Comparative and Economic Analysis of Risk Transfer Point in General Property

Alijani, Mohsen; Saatchi, Ali; Mohammagnia, Omid; Ghorbani, Ghasem

doi:10.48308/eclr.2025.237121.1090

Comparative and Economic Analysis of Risk Transfer Point in General Property

Document Type : Original Article

Authors

mohsen alijani ¹

Ali Saatchi ²

omid mohammagnia ³

ghasem ghorbani ⁴

¹ Assistant Prof of Faculty of Law and Political Science , shahid chamran university of ahvaz, Ahvaz, Iran

² Assistant Professor, Faculty of Law and Political Sciences, Ferdowsi University of Mashhad.

³ rafsanjan

⁴ ghorbani

https://doi.org/10.48308/eclr.2025.237121.1090

Abstract

This research is about comparative and economic analysis of risk transfer point in general property sale. Authors sought to answer this question: “what is the time of risk transfer point in general property sale”? This question is addressed through examination of the Vienna Convention, Iranian and English legal systems. Studying these three legal systems shows that the risk is a material and objective concept; meaning that in each of these three legal systems, the criterion of risk transfer in general property is the time during which the goods are in possession. Therefore, in legal systems, including Iranian law, based on a defensible belief (despite contrary opinions), the transfer of ownership of general property is effected as soon as the parties agree; the point at which risk transfers is not necessarily linked to a material event (delivery, possession, or other deliverable conditions). Because the party who possess the property is naturally responsible for risk, or at least has more suitable condition than the other party. In English law as well, the analysis of risk transfer point in general property, distinguishes between abstract and external realm. However the main issue is the required criterion to assess the time and point that is often determined in accordance with the circumstances of the contract or its customary practice, which is clearly addressed in Vienna Convention in some cases. From the economic analysis perspective, avoidance of moral risk, resulted by the information superiority of the seller, necessitate transfer of risk at the point of delivery to the customer, in such a way that the he is capable of various forms of disposal. In other hand, it is concluded that according to the logic of economic analysis, the seller’s position in a sale of a general property is more suitable for insuring the subject matter than the buyer

Keywords

Transfer point

general property

delivery

transfer of ownership

economic analysis

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