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Gefahrübergang und Eigentumsübergang
In brief
Passing of risk is the point in time from which, in a sale, the risk of accidental loss or damage to the goods passes from the seller to the buyer. Transfer of ownership must be distinguished from it: it determines from when the buyer is legally the owner. When selling decommissioned IT hardware, both points in time determine who bears the risk in the event of loss or damage during transport.
Passing of risk and transfer of ownership under the BGB
| Term | Basic rule | Typical deviation |
|---|---|---|
| Passing of risk | Upon handover of the item (§ 446 BGB) | In a sale involving shipment, already upon handover to the carrier (§ 447 BGB); contractual deviations are possible |
| Transfer of ownership | By agreement and handover (§ 929 BGB) | Retention of title until full payment (§ 449 BGB) |
Between companies, both points are usually governed by general terms and conditions or the contract. Read these clauses carefully before a sale. This entry does not replace legal advice.
Significance when selling decommissioned IT
When the risk passes determines who must bear a loss during transport and which Transport insurance applies. For data protection, the question must be considered separately: as long as data is on the devices, you remain responsible for protecting it. Complete Chain of custody with an acceptance record documents when which devices were handed over.
Second IT's general terms and conditions (as of December 8, 2021) provide for buyback: passing of risk occurs upon goods receipt on the premises or, for sealed pickups by Second IT, when the vehicle is sealed at the pickup location. Ownership passes by agreement and handover. What to look out for overall when choosing a service provider is shown by the guide Choosing an ITAD provider.
Frequently asked questions about passing of risk
What is the difference between passing of risk and transfer of ownership?
Passing of risk governs who bears the risk of loss or damage. Transfer of ownership governs to whom the item legally belongs. The two points in time can differ.
When does the risk pass in shipping?
In a sale involving shipment between companies, generally upon handover to the carrier under § 447 BGB. Contracts and general terms and conditions can provide otherwise.
Does passing of risk change anything about my data protection obligation?
No. Under data protection law you remain responsible until the data has been demonstrably erased or destroyed. The contract with the service provider and the proof per device ensure this.
Who bears the risk if devices are lost during transport?
That depends on the passing of risk. From that point on, the buyer bears the risk of loss or damage. Between companies this is usually governed by the general terms and conditions or the contract. The point in time also decides which transport insurance applies.
What does retention of title mean when selling IT hardware?
With retention of title, the seller remains the owner of the goods until full payment. The risk of loss or damage may nevertheless already lie with the buyer. Passing of risk and transfer of ownership are separate points in time.
Clear rules from the pickup location to the erasure certificate.
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