This section applies to those cases only where there has been no breach by the seller. Goosic Constr. Co. v. City Nat. Bank of Crete, 196 Neb. 86, 241 N.W.2d 521 (1976).
Prior Uniform Statutory Provision: Section 22, Uniform Sales Act.
Changes: Rewritten, subsection (3) of this section modifying prior law.
Purposes of Changes:
To make it clear that:
1. The underlying theory of these sections on risk of loss is the adoption of the contractual approach rather than an arbitrary shifting of the risk with the "property" in the goods. The scope of the present section, therefor, is limited strictly to those cases where there has been no breach by the seller. Where for any reason his or her delivery or tender fails to conform to the contract, the present section does not apply and the situation is governed by the provisions on effect of breach on risk of loss.
2. The provisions of subsection (1) apply where the contract "requires or authorizes" shipment of the goods. This language is intended to be construed parallel to comparable language in the section on shipment by seller. In order that the goods be "duly delivered to the carrier" under paragraph (a) a contract must be entered into with the carrier which will satisfy the requirements of the section on shipment by the seller and the delivery must be made under circumstances which will enable the seller to take any further steps necessary to a due tender. The underlying reason of this subsection does not require that the shipment be made after contracting, but where, for example, the seller buys the goods afloat and later diverts the shipment to the buyer, he or she must identify the goods to the contract before the risk of loss can pass. To transfer the risk it is enough that a proper shipment and a proper identification come to apply to the same goods although, aside from special agreement, the risk will not pass retroactively to the time of shipment in such a case.
3. Whether the contract involves delivery at the seller's place of business or at the situs of the goods, a merchant seller cannot transfer risk of loss and it remains upon him or her until actual receipt by the buyer, even though full payment has been made and the buyer has been notified that the goods are at his or her disposal. Protection is afforded him or her, in the event of breach by the buyer, under the next section.
The underlying theory of this rule is that a merchant who is to make physical delivery at his or her own place continues meanwhile to control the goods and can be expected to insure his or her interest in them. The buyer, on the other hand, has no control of the goods and it is extremely unlikely that he or she will carry insurance on goods not yet in his or her possession.
4. Where the agreement provides for delivery of the goods as between the buyer and seller without removal from the physical possession of a bailee, the provisions on manner of tender of delivery apply on the point of transfer of risk. Due delivery of a negotiable document of title covering the goods or acknowledgement by the bailee that he or she holds for the buyer completes the "delivery" and passes the risk. See definition of delivery in article 1, section 1-201, and the definition of control in article 7, section 7-106.
5. The provisions of this section are made subject by subsection (4) to the "contrary agreement" of the parties. This language is intended as the equivalent of the phrase "unless otherwise agreed" used more frequently throughout the code. "Contrary" is in no way used as a word of limitation and the buyer and seller are left free to readjust their rights and risks as declared by this section in any manner agreeable to them. Contrary agreement can also be found in the circumstances of the case, a trade usage or practice, or a course of dealing or performance.
Point 1: Section 2-510(1).
Point 2: Sections 2-503 and 2-504.
Point 3: Sections 2-104, 2-503, and 2-510.
Point 4: Section 2-503(4).
Point 5: Section 1-201.
Definitional Cross References:
"Agreement". Section 1-201.
"Buyer". Section 2-103.
"Contract". Section 1-201.
"Delivery". Section 1-201.
"Document of title". Section 1-201.
"Goods". Section 2-105.
"Merchant". Section 2-104.
"Party". Section 1-201.
"Receipt" of goods. Section 2-103.
"Sale on approval". Section 2-326.
"Seller". Section 2-103.