合同法2CISG - jade

1、Exercises: 1. What are the definition and requirement of an offer? 2. What are the definition and requirement of an acceptance? 3. State the rules of consideration. 4. According to common law, what are the circumstances that made specific performance not available?Chapter Five Law of International S

2、ale of Goods國際貨物買賣法 I. Introduction to CISG II. Formation of Contract for International Sale of Goods III. Obligations of the Seller and Buyer IV . Remedies for Breach of Contract V. Passing of RiskI. Introduction to CISG 1.What is CISG? CISG: the United Nations Convention on Contracts for the Inter

3、national Sale of Goods聯(lián)合國國際貨物銷售合同公約 History of CISG - drafted by? - When and where did it open for signature? - Whats the aim of CISG? - When did it enter into force? (for the U.S. and China?) - How many contracting parties/states(締約國) to the CISG?(up to 2008) - Which developed country hasnt ratifie

4、d CISG? 2. Scope/Framework of the CISGThe CISG is composed of 101 Articles that are divided into four parts:CISGSphere of Application and General ProvisionsFormation of the Contract Sale ofGoodsFinal Provision3. Applicability（適用范圍） of the CISG (1) Direct application. Through Article 1(1) (a), the CI

5、SG applies when both parties to the contract of sale have their places of business in different states that are both contracting states.Places of business Facts: the contract is between two Chinese companiesnegotiated entirely within Chinabut one of them had a place of business outside Chinathe cont

6、ract was formed with that branch and to be performed outside China. Issue: Does CISG govern this transaction?Places of business Decision: Yes, it is “places of business” that determines “international” or not. Nationality of individuals / location of negotiation / place of delivery is not a determin

7、ate factor for “international”. (2) Indirect application. According to Article (1) (b), Even if one or both parties do not have their place of business in a contracting state, the CISG might still apply “when the rules of private international law(國際私法) lead to the application of the law of a contra

8、cting state”. “如果國際私法規(guī)則導(dǎo)致適用某一締約國的法律”Sphere of Application Article 1 (1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States: (a) when the States are Contracting States; or (b) when the rules of private international law lead to the a

9、pplication of the law of a Contracting State. (2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time befor

10、e or at the conclusion of the contract. (3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention. 第一章. 適用范圍 第一條(1) 本公約適用于營業(yè)地在不同國家的當(dāng)事人之間所訂立的貨物銷售合同： (a) 如果這些國家是

11、締約國；或 (b) 如果國際私法規(guī)則導(dǎo)致適用某一締約國的法律。(2) 當(dāng)事人營業(yè)地在不同國家的事實(shí)，如果從合同或從訂立合同前任何時(shí)候或訂立合同時(shí)，當(dāng)事人之間的任何交易或當(dāng)事人透露的情報(bào)均看不出，應(yīng)不予考慮。(3) 在確定本公約的適用時(shí)，當(dāng)事人的國籍和當(dāng)事人或合同的民事或商業(yè)性質(zhì)，應(yīng)不予考慮。 (3) Opting out(退出退出) Article 6 The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of

12、any of its provisions. 雙方當(dāng)事人可以不適用本公約，或在第十二條的條件下，減損本公約的任何規(guī)定或改變其效力。 (4) Opting in(決定參加決定參加) Two leves: a)Parties in non-contracting states can agree that the CISG or law of contractiong state is applicable to their contract. b) Parties in contracting states can also agree theinr contract should be gov

13、erned by CISG rules despite the fact that it is not a sale contract falling under the CISG. (5) Exclusions(Article4-5) The CISG does not apply to various types of questions as follows: 1) Exclusion of questions of validity of the contract. 2) Exclusion of questions of effect on property. 3) Exclusio

14、n of questions of liability due to death or personal injury. This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not

15、 concerned with: (a) the validity of the contract or of any of its provisions or of any usage; (b) the effect which the contract may have on the property in the goods sold. Article 4 第四條 本公約只適用于銷售合同的訂立訂立和賣方和買方因此種合同而產(chǎn)生的權(quán)利和義務(wù)權(quán)利和義務(wù)。特別是，本公約除非另有明文規(guī)定，與以下事項(xiàng)無關(guān)：無關(guān)： (a) 合同的效力，或其任何條款的效力，或任何慣例的效力； (b) 合同對所售貨物所有

16、權(quán)可能產(chǎn)生的影響。 Article 5 This Convention does not apply to the liability （責(zé)任、義務(wù)） of the seller for death or personal injury caused by the goods to any person. 本公約不適用于賣方對于貨物對任何人所造成得死亡或傷害的責(zé)任 (6) Reservation（保留）（保留） China makes two reservations towards the provisions under CISG; 1) regarding the reservation

17、 towards the applicable scope of CISG. 2) regarding the reservation towards the form of a contract. What does goods mean in CISG? What does sales mean in CISG? (1) Goods The CISG applies only to a sale of goods. First, it excludes international consumer sales of “goods bought for personal, family or

18、 household use.” (供私人、家人或家庭使用的貨物) Second, the CISG specifically excludes certain specific kinds of sales such as sale by auction, and certain specific kinds of goods, such as stocks, electricity, ships, hovercraft, and aircraft. Third, the CISG excludes sales of goods where the buyer supplies a “sub

19、stantial part” of the “materials” necessary for production. 買方供應(yīng)生產(chǎn)所需的大部分重要材料的合同 Fourth, sales of manufactured goods are excluded where the “preponderant part” of the obligations of the supplier are in the form of labor or other services. 供應(yīng)貨物一方的絕大部分義務(wù)在于供應(yīng)勞力或其它服務(wù)的合同 (2) Sales The CISG applies to all

20、contracts for the sales of goods except for: 1)Goods bought for personal, family or household use, unless the seller was unaware of that fact; 2) Sales by auction（拍賣）; 3) On execution or otherwise by authority of law( 根據(jù)法律執(zhí)行令狀或其他領(lǐng)狀的銷售 ) ; 4) Sales of stocks, shares investment securities，Negotiable i

21、nstruments（可流通票據(jù)） or money; 5) Ships, vessels, hovercraft or aircraft, however it has not been interpreted to mean that it does not apply to such goods components(零件); 6) Sale of electricity.Example: consumer goods Facts: seller television retailer in France; buyer, a resident of China. In the contr

22、act it states: the television is for family use. When there is dispute, Issue: is CISG applicable? Decision: No. the French Law on Protecting Consumers Rights and Interests is applicableExample: consumer goods Facts: Seller a computer retailer in France, receives an order for a computer from buyer,

23、a resident of China. The order is for a powerful, expensive computer of the sort commonly bought for use in business firms. When a dispute arises, Issue: is covered by CISG or law on protecting consumer? Decision: CISG Article 2 This Convention does not apply to sales: (a) of goods bought for person

24、al, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use; (b) by auction; (c) on execution or otherwise by authority of law; (d) of stocks, shares, investment securities,

25、negotiable instruments or money; (e) of ships, vessels, hovercraft or aircraft; (f) of electricity. 第二條本公約不適用于以下的銷售： (a) 購供私人、家人或家庭使用的貨物的銷售，除非賣方在訂立合同前任何時(shí)候或訂立合同時(shí)不知道而且沒有理由知道這些貨物是購供任何這種使用； (b) 經(jīng)由拍賣的銷售； (c) 根據(jù)法律執(zhí)行令狀或其它令狀的銷售； (d) 公債、股票、投資證券、流通票據(jù)或貨幣的銷售； (e) 船舶、船只、氣墊船或飛機(jī)的銷售； (f) 電力的銷售。 Article 3 (1) Contra

26、cts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production. 供應(yīng)尚待制造或生產(chǎn)的貨物的合同應(yīng)視為銷售合同 , 除非訂購貨物的當(dāng)事人保證供應(yīng)這種制造或生產(chǎn)所需的大部分重要材料 . (2) This Conve

27、ntion does not apply to contracts in which the preponderant( 優(yōu)勢的 ) part of the obligations of the party （當(dāng)事人） who furnishes the goods consists in the supply of labour or other services. 本公約不適用于供應(yīng)貨物一方的絕大部分義務(wù)在于供應(yīng)勞力或其它服務(wù)的合同 II. Formation of Contract for International Sale of Goods 1. What is the requir

28、ement of the form of a contract for international sale of goods in CISG? 2.What is an offer?What are the requirements of it? And when does it become effective? 3.What is an acceptance? What are the requirements of it? And when does it become effective? 1. Formality of Contract 2. Offer (1) Definiten

29、ess Under Article 14 (1) of CISG, “(a) proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates th

30、e goods and expressly or implicitly fixes or makes provision for determining the quantity and the price”. (2) Requirements of Offer 1) the description of the goods; 2) their quantity or determinable quantity; and 3) their price and determinable price. (3) Effectiveness of an Offer The time that an o

31、ffer becomes effective is the time when the offer reaches the offeree. (4) Withdrawal and Revocation of an Offer The CISG allows the offeror to withdraw any offer, including offers that promise that they are irrevocable, as long as the withdrawal reaches the offeree before or at the same time as the

32、 offer. The CISG allows a party to revoke his offer before it has been accepted. Exceptions are that offers which indicate that they are irrevocable, and offers which state a fixed time for their acceptance will create an expectation in the offeree that they will not be revoked. Article 16 (1) Until

33、 a contract is concluded an offer may be revoked （無效） if the revocation （撤銷） reaches the offeree before he has dispatched （發(fā)出） an acceptance. （在未訂立合同之前，發(fā)價(jià)得予撤銷，如果撤銷通知于被發(fā)價(jià)人發(fā)出接受通知之前送達(dá)被發(fā)價(jià)人。） (2) However, an offer cannot be revoked: （但在下列情況下，發(fā)價(jià)不得撤銷：） (a) if it indicates, whether by stating a fixed time f

34、or acceptance or otherwise, that it is irrevocable; or （發(fā)價(jià)寫明接受發(fā)價(jià)的期限或以其它方式表示發(fā)價(jià)是不可撤銷的；或） (b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance （相信） on the offer. （被發(fā)價(jià)人有理由信賴該項(xiàng)發(fā)價(jià)是不可撤銷的，而且被發(fā)價(jià)人已本著對該項(xiàng)發(fā)價(jià)的信賴行事。） Case Study A Chinese company X

35、 sent an offer to an American company Y on the morning of May 17, with the provision of irrevocable, and provided that only the acceptance made before May 25 was effective. Company X sent the withdrawal of the offer on the afternoon of May 17. The withdrawal reached company Y on May 18. company Y re

36、ceived Xs offer on May 19, and made the acceptance with telegraph. Later the two parties argued whether the contract was formed. Question: Was company Xs offer successfully withdrawn? Yes. The time the withdrawal of offer should reach the offeree before or at the same time as the offer reaches the o

37、fferee. In this case, the time the withdrawal of offer reached company Y was on May 18, its the time before the time that the offer reached company Y, May 19. 3. Acceptance (1) Definiteness Under Article 18, an acceptance is either a statement or an act of the offeree indicating assent to an offer.

38、Acceptance of an offer may be made by means of a statement (聲明) or other conduct(其他行為) of the offeree indicating assent to the offer(對一項(xiàng)發(fā)價(jià)表示同意) that is communicated to the offeror(向發(fā)價(jià)人表示出來). Silence or inactivity does not constitute acceptance. (2) Requirements of Acceptance Whether an acceptance is

39、 effective is determined by three indicators: 1) it must be made by the offeree; 2) it must be made within the time period specified in the offer; and 3) it must match the terms of the offer exactly and unequivocally. (3) Time of Acceptance Article 21 (1) A late acceptance is nevertheless effective

40、as an acceptance if without delay the offeror orally so informs （告知） the offeree or dispatches a notice to that effect. （ 逾期接受仍有接受的效力，如果發(fā)價(jià)人毫不遲延地用口頭或書面將此種意見通知被發(fā)價(jià)人。 (2) If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission

41、had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect. （ 如果載有逾期接受的信件或其它書面文件表明，它是在傳遞正常、能及時(shí)送達(dá)發(fā)價(jià)人的情

42、況下寄發(fā)的，則該項(xiàng)逾期接受具有接受的效力，除非發(fā)價(jià)人毫不遲延地用口 頭或書面通知被發(fā)價(jià)人：他認(rèn)為他的發(fā)價(jià)已經(jīng)失效。 (4) Withdrawal of Acceptance Article 22 An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective. （ 接受得予撤回，如果撤回通知于接受原應(yīng)生效之前或同時(shí)，送達(dá)發(fā)價(jià)人。 (5) Acceptance with Modi

43、fications(變更的接受) Under the CISG, if the additional or different terms do not materially alter the terms of the offer, the reply constitutes an acceptance, unless the offeror without undue delay objects to those terms. If the additional or different terms do materially alter the terms of the contract

44、, the reply constitutes a counteroffer. Article 19 (1) A reply to an offer which purports （主旨） to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer. 對發(fā)價(jià)表示接受但載有添加、限制或其它更改的答復(fù)，即委拒絕該項(xiàng)發(fā)價(jià)，并構(gòu)成還價(jià)。 (2) However, a reply to a

45、n 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 ob

46、ject, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. 但是， 對發(fā)價(jià)表示接受但載有添加或不同條件的答復(fù)，如所載的添加或不同條件在實(shí)質(zhì)上并不變更該項(xiàng)發(fā)價(jià)的條件，除發(fā)價(jià)人在不過分遲延的期間內(nèi)以口頭或書面通知反對 其間的差異外，仍構(gòu)成接受。如果發(fā)價(jià)人不做出這種反對，合同的條件就以該項(xiàng)發(fā)價(jià)的條件以及接受通知內(nèi)所載的更改為準(zhǔn)。) (3) Additional or different terms relating, among other

47、 things, to the price, payment, quality and quantity 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 （本質(zhì)上） . 有關(guān)貨物價(jià)格、付款、貨物質(zhì)量和數(shù)量、交付地點(diǎn)和時(shí)間、一方當(dāng)事人對另一方當(dāng)事人的賠償責(zé)任范圍或解決爭端等等的添加或不同條件，均視為實(shí)

48、質(zhì)上變更發(fā)價(jià)的條件。 (6) The Time a Contract Is Formed A contract is formed when the acceptance is effective. Article18:An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. Case:Is there a contract? A company T in Guangzhou sent an offer to a company L in New

49、 York on May 1 for sales of goods. T limited that the acceptance before May 10 was effective. L informed T that it would accept the offer. But for the delay of the post office, the date that the acceptance reached T was beyond the validity period. T obtained the information that market price rose in

50、 the afternoon, May 10. Under CISG, is the contract formed under the following situations? 1) If ,after received the acceptance from L, T informed L immediately that the offer was effective; 2)If T kept silent after received the acceptance from L; 3)After received the acceptance from L, T informed L

51、 that it would not accept the late acceptance.III. Obligations of the Seller and Buyer買賣雙方的義務(wù) 1. Sellers Obligations (1) Delivery of the Goods（交付貨物） 1) Place of delivery. The CISG Article 31 gives the following rules for ascertaining the place of delivery: If the contract of sale involves carriage o

52、f the goods by sea, land or air, in the absence of any express agreement, the seller is obliged to deliver the goods only to the first carrier for transmission to the buyer. Article 31 If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists:

53、如果賣方?jīng)]有義務(wù)要在任何其它特定地點(diǎn)交付貨物，他的交貨義務(wù)如下： (a) if the contract of sale involves carriage of the goods - in handing the goods over to the first carrier for transmission to the buyer; 如果銷售合同涉及到貨物的運(yùn)輸，賣方應(yīng)把貨物移交給第一承運(yùn)人，以運(yùn)交給買方； If in case not within the preceding subparagraph, the contract relates to specific goods,

54、or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place, the seller is obliged to place the goods at the buyers

55、disposal at that place. 在不屬于上款規(guī)定的情況下，如果合同指的是特定貨物或從特定存貨中提取的或尚待制造或生產(chǎn)的未經(jīng)特定化的貨物，而雙方當(dāng)事人在訂立合同時(shí)已知道這些貨物是在某一特定地點(diǎn)，或?qū)⒃谀骋惶囟ǖ攸c(diǎn)制造或生產(chǎn)，賣方應(yīng)在該地點(diǎn)把貨物交給買方處置； In cases which do not fall into the above two situations, the place of delivery is the place where the seller had his place of business at the time of the conclusi

56、on of the contract. 在其它情況下，賣方應(yīng)在他于訂立合同時(shí)的營業(yè)在其它情況下，賣方應(yīng)在他于訂立合同時(shí)的營業(yè)地把貨物交給買方處置。地把貨物交給買方處置。 2) Time of Delivery Article 33: The seller must deliver the goods: If a date is fixed by or determinable from the contract, on that date; 如果合同規(guī)定有日期，或從合同可以確定日期，如果合同規(guī)定有日期，或從合同可以確定日期，應(yīng)在該日期交貨應(yīng)在該日期交貨 If a period of time

57、is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date;or 如果合同規(guī)定有一段時(shí)間，或從合同可以確定一如果合同規(guī)定有一段時(shí)間，或從合同可以確定一段時(shí)間，除非情況表明應(yīng)由買方選定一個(gè)日期外，段時(shí)間，除非情況表明應(yīng)由買方選定一個(gè)日期外，應(yīng)在該段時(shí)間內(nèi)任何時(shí)候交貨；或者應(yīng)在該段時(shí)間內(nèi)任何時(shí)候交貨；或者 In any other case, within a reasona

58、ble time after the conclusion of the contract. 在其它情況下，應(yīng)在訂立合同后一段合理在其它情況下，應(yīng)在訂立合同后一段合理時(shí)間內(nèi)交貨。時(shí)間內(nèi)交貨。 Facts: A Chinese seller and a Hungarian buyer concluded a contract for the sale of silk sports shirts. The contract did not specify a date for delivery. About one month later, the buyer demanded by fax th

59、at the goods be delivered in time for the summer selling season. The goods were shipped several weeks after the fax and then missed the summer selling season. Issue: does the seller breach the contract when the delivery date is not specified in it? Decision: yes. According to CISG, when a date of de

60、livery or a period of time is not specified, the seller must deliver the goods within a reasonable time. In this case, the silk sports shirts are for summer selling, so the delivery should be made before summer.(2) Delivery of Documents移交單據(jù)移交單據(jù)Article 34 If the seller is bound to hand over documents