寄送买卖的风险转移与损害赔偿——基于比较法的研究视角

Risk Transfer and Compensation for Damages in Sale Involving Dispatch:From the Perspective of Comparative Law

寄送买卖是国内和国际贸易常见的一种交易形式,其本质特点在于出卖人仅负责安排运输发送货物,而不承担运输货物的义务。出卖人将货物移交给承运人,并非完成买卖合同的交付义务,所有权未发生转移,但价金风险发生转移。出卖人虽不负担运输义务,但如果未尽到合理安排运输以及其他注意和保护等附随义务,应承担损害赔偿责任,且价金风险不转移。寄送买卖中独立的承运人并非出卖人的债务履行辅助人,出卖人无须为承运人的过错负责。如果货物发生毁损灭失,在符合适当构成要件时,买受人可主张侵害货物所有权的损害赔偿请求权或违反运输合同的违约责任请求权。

Sale involving dispatch （Versendungskauf） is a common trading form for both domestic and international trade. The intrinsic characteristic is that the seller is only responsible for arranging the transport of goods instead of delivering the goods himself. The handing over of the goods from the seller to the carrier does not mean the delivery is completed or the ownership of the goods is transferred. However, the risk of price is transferred. Although the seller is not obligated for the transportation of the goods, if he fails to arrange the transportation properly or carry out the duty of caution, protection and other subordinate obligations, he should be liable for the damages and the risk of price is not transferred. In sale involving dispatch, the independent carrier is not assistant performer of obligation, nor is the seller responsible for the actual carrier＇ s mistakes. If there are damages or losses, the buyer can claim the compensation for the damage of ownership of goods or claim the liability for breach of transportation contract, as long as appropriate requirements are met.