When parties enter into a contract, they aim to define their respective rights and obligations. Generally, a contract consists of an offer, an acceptance, and consideration. If these elements are present, a legally binding agreement is formed.
One of the essential aspects of a contract is the allocation of risk. Risk allocation is the process of assigning liability for loss or damage that may occur during the performance of the contract. The general rule of thumb is that the party that assumes the risk is responsible for bearing the financial consequences of the risk event.
In most cases, contracts contain clauses that assign risk explicitly. However, when there is no explicit clause in the contract, the risk of loss passes to the buyer. This is known as the doctrine of caveat emptor, which means “let the buyer beware.”
Under the doctrine of caveat emptor, the buyer has affirmative obligations to inspect the goods carefully before making the purchase. The buyer must examine the goods and identify any deficiencies or damages. If the buyer fails to inspect the goods and discovers after the sale that there were defects, he/she may not be able to recover from the seller.
Moreover, when the risk of loss passes to the buyer, it means that the seller is not responsible for any damages that may occur during the transference of custody. For instance, if the goods are damaged or destroyed during transportation, the buyer bears the risk.
However, there are exceptions to the doctrine of caveat emptor. For example, if the seller knew of the defects but failed to disclose them to the buyer, the seller may be liable for damages. Similarly, if the seller made fraudulent representations about the goods’ quality, the buyer could seek remedies for breach of contract.
In conclusion, when there is no agreement on risk allocation in a contract, the risk of loss passes to the buyer under the doctrine of caveat emptor. It is essential to be aware of this legal principle and inspect the goods carefully before making any purchases. This way, buyers can avoid the financial consequences of risks that they bear.
