurisdictions seem to have the same position with respect to the sale of generic goods. They all agreed that the goods must first be ascertained before the property and risk in the goods can pass. Both the Greek and the Convention require that the seller and the buyer must know the true identity of the goods in cases that involve the dispatch of the goods. In addition, the three systems agree on the issue of when the buyer has not taken the delivery of the goods.48 The default of the buyer in taking delivery is treated in the same manner in all the three legal systems. The respective analysis of the relationship between the seller and the buyer is to the effect that one does not need to establish the delivery of the goods for the other party to be held liable. The payments in the three regimes suggest the payment against the documents.49

The expression that is used in many of the contracts seeking to hand over the goods to the carrier indicates that there are certain cases whereby the carrier may be held liable. The risk and property consideration have created much consideration on the contract between the seller and the buyer, thereby putting less emphasis on the risk that may exist when the carriage contract is in existence. Article 67 of the Vienna Convention on the Sale of Goods captures the word handing over to mean the fulfillment of the delivery obligation. The handing over means that the time the goods are under the control and the custody of the carrier is over, thus the transfer of risk occurs immediately. The hading over is designed in a way that it is complete once the carrier obtains the physical possession of the goods getting ready to transmit them. It ought to be emphasized that making the goods ready for dispatch does not mean that the carriage contract is fulfilled. In addition, the handing over of the documents is not enough, thus physical possession is required. In some of the contracts, the word handing over is replaced with the word delivery. These are words commonly made reference to under the United Laws of International Sales. Article 97 of the ULIS provides that the risk on the goods is passed on delivery. The article makes it clear that handing over is for the goods that conform to a given description. In the English law, understanding of risk and delivery cannot be passed on defective goods.50 The word handing over in the English law does away with any form of defects. The risk is held to remain with the seller even if the goods have been passed to the carrier to transmit to the buyer in a situation whereby the goods are defective.51 In other words, passing of risk and property cannot be said to occur when the goods are defective. Such reasoning has been said to present an impediment to the sale of goods in the international sphere because possession of the goods happens at a later stage once the documents have been exchanged and the payment of the goods made.52

There are circumstances when the parties to the international sale may agree on terms that may slightly deviate from the operation of the Convention’s provisions in relation to the passing of risk. The goods are handed over to the carrier’s control if the contract has been made following the Incoterms. This is deemed to be holding of the goods for the benefit of the buyer. Some critics have questioned the authority of the carrier to hold the goods for the benefit of the buyer, yet the carrier is not part of the initial contract between the seller and the buyer. The reason why international sale of goods agreements have become highly preferred is that they are flexible in issues related to delivery and passing of title. Imposing a strict condition about the delivery and the passing of the title and risk may introduce new constraints, thereby making the contract of sale more unpopular. In the Greek Law of Sale of Goods, the delivery of goods to the carrier has a similar meaning to the English Law.53 It is the actual delivery of the goods to the carrier.54 This is also similar to the Vienna Convention handing over. The solution provided by the above laws in having a system that seeks to unify some of the rules is rooted in the notion of the freedom of contract.55

All the legal systems discussed above seem to agree that the security of goods is guaranteed once loaded on the rail. The buyer has a contract with the carrier, which excludes the obligations of the seller. The carrier’s control marks the end of the carrier’s duties. Under the Convention, the seller has the duty to collect the goods specifically from the premises of the seller. The next step after the collection of the goods is to load them to the vehicle. The Convention suggests that the loading should be done in the presence of the carrier. This is sufficient where the carrier declines to undertake the transportation of the goods. In cases whereby the seller loads the goods when the seller is not around, then the risk will pass but the seller may be held liable in an event that the carrier declines to carry the goods. The seller may be required to deliver the goods at the seller’s town in some cases where the existence of the transshipment in cases of carriers where the party’s duties are not expressly provided for. A seller may also be required to enter into the contract of carriage, but he may be required to use his judgment to determine the appropriate mode of transport.56 There could be transshipment, but the buyer has the discretion to decide the mode of transport that is appropriate at the moment that the carrier is about to perform his apart of the contract. The carrier, in this, case is set to follow the instructions of the buyer. It could be in a case whereby the carrier does not know the routes of the place to deliver the goods. The mode of transport being taken by the area may also not exist in the seller’s place of visit.57

The handing over of the goods by the seller could also be an independent to the carrier. The handing over of goods signifies the transfer of possession and control of the goods, given that it is important for the carrier to exist as a separate legal entity from the seller. The handing over of the goods to a freight operator has been held to be insufficient because goods should be left in the hands of an independent carrier for the passing of property to have occurred. The seller’s freight operator may act as a hindrance to the passing of risk. On the other hand, the seller will be entering into many contracts, which may present a situation of real conflict of interest.58 The handing of the goods by the seller cannot be done to him, indicating that an independent carrier is needed. It is to the best interest of the seller in some cases because the seller has other obligations under the contract of sale of goods. The seller may be overwhelmed by the claims against him upon breach of the carrier and the obligations under the contract.59

The nature of the goods under the sale of goods contract falls under different categories. The nature of the goods plays a critical role in ascertaining the risk. The situations of risk in unascertained goods are provided for under article 67(1) of the Convention. The risk, according to the provision, does not pass up to the moment when the goods are clearly ascertainable. The goods do not have any effect with regard to the passing of title and property in the goods in situations whereby the seller ships bulk goods to the buyer. The rationale of identifying the goods before risk could pass is to prevent the seller from laying false claims on goods that are not his. The necessary identification could be the marking of the goods in a way that they are distinguishable from the rest. Any mode of identification that is agreeable by the two parties may be used. The seller is supposed to provide the buyer with a notice of appropriation. The notice should reach the seller in a good state and early enough once it has been dispatched.60

There are several policies that have been put forth by the three legal systems as discussed. The most common principle has been to draw a line between the seller’s delivery of goods for transmission to the buyer and the contract of carriage from the seller to the buyer. There are no distinctions provided with regard to the two kinds of contracts in the Greek and English laws.61 There are some suggestions that the risk is transferred by the seller upon the first carriage of the goods. The first carrier rule has been considered in most of the contracts under the CIP and the CPT. This cannot be the case if the parties have agreed that the goods should be delivered at a given place. The general rule has been that the risk passes when the goods have been transported to a given place. The rule has been that the buyer bears the risk to the transit. It is an internationally recognized rule that aids in achieving efficiency and justice. Efficiency is achieved in the sense that the buyer is saved the costs whereby the shipping documents are handed over to the carrier. The damage of the goods may be identified when the goods have been transported by the sellers. Justice is achieved when the seller insures the goods and negotiates for the bill of lading. This renders him free to deal with the issue of the damaged goods. The importance of the insurance policy is that it provides cover that would not be possible. To salvage the goods from completely being lost is one of the most common ways of making the contract be one that is depended on the insurance cover. The damage that occurs during transit may be extreme and both the seller and the buyer may not be able to be compensated.62 The essence of having an insurance policy that will indemnify the buyer once the goods have been damaged or destroyed has a long standing. Its efficacy has been tested and proven. It explains why there are a lot of buyers and sellers choosing to contract under CIF. It has long been understood that the indemnity in the case of any damage or destruction of goods is the best way to go bearing in mind that the two parties are in most circumstances far away from one another. Article 31 of the Vienna Convention on the Sale of Goods provides for the obligations of the carrier under the international sale of goods contract. The carrier acts as a link between the buyer and the seller. The main function of the carrier in these cases is to ensure that goods are delivered in the agreed place within the time stipulated.63 There could be many carriers in a sale contract. One of the carriers could be involved in the carriage of goods from the rail and handing them over to another carrier who has been nominated by the seller to transport the goods to the desired destination. The arrangement of the dispatch of the goods from the seller to the buyer calls for due diligence to avoid liability that could be occasioned during the loading period.64

The wording of article 31 as read together with article 67 of the Vienna Convention on the Sale of Goods clearly emphasize on the seller’s obligation of transmission of the goods to the buyer and waiting to dispatch them. The contract of sale may provide otherwise, but it has been stated that when the seller hands over the goods to the first carrier, then he has delivered the goods. The Vienna Convention has been held to be an appropriate legal regime in cases whereby the parties agree on many carriage and container transport. It is, thus, distinguishable from the contracts where there is only one carrier that transmits the goods to the seller. There have been considerable derogations from the convention and many parties have modified their contracts to spell out the different rules or come up with an understanding on the time when risk in the goods is to pass. It has been essential to establish the understanding mainly in instances where the contract of carriage has more than one carrier. Risk has been said to pass when the goods pass the ships rail, but the case may be different when the contract has been to hand over to the carrier of the buyer the goods.65 The destination contracts of the goods may also be classified in the sale category with other contracts. A contract of dispatch is that which the seller has assumed additional obligations on top of ensuring that the goods reach the carrier. The seller may, in this case, undertake to dispatch the goods to another place rather than the rail. The need to carry goods from place to place is known as dispatch and it is the seller’s obligation in the contract of sale to facilitate dispatch. In some of the contracts for sale, the seller may be required to transport the goods to enable the buyer perform his part of the contract.66

In the English law, when the buyer undertakes to perform other additional obligations, then it is expected that he will transport the goods to the agreed point for further transmission to the buyer. The above discussion has clearly elaborated the provisions that are contained in a contract for the dispatch of the goods. The concept has long existed, although it is mostly misunderstood as a contract involving carriage. The contract involving carriage is a broad category that should not be taken from the general meaning of the Convention. The literal meaning of delivery and dispatch is one of the very cores of the overlap between the contract of carriage and contract that involves the dispatch of the goods. The contract of sale, as illustrated above, depends on the wording of the parties. It is a contract which has been designed to offer a free space for the parties to reach the agreements that they prefer. The seller and the buyer have the freedom to agree on such terms that are favorable to their part to avoid ambiguity. They have the power to bargain for the terms that they consider favorable to them. The above rules, as they are discussed, have a scope that has several indications. The Convention involves two cases of international sales that have a practical significance in all stages of the contract performance.67 Parties may call for specific application of the law and the limitation of their duties in the contract of sale. It has already been established that the duties of a seller are not clearly provided for in a contract for dispatch, but they may be wide. The basic rule in the mentioned contracts has been to come up with a definite time when the risk in the goods passes. It has been observed that risk in instances that involve transshipment passes when the goods are handed over to the first carrier. The carrier bears the risk of the goods with respect to the transportation from one point to the other. The seller has the freedom of deciding the mode of transport that is favorable for him or her.68

There is a close relationship between the contracts that are used in the Convention and the Incoterms. The relationship between the usages and the Convention has not been laid down in clear terms. It is essential to consider the relationship between the two because they are used in the day-to-day contracts that involve the carriage of goods. The goods are incorporated in the usages in such cases. A distinction should be made between the two factual instances. First, if the parties in a contract of sale come to a conclusion that their contract should be interpreted using the terms set out in the Incoterms, then the existence of Convention rules will supersede what the parties have intended. The judge will be required to use the parties terms of the agreement when a dispute arises between the two contracting parties. The contractual liberty of parties is the most supreme of all rules and courts of law have a duty to interpret the terms, but they are not supposed to provide meanings that were not desired by the parties. It, therefore, means that the question of risk will be governed according to the standard terms set out by the parties and not the Convention.69

Secondly, where the parties have not made reference to the Incoterms or any other standard set out with regard to the terms of the agreement, then the question to be answered is whether the rules of Incoterms should be used in the interpretation of the contract. There are differing opinions on the specific position that should be adopted. Some writers have suggested that when the terms are not included in a contract, then the courts should still use them in the interpretation of the contract. Two techniques have been used so that the judge can be able to achieve the interpretation of the terms of the contract in accordance with the laid down terms. The first suggested solution is in relation to the terms well established by the Incoterms. For instance under the CIF and FOB, the court may find that the parties have inserted the rules relating to the passing of the risk in the goods as a term of usage in the contract of sale. There are strong arguments that have strongly objected this approach. It has been hard for the courts of law to consider a term used in the contract of sale as a usage in relation to a given type of trade. It has been used in the bulk oil sales whereby the courts have found it easy to insert the usage of the term under the Incoterms. The position suggested above has been said to be a normative usage in the nature of all trades. In the United Kingdom, the courts interpreted the terms prior to the court’s decision without considering the terms used. In United States, the interpretation of the contract has been through statutory provisions as opposed to the rules established through case law.70

The third approach is in respect to cases whereby the parties in the contract have used Incoterms in their contract interpretation. The use of Incoterms means that the courts will first interpret the contract in accordance with the terms that are provided for in the contract. If the parties have made reference to Incoterms in their previous transactions, then the court may be forced to use the interpretations that were adopted during that time. On the other hand, the court may also use article 8 of the Vienna Convention on Sale of Goods. The provision states that the courts will interpret the contract in accordance with the Incoterms if it is established that the parties intended it to be a binding usage. The wording of article 8 of the Convention is such that it aids in establishing the intention of the parties to the contract. However, the desired point of getting to understand the intention of the parties has been said to be very unclear. It is not the duty of the court to decide for the parties on the intentions that they had during the terms of the contract. It has been established that judges have first to resort to the Convention to ascertain whether there is a term that can be used to come up with the right interpretation of the contractual statements. The sole goal of interpretation is to give the contract the meaning desired by the parties. Once the judge establishes a provision in the Convention that deals with the risk issue, then it becomes the duty of the court to invoke it.71 Several principles are considered Under Article 67 of the Vienna Convention on Sale of Goods. The first principle prohibits any form of splitting of the risk at the time when the goods are transported to the buyer. This principle is aligned to the understanding that the risk passes on delivery to the first career in a case of transshipment. This rules out the application of the CIF contracts. It, thus, means that the contract of sale is in the international sphere. The second principle is founded on the issue of freedom of contract. The notion of freedom of contract is contained under articles 6 and 67 of the Convention. If the agreement in the contract of sale is to the effect that goods are to be transported to a certain point at a given time, then the risk in the goods only passes upon the transmittal of the goods during such a time. This principle is in total disagreement with the contract of sale of goods FOB. This also conflicts with the understanding that the risk passes upon the goods passing the rail and not during the loading process.72

Courts of law have a wide discretion when interpreting the contracts where the Convention’s approach is to be used. The most important thing to consider during the interpretation is the intentions of the party to the contract of sale. Article 7 expounds on the need to interpret the contract in accordance with the rules of private international law to capture the intention of the parties to the contract. It has been contended that courts of law will only refer to the rules of international law as the last resort. It is the recourse of international law that gives the interpretation of the contract another dimension. Lack of the interpretation rules in the Convention has made it imperative to have considerations based on the intention of the parties and other precedents that have been set through case law. The contracting parties find it useful to come up with the rules that would explain the terms they have been agreed upon in the contract. It is recommended that parties in a contract should avoid vagueness. The contracting parties should provide rules of transfer of risk. The incorporation of the Incoterms in the contract of sale has also helped a great deal in coming up with the proof of the concept of indicating the circumstances. The guiding principle in any contract is that it should be set out in clear terms that would make its interpretation easier such that every party is able to enjoy their rights after executing their obligations. It is to the best interest of the parties to decide whether they should include the usage or Incoterms in the contract of sale.

It does not add any value to the contracting parties to exclude the use of some of the terms that are incorporated in the contract. It has also been established that courts of law are bound by the contractual terms that are laid down by the individuals in their contracts of sale. In the main contract of sale, the parties may agree to invoke the provisions and omit the provisions of some other law. The exclusion of a certain law may help the contracting parties for some time. It should be remembered that there are some laws that will be invoked in the contract to give it a clear meaning. Such laws may supersede the contractual agreements between the parties.73

Conclusion

Upon the analysis of the different laws and the rules used in the interpretation, it is evident that there is a connection between the transfer of risk and the delivery of goods. According to the English law, the passing of risk and property has been said to take place at the same time. The general rule in the international sale of goods has been that the two should pass at different times depending on the intention of the parties. The international sale of goods contracts is based on a common policy and there are common rules that govern the delivery of goods in cases whereby they are in the carrier’s position. The foregoing discussion has clearly shown that the goods that are a subject of the contract must be clearly identified before the issue of risk and property is assessed. The liability of the parties in the contract of the sale is based on the contractual terms, as well as other terms that may be implied by usage or by statute. The distinguishing element between contracts made under different Incoterms has been discussed. The final say in contracts of sale rests with the parties, even though the court may intervene in several occasions to ensure that the parties adhere to the rules as set out in the contract. It has been established that the two parties in the contract do not need to adopt other terms that are not in their favor, while there are clear terms of the contract. The comparisons between the Greek and United Kingdom, as well as the Convention provisions have clearly indicated that there are several differences between the rules of interpretation when it comes to risk transfer in the international trade and sale of goods.

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Footnotes

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  4. Zepos P, “Legal Opinion” Greek Lawyer’s Gazette 1955. 1301.
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  9. Barrow’s (ed.), Basic Oil Laws and Concession Contracts 76.
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  11. Grewal S S, “Risk of Loss in Goods Sold During Transit: A Comparative Study” (1991) 14 Loy L A Int’l and Comp L J.
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  13. Balis G, Contract Law (2nd edn, 1961) 65.
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