Responsibility for Loading Under the EXW Delivery Term: The Problem of Confusing Physical Loading with Legal Risk
In international trade, the EXW (Ex Works) delivery term is regarded as the Incoterms rule imposing the minimum obligations on the seller. Under the Incoterms 2020 framework, the fundamental logic of EXW is that the seller makes the goods available to the buyer at its own premises, warehouse, or another named place, and from that point onward, the organization of transport and all related risks are primarily borne by the buyer. (academy.iccwbo.org)
However, in practice, the theoretical framework does not always fully align with commercial reality. In particular, in container shipments, even where the parties have agreed on EXW terms, loading operations are often in fact carried out by the seller through its own personnel, warehouse facilities, or forklift operators. It is precisely at this point that a significant portion of disputes arises.
1. The Basic Legal Framework for EXW Delivery
Under the EXW (Ex Works) delivery term, the seller’s primary obligation is to make the goods available at the agreed place in a ready-for-collection condition. Under the Incoterms system, loading, transport, freight, export formalities, and all carriage-related risks are, in principle, allocated to the buyer. As also stated by the ICC Academy, even the loading of goods onto the vehicle arranged by the buyer under EXW generally remains within the buyer’s cost and risk scope. (academy.iccwbo.org)
Within the Incoterms 2020 framework, the seller’s delivery obligation (A2) and the buyer’s obligation to take delivery (B2) under EXW are defined as follows:
“A2 Delivery
The seller must deliver the goods by placing them at the disposal of the buyer at the named place of delivery, if any, or at the seller’s premises or another agreed point, not loaded on any collecting vehicle. If no specific point has been agreed within the named place, and if there are several possible points available, the seller may choose the point that best suits its purpose. The seller must deliver the goods on the agreed date or within the agreed period.” (Erdem, H. Ercüment, International Trade Law, On İki Levha Publishing, 2020, p. 852)
“B2 Taking Delivery
The buyer must take delivery of the goods when they have been delivered in accordance with A2 and when notice has been given in accordance with A10.” (Erdem, H. Ercüment, International Trade Law, On İki Levha Publishing, 2020, p. 852)
Similarly, both case law and doctrine emphasize that EXW is based on the principle of “minimum obligation for the seller,” and that the seller fulfils its delivery obligation merely by making the goods available.
2. EXW in Court Decisions and Legal Doctrine
“(…) In this sale, the seller delivers the goods by placing them at the buyer’s disposal at its own factory, warehouse, or place of business. The seller is under no obligation to load the goods onto any transport vehicle. From the moment of delivery to the buyer, all costs and risks relating to the goods pass to the buyer. Under the EXW delivery term, the seller’s obligations are at a minimum level. (…)” (Istanbul Regional Court of Appeal, 14th Civil Chamber, Case No. 2025/935, Decision No. 2025/1008, Dated 04.06.2025)
“(…) However, the plaintiff’s counsel, in the objection dated 19.09.2007 to the expert report, stated that the invoices concerning the goods in dispute contained the remark ‘EXM’, which under the Incoterms rules issued by the International Chamber of Commerce corresponds to ‘delivery at seller’s premises’ (EXW – EX WORKS), meaning delivery at the commercial establishment; and that, unless otherwise agreed, the seller’s only obligation is to make the goods available at its premises at the buyer’s disposal (…)” (Court of Cassation, 11th Civil Chamber, Case No. 2008/2974, Decision No. 2009/7352, Dated 15.06.2009)
“(…) It is understood from the export customs declaration in the file that the delivery of the goods was agreed as FACTORY DELIVERY (EX WORKS – EXW). In such contracts, the seller’s obligations end once the goods are made ready for the buyer at its own establishment or another place belonging to it. All costs and risks relating to the transportation of the goods from the seller’s premises to the requested destination belong to the buyer, unless otherwise agreed. Since no contract proving otherwise has been submitted to the file, it has been concluded that the plaintiff cannot claim freight costs from the defendant and the case has been dismissed (…)” (Ankara 10th Commercial Court of First Instance, Case No. 2024/53, Decision No. 2025/15, Dated 13.01.2025)
“(…) In the event of a sale on EXW terms, the seller’s responsibility ends by delivering the goods to the carrier designated by the buyer. Loading, port handling costs, and the risk of loss or damage pass to the buyer. Under EXW, the importer (buyer) assumes all costs and risks, including customs clearance, shipment, and insurance, from the seller’s factory or warehouse to the final destination. (…)” (Istanbul 17th Commercial Court of First Instance, Case No. 2017/329, Decision No. 2021/38, Dated 29.01.2021)
“(…) In FCA delivery terms, the seller’s responsibility ends upon delivery of the goods to the carrier designated by the buyer at an agreed location in the seller’s country, after completing export clearance procedures, and all responsibility passes to the buyer. Under this delivery term, the seller’s obligation ends upon handing over the goods to the carrier at the agreed location; loading onto the vehicle is not the seller’s responsibility. The same principle applies in EXW terms, where the goods are collected by the buyer from the seller’s factory or place of business, and the responsibility for loading rests with the buyer. (…) (See Court of Cassation, 11th Civil Chamber, 13.09.2017, Case No. 2016/1722, Decision No. 2017/4302) (…)
(…) Although the defendant carrier and the plaintiff argued that the seller should be held liable because loading was carried out by the seller’s personnel, the CMR consignment note did not contain any provision indicating that loading was the responsibility of the consignor. According to the freight invoice and customs declaration, the delivery term was determined as EXW, and under this term, as explained above, the loading responsibility belongs to the buyer. Therefore, the personnel of the seller who physically carried out the loading are deemed assistants of performance of the buyer. (…)” (Istanbul Regional Court of Appeal, 13th Civil Chamber, Case No. 2021/513, Decision No. 2023/506, Dated 23.03.2023)
In doctrine, it is also widely accepted that EXW represents the narrowest scope of liability for the seller, and it is generally stated that loading and transport organization under EXW primarily fall within the buyer’s sphere of responsibility:
“Where the parties to a sales contract choose the EXW delivery term, certain important issues must be considered. Accordingly, if the buyer is unable to fulfill obligations related to loading the goods onto the transport vehicle or export procedures, EXW should not be used. In other words, under this term (EXW), even if the seller is in a better position to load the goods, it has no obligation towards the buyer regarding loading. If the seller nevertheless undertakes loading, it does so at the buyer’s risk and expense. In cases where the seller is in a better position to load the goods and it is intended that loading risks and costs be borne by the seller, FCA should be preferred, as it allows for loading obligations to be allocated to the seller under its own risk and expense.” (Dr. Muhammetnazar ILYASOV, Methods of Delivery in International Trade: Incoterms 2010 Rules, Seçkin Publishing, 2019, Ankara, p. 44.)
3. Why Do Sellers Actually Handle the Loading in Practice?
Although under EXW delivery terms the loading obligation theoretically falls within the buyer’s sphere of responsibility, in commercial practice loading operations are frequently carried out by the seller. The main reasons for this include:
The fact that warehouse and forklift operations are generally available on the seller’s side
The operational efficiency of loading being typically higher when performed by the seller
The need to ensure proper stowage of goods
The aim of reducing the risk of damage during transport
Providing operational convenience to the buyer in order to preserve the commercial relationship
In particular, in container shipments, sellers often physically place the goods into containers, arrange stowage, or actively assist in the sealing process through their own personnel.
However, the critical issue here is the following:
The mere fact that the seller physically carries out the loading does not, by itself, mean that the seller has legally assumed the loading risk.
4. Actual Assistance and Legal Liability Are Not the Same Thing
A frequently encountered mistake in practice is the assumption that the party physically carrying out the loading operation automatically bears all risks and liabilities arising from loading. However, the Incoterms system regulates not only the physical execution of operations but also the allocation of risk and contractual responsibility between the parties.
For this reason, under EXW delivery terms, the seller’s assistance in loading does not produce the same legal consequences as assuming full liability for all loading-related risks.
As also emphasized in doctrine and case law, the parties may, if they so wish, expressly agree that the seller will undertake the loading; however, such an arrangement must be made in a clear and unambiguous manner that leaves no room for interpretation.
In other words:
Providing a forklift by the seller
Placing goods into the container
Assisting in the stowage process
Offering operational support
do not, by themselves, alter the allocation of risk under EXW terms.
For a different legal conclusion to be reached, the parties must have explicitly agreed, on a contractual basis, that:
the loading obligation,
the risk of loss arising from loading, and
liability for improper stowage
are assumed by the seller.
5. Confusing Risk Transfer with the Operational Process
One of the most common issues in international trade disputes is the confusion between “factual control” and “legal transfer of risk.”
For example, in situations such as:
incorrect loading of goods into containers,
cargo shifting,
damage to packaging during transport,
imbalance within the container,
disputes regarding sealing or stowage,
the buyer often attempts to hold the seller liable on the basis of the argument that “the seller carried out the loading.”
However, as also emphasized in the Court of Cassation’s interpretation of Incoterms, these rules primarily govern the allocation of risk and costs between the parties to a sales contract.
Therefore, in assessing a concrete case, the following questions become crucial:
Who organized the transport?
Who selected the carrier?
Who controlled the container and shipment arrangements?
Did the parties enter into any special agreement regarding loading risk?
Does the seller’s factual assistance reflect an explicit intention to assume liability?
Without examining these elements, automatically attributing liability to the seller solely on the ground that “the seller performed the loading” may not be compatible with the underlying logic of EXW delivery terms.
6. Why Is Using FCA Instead of EXW Safer for the Buyer?
As also stated by the ICC Academy, in practice FCA (Free Carrier) is often preferred over EXW, as it may lead to safer and more balanced outcomes for the buyer. This is because under FCA, the seller’s loading obligations and the point of risk transfer are defined more clearly compared to EXW. (academy.iccwbo.org)
In particular, in transactions where:
the seller physically carries out the loading,
the seller actively participates in export procedures,
the container operation is conducted under the seller’s coordination,
FCA delivery terms may create fewer interpretative disputes compared to EXW.
7. A written contract regarding legal liability for the shipment is often never established; the relationship is conducted via email and WhatsApp.
In international trade practice, the parties often do not execute a detailed written sales contract. Instead, the commercial relationship is typically established through:
proforma invoices,
purchase orders,
quotation exchanges,
emails,
WhatsApp communications.
In many cases, the term “EXW” appears only in:
the proforma invoice,
the purchase order, or
the quotation form,
without any detailed contractual provisions regarding the legal allocation of loading responsibilities.
However, throughout the process, employees, operations managers, warehouse personnel, logistics officers, or other performance assistants often engage in detailed communications concerning:
loading,
sealing,
container inspection,
stowage,
transport organization.
These communications become highly significant in subsequent disputes, as they serve as key indicators for interpreting the true intention of the parties.
Indeed, in several decisions of the 11th Civil Chamber of the Court of Cassation, it is emphasized that in interpreting delivery terms, not only formal contractual records but also the actual intentions expressed during the commercial relationship and the parties’ conduct in practice must be taken into account. Similarly, the Court of Cassation attaches importance to commercial correspondence, emails, and the parties’ conduct in interpreting commercial agreements rather than relying solely on a single document. (See: Court of Cassation 11th Civil Chamber, Case No. 2015/4749, Decision No. 2015/11325)
8. Correspondence May Effectively Amend the Contract
In Turkish law, the interpretation of contracts is based not only on the initially signed document, but also on the subsequent conduct and declarations of intent of the parties.
Accordingly, even if the parties:
- initially agreed on EXW delivery terms, and
- even accepted that the loading risk (legal liability) lies with the seller,
they may later modify this risk allocation through their subsequent communications.
For instance, statements sent by the seller’s employees such as:
- “the loading was entirely carried out under our responsibility,”
- “the container seals were checked by us,”
- “loading security was ensured by us,”
may later be interpreted as new declarations of intent operating against the seller’s legal position.
Similarly, communications from the buyer acknowledging that:
- the loading was fully conducted under its own control,
- the drivers were operating under its own organization,
- the container seals were provided by the carrier,
may also constitute important evidence in assessing and interpreting liability allocation in dispute resolution.
9. The parties’ statements in their correspondence may be of critical importance
In practice, many company employees may use statements that can have legal consequences in order to:
facilitate operational convenience,
avoid disrupting commercial relationships,
resolve issues quickly.
However, in particular:
email correspondence,
WhatsApp messages,
written communications via corporate platforms such as Microsoft Teams, Slack, or similar systems,
operational emails related to transport organization,
logistics notifications regarding containers, seals, loading instructions, VGM, booking confirmations, and other shipment processes,
may later be used as evidence in court proceedings or arbitration.
For this reason, it is highly important for parties to:
clearly express their actual intent,
use language consistent with the legal allocation of liability if they do not intend to assume responsibility,
avoid conflating operational assistance with legal responsibility.
Otherwise, a commercial relationship initially structured under EXW terms—where loading risk is inherently allocated to the buyer—may later become subject to a different interpretation due to subsequent communications.
10. The Importance of “Only Written Amendment” Records
Some contracts include clauses such as:
“This Agreement may only be amended in writing and signed by duly authorized representatives of the parties.”
Such provisions—commonly referred to as “no oral modification” or “written amendment clauses”—may limit the ability of informal subsequent communications to modify the contract.
However, in practice, many EXW-based relationships are not governed by detailed written agreements. As a result, email and WhatsApp correspondence between the parties often becomes central in dispute resolution.
For this reason, particularly in international trade:
operations teams,
sales representatives,
warehouse personnel,
logistics staff,
should be made aware of the importance of their statements and exercise caution when making communications that may carry legal consequences.
11. Result
Under EXW delivery terms, the seller’s physical involvement in loading does not, on its own, mean that the seller assumes all risks and liabilities arising from loading. Under the Incoterms framework, what is essential is the parties’ true intention regarding the allocation of risk.
However, in practice:
lack of a written contract,
transactions conducted solely through proforma invoices or purchase orders,
uncontrolled operational correspondence,
often expose the parties to significant legal risks.
In particular:
loading,
stowage,
sealing,
container arrangements,
transport operations,
communications exchanged via email or WhatsApp may become decisive in interpreting the parties’ true intent.
For this reason, in EXW transactions it is crucial for the parties to:
clearly regulate loading responsibilities,
define risk allocation in writing,
use careful and precise language in operational communications,
ensure employee awareness regarding legal implications,
in order to minimize the risk of disputes.
Attorney Muhammed Safa Koyuncu
REFERENCES:
- iccwbo.org
- Erdem, H. Ercüment. Milletlerarası Ticaret Hukuku. On İki Levha Yayıncılık, 2020
- İstanbul B.A.M. 14. H.D. E. 2025/935, K. 2025/1008, T. 04.06.2025
- 11. H.D. E. 2008/2974, K. 2009/7352, T. 15.06.2009
- Ankara 10. Asliye Ticaret Mahkemesi E. 2024/53, K. 2025/15, T. 13.01.2025
- İstanbul 17. Asliye Ticaret Mahkemesi E. 2017/329, K. 2021/38, T. 29.01.2021
- İstanbul B.A.M. 13. H.D. E. 2021/513, K. 2023/506, T. 23.03.2023
- Muhammetnazar İLYASOV, Milletlerarası Ticarette Teslim Şekilleri: Incoterms 2010 Kuralları, Seçkin Yayınları, 2019
- 11.H.D. E. 2015/4749, K. 2015/11325