Wpływ zastrzeżenia warunku na rozkład ryzyka przypadkowej utraty lub uszkodzenia towaru w umowie międzynarodowej sprzedaży towarów
The impact of the stipulation of a condition on the distribution of the risk of loss or damage of goods in a contract for the international sale of goods

Summary/Abstract: A sale with a condition precedent does not immediately have legal effects, so the transfer of the risk of accidental loss or damage to the goods - as one of the obligatory effects of the concluded contract - does not occur, even though the goods have been delivered to the buyer. The transfer of the risk takes place only when the condition precedent is fulfilled, because all the effects of the legal action take effect precisely at that moment (ex nunc) and do not extend to the preceding period, unless otherwise agreed by the parties (as provided, for example, in Article 90 of the Civil Code). This means that for the resolution of any legal issues relating to a conditional legal action that arose before the fulfilment of the condition, the legal state prior to that moment is relevant.The stipulation of a condition makes the emergence or cessation of the legal effects of a concluded contract contingent on a future and uncertain event, and this applies to all effects of the contract, both those indicated by the parties in the text of the contract and those indicated in the law (or other legal act) as legal effects of the performance of a legal action of a certain type. The latter effects of a concluded sales contract include, in particular, the effect of transfer of the risk of accidental loss of or damage to the goods from the seller to the buyer at a certain time (usually at the time of handover of the item to the buyer or its collection from the seller).If a condition precedent is stipulated in a contract of sale, the risk is transferred to the buyer only when the condition is fulfilled and when the requirements set forth in Articles 67-69 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are met. On the other hand, the mere stipulation of a terminating condition in a contract does not affect the transfer of risk to the buyer, which takes place according to the rules set forth in Articles 67-69 of the CISG (Articles 548 and 544 of the Civil Code).If the accidental loss of or damage to the goods occurs during the period of waiting for the fulfilment of the condition, the risk of these events is borne by the party bearing the risk at that time. The fulfilment (non-fulfilment) of a condition has no retroactive effect and does not affect the distribution of risk.If accidental loss of or damage to the goods occurs during the period of waiting for the fulfilment of the condition precedent, the seller bearing the risk may not rely on the subsequent fulfilment of the condition and demand payment of the price if his or her performance became impossible due to these reasons.If the risk is borne by the buyer during the period of waiting for the fulfilment of the terminating condition and an accidental loss of or damage to the goods occur at that time, the fulfilment of this condition does not relieve the buyer from the obligation to pay the price (nor does it entitle him or her to demand its repayment).The consequence of bad faith is that the obligation to surrender the object of enrichment does not cease, even if the enriched person demonstrates that he or she has used up or lost it in such a way that he or she is no longer enriched (cf. Article 409 of the Civil Code). The enriched party shows bad faith when he or she becomes aware that there was no legal basis for the benefit received or that an obligation to repay the benefit arose. The mere awareness of the possibility of an obligation to repay the benefit is sufficient for the assumption of bad faith. Therefore, it seems that the buyer demonstrates bad faith if he or she had already known at the time of the conclusion of the sales contract that, in view of the stipulation of the condition, the subsequent absence of the legal basis for the performance is possible.If the buyer does not return the item (because his or her performance has become impossible), he or she cannot claim the consideration. Therefore, an accidental loss of an item by the buyer prevents him or her from demanding the repayment of the price. In this situation, the risk of accidental events is borne by the buyer.The dispositive nature of the norms established by the CISG with respect to the issue of the risk of accidental loss of or damage to goods means that:The stipulation of a condition in a contract for the international sale of goods makes the occurrence or cessation of the legal effects of the concluded contract contingent on a future and uncertain event, including the effects of the transfer of the risk of accidental loss of or damage to the goods. The mere stipulation of a condition by the parties in the contract affects the distribution of the risk in question, but does not exclude the possibility of to conclude separate agreement in this regard. Pursuant to Article 6 of the CISG, the parties may therefore either distribute the risk over time (by identifying the time of the transfer of the risk) or divide the risk between them in terms of the extent of the negative consequences borne by each party.

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