Legal Definition of Risk, Risk Of Loss
Possibility that an investment's actual return will be different than expected; includes the possibility of losing some or all of the original investment.4 min read
What Is a Risk?
Possibility that an investment's actual return will be different than expected; includes the possibility of losing some or all of the original investment. Measured by variability of historical returns or dispersion of historical returns around their average return.
A danger, a peril to which a thing is exposed. The subject will be divided by considering, 1. Risks with regard to insurances. 2. Risks in the contracts of sale, barter, etc.
How Does Risk Apply to Contract of Insurance?
In the contract of insurance, the insurer takes upon him the risks to which the subject of the insurance is exposed, and agrees to indemnify the insured when a loss occurs. This is equally the case in marine and terrestrial insurance. But as the rules which govern these several contracts are not the same, the subject of marine risks will be considered, and, afterwards, of terrestrial risks.
What Are Marine Risks?
Marine risks are perils which are incident to a sea voyage or those fortuitous events which may happen in the course of the voyage. It will be proper to consider, 1. Their nature. 2. Their duration.
A Closer Look at Risks
The nature of the risks usually insured against. These risks may be occasioned by storms, shipwreck, jetsom, prize, pillage, fire, war, reprisals, detention by foreign governments, contribution to losses experienced for the common benefit, or for expenses which would not have taken place if it had not been for such events. But the insurer may by special contract limit his responsibility for these risks. He may insure against all risks, or only against enumerated risks; for the benefit of particular persons, or for whom it may concern. The law itself has made some exceptions founded on public policy, which require that in certain cases men shall not be permitted to protect themselves against some particular perils by insurance; among these are, first, that no man can insure any loss or damage proceeding directly from his own fault.
Secondly, nor can be insure risks or perils of the sea, upon a trade forbidden by the laws. Thirdly, the risks excluded by the usual memorandum contained in the policy. As the insurance is upon maritime risks, the accidents must have happened on the sea, unless the agreement include other risks. The loss by accidents which might happen on land in the course of the voyage, even when the unloading may have been authorized by the policy, or is required by local regulations, as where they are necessary for sanitary measures, is not borne by the insurer.
Duration of Risks
As to the duration of the risk. The commencement and end of the risk depend upon the words of the policy. The insurer may take and modify what risks he pleases. The policy may be on a voyage out, or a voyage in, or it may be for part of the route, or for a limited time, or from port to port.
Risks In Insurances Against Fire
In insurances against fire, the risks and losses insured against, are all losses or damages by fire; but, as in cases of marine insurances, this may be limited as to the things insured, or as to the cause or occasion of the accident, and many policies exclude fires caused by a mob or the enemies of the commonwealth. The duration of the policy is limited by its own provisions.
Risks In Insurance On Lives
In insurances on lives, the risks are the death of the party from whatever cause, but in general the following risks are excepted, namely:
1. Death abroad or in a district excluded by the terms of the policy.
2. Entering into the naval or military service without the consent of the insurer.
3. Death by suicide.
4. Death by duelling.
5. Death by the hands of justice. See Insurance on lives.
The duration of the risks is limited by the terms of the policy. As a general rule, whenever the sale has been completed; the risk of loss of the things sold is upon the buyer; but until it is complete, and while something remains to be done by either party, in relation to it, the risk is on the seller; as, if the goods are to be weighed or measured.
Risks In Sales
In sales, the risks to which property is exposed and the loss which may occur, before the contract is fully complete, must be borne by him in whom the title resides: when the bargain, therefore, is made and rendered binding by giving earnest, or by part payment, or part delivery, or by a compliance with the requisitions of the statute of frauds, the property, and with it the risk, attaches to the purchaser.
In Louisiana, as soon as the contract of sale is completed, the thing sold is at the risk of the buyer, but with the following modifications: Until the thing sold is delivered to the buyer, the seller is obliged to guard it as a faithful administrator, and if through his want of care, the thing is destroyed, or its value diminished, the seller is responsible for the loss. He is released from this degree of care, when the buyer delays obtaining the possession: but he is still liable for any injury which the thing sold may sustain through gross neglect on his part.
If it is the seller who delays to de-liver the thing, and it be destroyed, even by a fortuitous event, it is be who sustains the loss, unless it appears that the fortuitous event would equally have occasioned the destruction of the thing in the buyer's possession, after delivery.
RISK OF LOSS
In a sales transaction (esp. real estate) many states consider the buyer to be the owner of the land once the sales contract is signed, and the "owner" just to be "babysitting". Therefore, in some states, the "risk of loss" in case of destruction of the property is passed to the buyer, even though they have not paid for the property.