ch5 Contract Law for the International Sale of Goods

1、Chapter FiveContract Law for the International Sale of Goods ObjectivesTo understand remedies for breach of contract (违约救济)To understand remedies for anticipatory breach (预期违约) of contractTo understand Exceptio non Adimpleti Contractus (履约抗辩权) in Civil LawTo understand liquidated damages (违约金) 一个德国商

2、人与一个英国商人签定了一份小麦销售合同，向这个英国商人出售一批小麦。如果德国商人违约，拒绝出售这批小麦，而英国商人又非常想得到这批小麦，英国商人向德国法院起诉德国商人，要求法院判决德国商人实际履行合同。这个英国商人能否得到实际履行的判决？ 如果反过来，是英国商人向德国商人出售小麦，英国商人违约，拒绝出售小麦，德国商人向英国法院起诉英国商人，要求法院判决英国商人实际履行合同。这个德国商人能否得到实际履行的判决？In-Class Focus Remedies for breach of contract（违约救济）Remedies General principles of remediesBuy

3、ers remediesSellers remediesRemedies available to both buyers and sellers Anticipatory breach (预期违约) of contract and Exceptio non Adimpleti Contractus (履约抗辩权) in Civil Law Liquidated damages (违约金)What is breach of contract (违约）? A breach of contract is committed when a party without lawful excuse fa

4、ils or refuses to perform what is due from him under the contract, or performs defectively or incapacitates himself from performing.General principles of remedies The doctrines of compensationThe doctrine of expectation interest（期望利益理论）The doctrine of reliance interest（信任利益理论）The doctrine of restitu

5、tion interest（返还利益理论Example The doctrine of limitations on damagesNon-breaching party has the duty to mitigate damages.Damages must be established with a reasonable degree of certainty.Damages must be either foreseeable to the breaching party or would naturally flow from the breach. (Case reading) P

6、124-125 Party A enters into a contract to purchase a computer for $2000 (Let us make the assumption that the market value of such a computer is, in fact, $2000). In breach of contract the seller provides with a defective computer which is worth only $1000. Party A fulfils his side of the bargain and

7、 pays $2000. How shall Party A get compensated based on the following doctrines? Expectation interest Reliance interest Restitution interest Expectation: deducting the value of what Party A has actually received ($1000) from the value of what he expected to receive ($2000). Damages:$1000 Reliance: H

8、ad Party A not entered into the contract, he wouldnt have parted with his $2000 and he wouldnt have received a computer worth $1000. deducting the value of what he has received ($1000) from the amount which Party A has paid out ($2000). Damages: $1000 Restitution: Party A is entitled to the return o

9、f the $2000 and the seller would be entitled to the return of the computer. Questions for case readingWhat is the case background?What is the action at issue (争议焦点）?How does the judge construe “foreseeable” and “actually foreseen” in this case?What is the decision made by the judge?Could you give so

10、me examples illustrating what is foreseeable and what is unforeseeable in international trade?Buyers remedies CISGs remedies unique to the buyer:To compel specific performance (art.46) (Chinas contract law: art.110)To avoid the contract for fundamental breach or non-delivery (art.47-49) (Chinas cont

11、ract law: art.94)To reduce the price (art.50)To refuse early delivery,(art.52(1) andTo refuse excess quantities (art.52(2) Specific performance Common lawMoney damages Civil lawSpecific performance Not only more common, but also preferred. CISGSpecific performance PICCSpecific performance with excep

12、tionsArticle 7.2.2 of the PICC Where a party who owes an obligation other than one to pay money does not perform, the other party may require performance, unless(a) performance is impossible in law or in fact;(b) performance or, where relevant, enforcement is unreasonably burdensome or expensive;(c)

13、 the party entitled to performance may reasonably obtain performance from another source;(d) performance is of an exclusively personal character; or(e) the party entitled to performance does not require performance within a reasonable time after it has, or ought to have become aware of the non-perfo

14、rmance. Article 46 of the CISG (1) The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement. (2) If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if t

15、he lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made either in conjunction with notice given under article 39 or within a reasonable time thereafter. (3) If the goods do not conform with the contract, the buyer may require the seller to remedy

16、 the lack of conformity by repair, unless this is unreasonable having regard to all the circumstances. A request for repair must be made either in conjunction with notice given under article 39 or within a reasonable time thereafter. 第一百一十条当事人一方不履行非金钱债务或者履行非金钱债务不符合约定的，对方可以要求履行，但有下列情形之一的除外：（一）法律上或者事实

17、上不能履行；（二）债务的标的不适于强制履行或者履行费用过高；（三）债权人在合理期限内未要求履行。 If one party to a contract fails to perform the non-monetary debt or its performance of non-monetary debt fails to satisfy the terms of the contract, the other party may request it to perform it except under any of the following circumstances: (1) It

18、is unable to Article 49 of the CISG (1) The buyer may declare the contract avoided: (a) if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or (b) in case of non-delivery, if the seller does not deliver the

19、 goods within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 47 or declares that he will not deliver within the period so fixed. Article 47 of the CISG (1) The buyer may fix an additional period of time of reasonable length for performance by the seller

20、of his obligations. 第九十四条有下列情形之一的，当事人可以解除合同：第九十四条有下列情形之一的，当事人可以解除合同：（一）因不可抗力致使不能实现合同目的；（一）因不可抗力致使不能实现合同目的；（二）在履行期限届满之前，当事人一方明确表示或（二）在履行期限届满之前，当事人一方明确表示或者以自己的行为表明不履行主要债务；者以自己的行为表明不履行主要债务；（三）当事人一方迟延履行主要债务，经催告后在合（三）当事人一方迟延履行主要债务，经催告后在合理期限内仍未履行；理期限内仍未履行；（四）当事人一方迟延履行债务或者有其他违约行为（四）当事人一方迟延履行债务或者有其他违约行为致使不能

21、实现合同目的；致使不能实现合同目的；（五）法律规定的其他情形。（五）法律规定的其他情形。 Article 94 The parties to the contract may rescind the contract under any of the following circumstances:(a) the purpose of the contract is not able to be realized because of force majeure.(b) Article 50 If the goods do not conform with the contract and w

22、hether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to per

23、form his obligations in accordance with article 37 or article 48 or if the buyer refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price. Article 52 (1) If the seller delivers the goods before the date fixed, the buyer may take delivery or re

24、fuse to take delivery. (2) If the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract r

25、ate. Sellers remedies The sellers remedies are similar to those of the buyer. 1. to compel specific performance 2. to avoid the contract for a fundamental breach or failure to cure a defect 3. to obtain missing specifications.Remedies available to both buyers and sellers 1. Suspension of performance

26、, 2. Avoidance in anticipation of a fundamental breach, 3. Avoidance of an installment contract, 4. Avoidance, and 5. Damages.Damages Article 74 of CISG Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a conseque

27、nce of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract. Avoidance of an installment contract Article 73 of CISG (1) In the case of a contract for delivery of goods by instalments, if