Delivering risks and keys in international sales : a survey of four jurisdictions

The particular nature of international sales concluded on shipment terms makes these sales distinct from other sales concluded on the domestic level in certain respects. The performance of the obligation of the seller to deliver the goods ends upon delivery to the carrier at the port of shipment. Once this is done, the seller no longer takes the risk of loss in transit which will shift to the buyer upon delivery to the carrier. It is also notable that despite the fact that the seller has physically delivered the goods to the carrier at the port of shipment, he is still under an obligation to deliver the documents representing the goods to entitle the buyer to take delivery at the port of discharge. Under sales of this nature, the physical and documentary obligations of the seller are separated. The risk of loss passes to the buyer upon the completion of the physical delivery to the carrier, whereas the right to take delivery from the carrier is transferred upon the tender of documents.This thesis examines the transfer of risk and the right to delivery in international sales in four different jurisdictions. These are the American Uniform Commercial Code, the United Nations Convention on Contracts for the International Sale of Goods 1980, English law, and Kuwaiti law. The first part of the thesis which consists of four chapters focuses on the transfer of risk in international sales. Under this part, the moment at which risk is transferred to the buyer under the relevant jurisdictions is designated. Then, the transfer of risk is examined when trade terms are used, and where the goods are sold in transit. The last chapter in part one considers the effect of breach of contract on the transfer of risk. The second part of the thesis contains three chapters that are devoted to the transfer of the right to delivery. It concentrates on the elements of transferability and negotiability of bills of lading, and whether such document is instrumental in passing to the buyer the right to sue the carrier on the carriage contract concluded between the seller and the carrier.