Definition of RISK


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, &c.

2. - §1. 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.

3. - 1st. Marine risks are perils which are incident to a sea voyage; 1
Marsh. Ins. 215; or those fortuitous events which may happen in the course of
the voyage. Poth. Contr. d assur. n. 49; Pardes. Dr. Com. n. 770. It will be
proper to consider, 1. Their nature. 2. Their duration.

4. - 1. 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. 2 Wash. C. C. R. 346; 1 John. Cas. 337; 2 John. Cas. 480 1 Pet.
151 2 Mass.,365; 8 Mass. 308. 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. 1 John. Cas. 337; Poth. h. t. n. 65; Pard. h. t.
n. 771; Marsh. Ins. 215. 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 (q. v.) contained in the policy. Marsh. Ins. 221.

5. 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. Pard. Dr. Com. n. 770.

6. - 2. 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. See 3
Kent, Com. 254; Pard. Dr. Com. n. 775; Marsh. 246; 1 Binn. 592. The duration of
the risk on goods is considered in Marsh. Ins. 247 a; on ships, p. 280; on
freight, p. 278, and 12 Wheat. 383.

7. - 2d. 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 thepolicy is Iimited by its
own provisions.

8. - 3d. 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.

9. - §2. 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. See Sale.

10. 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. 2 Kent, Com. 392.

11. 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
de-stroyed, 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
sus-tain 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. Art. 2442-2445. For the rules of the civil law on this subject,
see Inst. 2, 1, 41; Poth. Contr. de Vente, 4eme partie, n. 308, et seq.

Source: Bouviers Law Dictionary 1856 Edition