Until the item is delivered to the buyer, the seller bears the risk of accidental destruction or damage to the item. Once the item is delivered, this risk transfers to the buyer, unless the buyer has withdrawn from the contract due to a defect in the delivered item or has requested a replacement.209 If the item was not delivered due to the buyer’s delay, the risk transfers to the buyer at the moment they fall into default.210
Example: Janez orders a unique ring for Mojca, which the jeweller completes by February 1, 2013. Janez does not collect the ring by February 10, 2013, when the jewellery store is robbed.
When the subject of the contract consists of items determined by type, the risk transfers to the buyer in default if the seller has set aside the items that were clearly intended for delivery and has informed the buyer accordingly.211
Example: Dairy company L, based on an agreement, prepares 10,000 litres of milk for company T. Company T does not collect the milk within the agreed time. A flood occurs at the dairy, destroying the milk prepared for company T.
However, if the items determined by type are of such a nature that the seller cannot physically separate a specific portion, it is sufficient if the seller has done everything necessary for the buyer to take possession and has informed them accordingly.212
Example: A miller prepares flour for a baker. The baker fails to collect it as agreed, so the miller separates the flour from other batches and reminds the baker to pick it up. The next day, a flood destroys the flour.
