Do I need to reimburse when a risk happened?

Ms. T and I wrote a purchase paper, according to which I sold all of the watermelons in my field for VND 5,000,000. Mrs. T gave all the money to me and made an appointment that two days later, she will send a person to harvest all watermelons. But that night, there was a flood, so all watermelons were damaged. Mrs. T came to my house to ask for a refund of 5 million VND. Do I have to reimburse the amount received from Mrs. T?

FDVN’s Opinion

Thank you for sending your question to FDVN Law firm. For your question, we have some discussion as follow:

Pursuant to Article 430 The Civil Code 2015 stipulated about the Sale contract of property: “Sale contract means an agreement between parties whereby a seller is obligated to transfer the ownership rights of property to the purchaser and the purchaser is obligated to make a payment to the seller.”

With the information you provided, all watermelons were bought by Mrs. T, also, Mrs.T made a payment and committed to send a person to harvest as well as take it away. However, because of the flood, all watermelons were damaged, It could not be harvested, Mrs. T asked for a refund.

According to Clause 1 Article 441 of the Civil Code 2015 regulated Transfer of risks: “The seller shall bear all risks of the property until the property is delivered to the purchaser, the purchaser shall bear all risks of the property from the time of acceptance of the property, unless otherwise agreed or prescribed by law.”

Accordingly, you are the person who responded to all risks of the property until it transferred.

Besides, Article 62 of the 2005 Commercial Law stipulates the time of transferring ownership of goods as follows:

“Unless otherwise provided for by law or agreed upon by the parties, ownership of goods shall be passed from the seller to the purchaser as from the time of handover of the goods.”

Because there is no agreement between you and Mrs. T so the ownership of watermelons has not yet transferred to Mrs. T. You are the owner and bear all risks of the watermelons.

Base on point b, Clause 1 Article 294 of the 2005 Commercial Law stipulates when a force majeure event occurs that is a case of exemption from liability. Pursuant to Article 156 of the Civil Code 2015: “An event of force majeure is an event which occurs in an objective manner which is not able to be foreseen and which is not able to be remedied by all possible necessary and admissible measures being taken.”

A force majeure event hereby by the flood. However, It cannot take into account when you can be able to be foreseen and which be able to be remedied by all possible necessary and admissible measures being taken when you can monitor weather information, if there is a flood, you must notify the buyer so that you can harvest early, which means you must apply measures within your power to limit the damage. If there are not enough of the above conditions. The flood t is not considered a force majeure event.

Therefore, Mrs.T has the right to ask for a refund. You can make an agreement on a reduction of the amount because the damage caused by flood, unintended by you.

This is FDVN’s opinion related to your request. Hopefully, this opinion will be helpful for you.

Nguyen Thi Lan Anh

FDVN Law Firm

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