[QUOTE=bnorth;1947447]For me the only way the seller does not assume the loss is if the buyer requests it sent a cheaper way like in a PWE.
Jay I send payment TTM most of the time. If my payment doesn't show up would you still send me the cards even though my payment didn't show up?
I am sure we all agree Brian is a good guy.
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I completely disagree that the seller assumes the loss and must provide a refund. Take a look at the Uniform Commercial Code.
UCC 2-509, entitled “Risk of Loss in the Absence of Breach” provides, in pertinent part:
(1) Where the contract requires or authorizes the seller to ship the goods by carrier
(a) if it does not require him to deliver them at a particular destination, the risk of loss passes to the buyer when the goods are duly delivered to the carrier even though the shipment is under reservation (Section 2-505); but
(b) if it does require him to deliver them at a particular destination and the goods are duly tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are duly so tendered as to enable the buyer to take delivery.
The Official Commentary confirms that the scope of this section is expressly limited to scenarios where there has been no breach by the seller. In the alternative, if the delivery fails to comply with the contract specifications, UCC 2-509 does not apply and the situation is governed by the provisions on effect of breach on risk of loss. Accordingly, the analysis offered herein is limited to those situations where no breach has occurred.
A cursory reading of the provision confirms that if the seller is required to ship the goods by carrier, but not required to deliver the goods at a particular destination, the risk of loss passes to the buyer when the seller duly tenders them to the carrier. § 2-509(1)(a). To the contrary, when the seller is required to deliver the goods to a particular destination, the seller bears the risk of loss until tender of delivery at the destination. § 2-509(1)(b).