国际商法英文版：5 Chapter 10 Sales.ppt

单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,*,CHAPTER 10,SALES,10-1,Topics for this chapter,:,UN Convention on Contracts for the International Sale of Goods(CISG),Transactions Covered in CISG,Contractual Issues Excluded from Coverage of CISG,Interpreting CISG,Interpreting Sales Contracts,Formation of the Contract,General Standards for Performance,Sellers Obligations,The Passing of Risk,Remedies,Excuses for Nonperformance,10-2,Contract,One party makes an offer that another accepts.,1.Offer(,要约）,2.Acceptance,（接受）,3.Consideration(in the USA),（对价）,Consideration consists of a bargained for exchange(USA)or legal detriment and a bargain.,A legal detriment is a promise to do something or refrain from doing something.,A bargain is something the promisor wants.,10-3,UN Convention on Contracts for the International Sale of Goods,The CISG,adopted in 1980,incorporates rules from all the major legal systems.,It provides accepted substantive rules on which contracting parties,courts,and arbitrators may rely.,It has been,ratified,by 79 countries,but has not been ratified by India and UK.,10-3,Transactions Covered in CISG,CISG applies to contracts for international sale of goods.,The buyer and seller must have their place of business in different states.Either:,Both of the states must be contracting parties to the convention,or,The rules of private international law must lead to the application of the law of a contracting state.,A ratifying state may declare that it will apply CISG only when the buyer and seller are both from contracting states.,10-4,Opting In and Out,Parties to a contract may exclude or modify CISGs application by a choice-of-law clause.,A,choice-of-law clause,is a contractual provision that identifies the law to be applied in the event of a dispute over the terms or the performance of the contract.,10-5,Case 10-1:Asante Technologies,Inc.v.PMC-Sierra,Inc.,Issue:Does the U.S.federal court have jurisdiction and does CISG apply to this contract?,The court determined the parties were from different states and CISG applies to contracts between such parties.,The parties did not opt out of the CISG and it was the controlling law.,10-6,Sales Defined,A,sale,is the exchange of goods for an amount of money or its equivalent.,The CISG does not define sales,but various sections present the same definition as many domestic laws,such as the U.S.UCC,which defines a sale as the“,passing of title from the seller to the buyer for a price,.”,10-7,The goods processed through the Port of Vancouver,B.C.are likely being shipped under contracts controlled by the CISG.,Goods Defined,A,good,is a moveable,tangible object.For the purposes of the CISG,goods do not include things bought for personal use or at an auction or foreclosure sale,nor may they be ocean-going vessels or aircrafts.,10-8,These candles may or may not be a good under CISG depending upon whether they are sold to individual consumers or sold in bulk to a retailer for resale.,Mixed Sales,Seller of goods often furnishes services when delivering a product.,CISG looks upon,mixed,sales,and service contracts as sales of goods,unless the,preponderant part,of the obligation”of the seller“consists in the supply of labor or other services.”,10-9,Contractual Issues Excluded From the Coverage of CISG,CISG only deals with:,The formation of the contract,and,The remedies available to the buyer and seller.,CISG excludes questions about:,the,legality,of the contract,the,competency,of the parties,the rights of third parties,liability for death or personal injury,10-10,Preemption,If CISG applies to a particular contractual issue,domestic law is,preempted,.Remedies provided in CISG are the only remedies available.,Preemption helps to fulfill the goal of the convention to establish uniform rules for international sales contracts.,10-11,The only permissible remedy for a defective saw is the one provided by CISG when there is an international sale.,Interpreting CISG,To interpret CISG,a court is to consider:,the international character of the convention,the need to promote uniformity in the conventions application,and,the observance of good faith.,The CISG implies that a court may only use the,plain meaning,of the language of the convention.,Courts may also look(the travaux preparatories,),legislative history,to determine intent.,10-12,Interpreting CISG:General Principles,CISG calls for courts to look to the,general principles,on which the convention is based when interpreting its provisions.,Two of the suggested principles are:,A party to a contract has the duty to,communicate,information needed by the other party,and,Parties have the obligation to,mitigate,damages resulting from a breach.,（减损义务）,10-13,Interpreting Sales Contracts,A contract is said to be formed only when the parties have a,meeting of the minds,.,（意思表示一致）,This,subjective intent approach,says that contracts should be interpreted according to the actual intent and understanding of the parties at the time they made their agreement.,CISG says courts are to use subjective intent only if the other party knew or could not have been unaware of the speakers intent.,If intent is unclear,courts use,objective intent,.,10-14,Negotiations,When a court is to determine intent,CISG directs that due consideration be given to all relevant circumstances,including:,the negotiations leading up to the contract,the practices that the parties have established between themselves,and,the parties conduct after they agree to the contract.,CISG,does not apply the technical rules,that domestic courts use to interpret contracts,such as the,parole evidence rule,.,10-15,Practices and Usages,Parties are bound by any,practices,（,习惯做法,）,which they have established between themselves.,A court is allowed to consider any usages,that the parties agreed to.A,usage,（,惯例,）,is the customary method of performing or acting that is followed by a particular group of people,such as people within a particular trade.,CISG lets a court consider“a usage of which the parties knew or ought to have known which in international trade is widely known to,and regularly observed by parties to contracts of the type involved in the particular trade concerned.”,10-16,Case 10-2:Treibacher Industrie,A.G.v.Allegheny Technologies,Inc.,Defendant TDY entered into consignment contracts with Treibacher,then refused shipment when it found a cheaper supplier.,Court had to interpret,under the CISG,the word,consignment,.Issue turned on whether that word should be interpreted according to its meaning based on the“course of dealings”or“customary usage in trade.”Court applied course of dealings and awarded$5,327,042.,10-17,Form,The CISG states that a contract for sale need not be concluded in or evidenced by writing and is not subject to any other requirements as to form.It may be proved by any means,including witnesses.,However,CISG authorizes a contracting state whose legislation requires contracts of sale to be concluded in or evidenced by writing to make a declaration at the time of ratification the CISG provision does not apply where any party has his or her place of business in that state.,10-18,Formation of the Contract:The Offer,A,contract,is formed when an offer to buy or sell a good is accepted.,An,offer,is a proposal by one person to another indicating an intention to enter into a contract under specific terms.,To be a,valid offer,:,the offeror must communicate an intention to be bound.,A,proposal,is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and price.,10-19,Effectiveness of an Offer,Effective Date:,An offer becomes effective only after it reaches the offeree,a specific person addressed in the offer.,Withdraw&Revoke of Offer,Offers can be withdrawn before they reach the offeree.,Offers can be,revoked,any time before the offeree dispatches an acceptance.,10-20,Effectiveness of an Offer,Irrevocable offer,if,offer indicates,whether by stating a fixed time for acceptance,or otherwise,that it is irrevocable;or,if,it was reasonable for the offeree to rely on the offer as,being irrevocable,and the offeree has acted in reliance on the offer.,10-20,Acceptance,Concept of Acceptance:,An,acceptance,is a statement of conduct by the offeree indicating assent that is communicated to the offeror.,Effect of Acceptance:,A contract comes into existence at the time the offer is accepted.,Form of Acceptance,Silence does not constitute acceptance,except agreed otherwise.,Notice,Specific action,10-21,Acceptance,Effective time of an acceptance,Acceptance is effective when,received,by offeror.,Acceptance must be received within the time period specified in the offer.If no time period is given,acceptance must be received within a reasonable time.,The time when specified act is performed.,If the offeror asks for performance of an act rather than the indication of acceptance,the acceptance is effective when the act is performed.,10-21,Case 10-3:United Technologies International,Inc.v.Magyar Legi Kozlekedesi Vallalat,Plaintiff offered to sell aircraft engines to defendant at specified prices in a quantity to be selected by the defendant depending upon how many planes they purchased.,Defendants sent acceptance.,Term requiring government approval was not a condition precedent.An enforceable contract was formed.,10-22,Acceptance,Withdrawal of an acceptance,An offeree may,withdraw,his/her acceptance any time before or simultaneous with its receipt.,Rejection,rejection,becomes effective when it reaches the offeror.If the offeree sends both an acceptance and a rejection,the one that reached the offeror first would be given effect.,10-23,Acceptance,Acceptance With,Material,Modifications,If the acceptance modifies some of the terms of the offer,there is a,counteroffer,instead of an acceptance if these inconsistencies are,“material.”,Material:,Under the CISG,additional terms or different terms relating,among other things,to the price,payment,quality of the goods,place,and time of delivery,extent of one partys liability to the other,or the settlement of disputes are considered to alter the terms of the offer,materially,.,10-24,Acceptance,Acceptance With Non-,Material,Modifications,A reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance,unless,the offeror,without undue delay,objects orally to the discrepancy or dispatches a notice to that effect.,If he does not so object,the terms of the contract are the terms of the offer with the modifications contained in the acceptance.,10-24,Case 10-4:Filanto,SPA v.Chilewich International Corp.,Chilewich was supplying boots to a Russian company that were being made by Filanto.,Chilewich made reference to an arbitration clause in the Russian Contract with Chilewich.,Filanto failed to object to the,incorporation by reference,of the Russian Contract in a timely fashion.The arbitration clause become part of the contract,requiring arbitration in Moscow.,10-25,Sellers Obligations,A sellers Obligation:,deliver the goods,hand over any documents relating to them,ensure that the goods conform to the contract.,Issues in Delivery of Goods,Time,and Place of delivery and hand over of documents,Conformity of goods,Guarantees of ownership&free from any third party claim,Examination of goods,Curing the defect by Seller,10-28,Place for Delivery andTurning Over Documents,1.Place of Delivery,The place for delivery is the place agreed to in the contract.Otherwise,it is,（,Article 31):,the first carriers place of business,or,the place where the parties knew the goods were located or were to be manufactured.,10-29,Time for Delivery andTurning Over Documents,Time of deliverry,Seller is to,deliver,goods on the date fixed in the contract.,If no fixed date,within a reasonable time after the conclusion of the contract.,Turning over the documents,At time and place of delivery,seller must turn over any documents relating to the goods that the contract requires.,If documents are delivered early,seller has the right to,cure any defect,in the documents provided that it dose not cause buyer unreasonable inconvenience or expenses.,10-29,Conformity of Good,（货物相符）,Seller must deliver goods which are of the quantity,quality,and description required by the contract and are packaged in the manner required.,Goods do not conform unless they:,are,fit for the purpose,of which goods of the same description would ordinarily be used;,are fit for any particular purpose,expressly or impliedly,made known to the seller(with exception);,possess the,qualities,of goods which the seller has held out for the buyer as a sample or model;,are,packaged,in the same manner usual for such goods,(if no such manner)adequate to preserve and protect the goods.,Exception,At the time of conclusion,buyer knew or should knew the lack of conformity,10-30,Third-Party Claims,Waiver,Time for Examining Goods,and Curing Defects,Goods are,nonconforming,if they are subject to third-party claims such as ownership and rights in intellectual property.(Art.41,42),The parties may,waive,the conformity requirement.,Examining the goods,Buyer has an obligation to,examine the goods,for defects within as short a period as is practicable after delivery(Art.39),Buyer is obligated to,inform,the seller of any discovered defect within a reasonable time,(Maximum 2 years),.,Curing the defects,If a seller,delivers early,he or she may,cure,any defect up to the agreed upon date for delivery.(Art.37),10-31,Buyers Obligations,A buyer is required to:,(1)pay the price and,(2,)take delivery,of the goods,Time:,Unless a different,time,is specified,the buyer must pay when the goods or the documents controlling their disposition are delivered.,Place,If,place,of delivery is specified,payment is also made there.,If no place of delivery is specified,then buyer must pay at the sellers place of business.,10-32,Case 10-5The Natural Gas Case,The plaintiff,a Germany company,negotiated to buy natural gas from an Austrian partnership.The defendant was to ship the propane from the US to the plaintiff in Belgium.The plaintiff was to obtain a letter of credit once the defendant told it where the propane was to be loaded.,Issue,:Had the defendant breached the contract by failing to deliver the propane or was its duty to perform excused by the plaintiff not obtaining a letter of credit?,9-33,Case 10-5The Natural Gas Case,Held,:The buyer was excused from opening a letter of credit because the defendant never provided the necessary information for the letter.The breach was due to the sellers failure to make proper arrangements to ship the gas.,10-34,Passage of Risk(Art.66-70),Concept,The legal concept of,passage or risk,is the point in time when the buyer becomes responsible for losses to the goods.,Effect,Once the risk passes,the buyer must,pay for the goods.Even if they are damaged,or,destroyed.,Party Autonomy,CIS