UCC § 2-509
Risk of Loss in the Absence of Breach
(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 there duly tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are there duly so tendered as to enable the buyer to take delivery. (2) Where the goods are held by a bailee to be delivered without being moved, the risk of loss passes to the buyer (a) on his receipt of possession or control of a negotiable document of title covering the goods; or (b) on acknowledgment by the bailee of the buyer’s right to possession of the goods; or (c) after his receipt of possession or control of a non-negotiable document of title or other direction to deliver in a record, as provided in subsection (4)(b) of Section 2-503. (3) In any case not within subsection (1) or (2), the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise the risk passes to the buyer on tender of delivery. (4) The provisions of this section are subject to contrary agreement of the parties and to the provisions of this Article on sale on approval (Section 2-327) and on effect of breach on risk of loss (Section 2-510).
Professor's notes
Section 2-509 allocates risk of loss between buyer and seller when goods are damaged or destroyed but neither party is in breach. The rules depend on how delivery is structured. Where a carrier is involved, risk passes to the buyer when the seller duly delivers to the carrier (shipment contract) or when the goods are tendered at destination (destination contract). Where a bailee holds identified goods without movement, risk passes when the buyer receives a negotiable document or the bailee acknowledges the buyer's right. In all other cases, risk passes on the buyer's receipt of the goods if the seller is a merchant, or on tender of delivery if the seller is not a merchant.
The doctrinal move is to separate "who bears the loss" from "who has title," a deliberate UCC departure from the prior title-based approach. The R2d has no direct parallel — risk of loss is primarily a goods-contract concept. The merchant/non-merchant distinction in the residual rule reflects the commercial reality that a merchant seller in possession has better ability to insure and monitor the goods.
Paradigm for a shipment contract: A (seller in New York) ships widgets to B (buyer in California) "F.O.B. New York." The goods are damaged in transit. Risk passed to B when A delivered to the carrier in New York, so B bears the loss and must pay the contract price. Paradigm for a destination contract: the same transaction but "F.O.B. California." Risk does not pass until the carrier tenders delivery in California; A bears the transit loss.
Students conflate risk of loss with title and with breach. Push back with two separate questions: (1) is anyone in breach? If yes, § 2-510 (risk of loss in the case of breach) applies, not § 2-509. (2) If no breach, when did risk pass under § 2-509's rules? Walk through the carrier / bailee / residual hierarchy.
Connect to UCC § 2-510 (risk where there is breach), UCC § 2-601 (buyer's right to reject nonconforming goods), R2d § 263 (destruction of specific thing necessary for performance — the common law analogue), and the Chapter 20 substantial-performance materials. Section 2-509 belongs in Chapter 20 because risk of loss intersects with who must perform after a casualty event.
Text
UCC § 2-509. Risk of Loss in the Absence of Breach.
(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 there duly tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are there duly so tendered as to enable the buyer to take delivery.
(2) Where the goods are held by a bailee to be delivered without being moved, the risk of loss passes to the buyer
(a) on his receipt of possession or control of a negotiable document of title covering the goods; or
(b) on acknowledgment by the bailee of the buyer’s right to possession of the goods; or
(c) after his receipt of possession or control of a non-negotiable document of title or other direction to deliver in a record, as provided in subsection (4)(b) of Section 2-503.
(3) In any case not within subsection (1) or (2), the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise the risk passes to the buyer on tender of delivery.
(4) The provisions of this section are subject to contrary agreement of the parties and to the provisions of this Article on sale on approval (Section 2-327) and on effect of breach on risk of loss (Section 2-510).
Source: UCC Article 2 (post-2022 amendments), as in the LawJ statutory corpus.