Shipping risk almost never borne by consumer

As a merchant you do your best to package and protect an order as well as possible before it is shipped. After all, a delivery that arrives at the consumer with damage is very annoying. Yet it can happen that the order is delivered to the consumer with damage, that a package gets lost during shipment or that a package is not received for whatever reason. So who can be held responsible for this?

As a rule, the consumer is never responsible for the shipment. As a merchant you have the responsibility that the package arrives at the consumer in good condition. If the order gets damaged or lost along the way, the merchant has to offer a solution to the consumer. Perhaps the merchant can later recover the damage from the carrier, but this has nothing to do with the consumer. Therefore, the consumer should not notice anything about any dispute between the merchant and the delivery company.

Legal basis risk shipping

The legal basis for this lies in the Civil Code, and that is in Book 7, Article 11. In this article we read the following: Article 11

• 1. In a consumer purchase where the item is delivered to the buyer, the item is at the buyer's risk from the moment the buyer or a third party designated by him, who is not the carrier, has received the item.
• 2. In case the buyer designates a carrier and the choice of this carrier is not offered by the seller, the risk shall pass to the buyer at the time of receipt of the item by the carrier.

As the seller, you are basically always responsible for the shipment. You may not shift this responsibility to the customer by, for example, stating in the general terms and conditions that the risk of any damage during shipment is at the customer's risk.

Exception

The only exception mentioned by the law is when the consumer explicitly requests a method of transportation that is not offered by default. This exception does NOT apply when you yourself offer various shipping methods by default. Offering a cheap shipping method and a (more expensive) insured shipment does not shift the risk of shipping to the customer. With every shipping method you offer, the risk lies with yourself, the web store. If the risk of uninsured shipment or mailbox shipment is too high, you can choose not to offer these shipping options by default. Only if you do not offer standard shipping by envelope and the customer explicitly asks for it (e.g. to save costs), then you can tell the customer that this is possible, but at your own risk. In summary:

• May you NOT shift the risk for possible damage during shipping to the customer by means of a statement in the terms and conditions.
• Is the risk for shipping still at your risk when a customer himself chooses uninsured shipping.
• Only when the customer explicitly asks for a different shipping method than is offered by default is the risk shift possible. Be sure to indicate this explicitly to avoid discussions when things do go wrong.

Most common situations

At ValuedShops we regularly receive questions about this topic. The most common situations are listed below.

1. Delivery to the neighbors

What if the customer is not at home and the deliveryman leaves the package with the neighbors? Have you fulfilled your responsibility? Article 11 paragraph 1 refers to "the buyer or a third party designated by him". If the buyer has not expressly indicated that the package should be delivered to the neighbor, you are still responsible for the delivery. If the neighbor decides to keep the package himself or put it on marketplace, this is at your risk. With delivery to the neighbor, you depend on the reliability of the neighbor. This is because you have to prove that the product was received by the customer. Delivery to the neighbor is not without risk.

2. Presumption of damage after delivery

What if you have the idea that the damage was not caused by the deliveryman, but that the damage occurred after delivery. In principle, such damage after delivery is at the consumer's risk, but you as a seller must prove that the damage was caused by the consumer. In practice, this is often very difficult. It is very difficult to prove that a scratch occurred after delivery. Provisions in your general conditions that damage must be reported within x-number of hours after delivery do not hold. Often you as a merchant will lose out in such situations.

3. Sales to businesses

This concerns sales to consumers, for sales to businesses you can use different conditions. However, this must be clearly formulated and explicitly explained in your terms and conditions and on your customer service pages.

4. Damage upon return

Does a customer decide to use his right of withdrawal? Then the product must be returned. In that case, this return is at the customer's risk. If the product is lost or damaged during return shipment, this is at the customer's risk. In short, the risk of shipment is always at the risk of the sender. Also read more information about damages caused by the consumer. Even if you yourself offer a free return option by, for example, providing a free return label, this does not mean that you are responsible for the return. See for example the ruling in the case "Risk return by web store offered shipping method" by DigiDispuut.

The risk is for the sender

In principle, the risk of shipment is always at the risk of the sender. However, we would like to hear from you how you have experienced problems with damaged shipments? And how did you handle it? Please let us know.