新编国际货物买卖合同中买卖双方的权利义务课件

1、国际货物买卖合同中买卖双方的权利义务CISG第三部分Incoterms2000合同法总则及分则第九章 8/7/20221ruc hly义务渊源联合国国际货物销售合同公约Incoterms2000合同法总则及分则第九章当事人约定8/7/20222ruc hly公约规定的义务共同义务保全货物通知卖方的四大义务买方的两大义务8/7/20223ruc hly卖方的义务交付合同规定的货物交付单据（转移所有权）货物相符权利保证8/7/20224ruc hlyArticle 30 The seller must deliver the goods, hand over any documents relat

2、ing to them and transfer the property in the goods, as required by the contract and this Convention.Section I. Delivery of the goods and handing over of documents 8/7/20225ruc hly1交货：deliver the goods何为交付：自愿转移占有形式？地点特定地点涉及运输，交给第一承运人不涉及运输，特定货物或未特定化货物，知悉的特定地点其他情况，卖方订立合同时的营业地时间具体日期一段时期合同订立后合理时间8/7/2022

3、6ruc hly31（b）31.If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists:(b) if, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactu

4、red 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-in placing the goods at the buyers disposal at that place; 8/7/20227ruc hly交货方式（运输）交给承运人加注货物标记注明货物，否则发货通知如果安排运输，必要运输合同如果无义务保险，提供保险

5、帮助8/7/20228ruc hly32(2) 32(2) If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation.8/7/20229ruc hl

6、y2交单交付单据(转移所有权)与国内贸易的最大不同交货之外的独立义务按合同规定的时间、地点、形式8/7/202210ruc hlyArticle 34 If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before that time, he may, up

7、 to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention. 8/7/202211ruc hly3货物相符四方面数量（溢短装）质量规格包装如何确定

8、相符约定标准（相互间的关系）规格（买方或卖方的规定确定A65）说明样品公约最低标准8/7/202212ruc hly3货物相符（公约标准）四标准：买方订约时已知例外（卖方免责）通常使用目的特定目的样品通常方式包装8/7/202213ruc hly货物检查标准机构时间地点卖方检验，结算依据买方检验，最终依据双方约定8/7/202214ruc hly买方通知不符时间及时检验及时通知不符过期丧失主张不符权卖方已知或不可能不知而未告知的，例外8/7/202215ruc hly货物不符与风险转移货物不符与途中灭损风险承担是两个不同问题卖方负责期限CISG36卖方应按照合同和本公约的规定，对风险转移到买方

9、时所存在的任何不符合同情形，负有责任，即使这种不符合同情形在该时间后方始明显。卖方对上一款所述时间后发生的任何不符情形，也应负有责任，如果这种不符合同情形是由于卖方违反他的某项义务所致，包括违反关于在一段时间内货物将继续适用于其通常适用的目的或某种特定目的，或将保持某种特定质量或性质的任何保证。风险转移时风险转移后违约延长期限8/7/202216ruc hly卖方对货物不符的责任买方订约时知道不符否？不知，卖方有责已知，卖方免责（卖方已知？）买方收货后合理通知？有，则卖方有责无，则买方失权卖方已知而没告知，不能主张买方失权（保护买方）8/7/202217ruc hlyArticle 35 一般

10、要求35(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. 8/7/202218ruc hly四标准35(2) Except where the parties have agreed otherwise, the goods do not conform with the co

11、ntract unless they: (a) are fit for the purposes for which goods of the same description would ordinarily be used; (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer

12、did not rely, or that it was unreasonable for him to rely, on the sellers skill and judgment; (c) possess the qualities of goods which the seller has held out to the buyer as a sample or model; (d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a m

13、anner adequate to preserve and protect the goods. 8/7/202219ruc hly卖方负责的期限36(1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only aft

14、er that time. (2) The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary p

15、urpose or for some particular purpose or will retain specified qualities or characteristics. 8/7/202220ruc hly35（3）卖方因买方已知而免责35(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contra

16、ct the buyer knew or could not have been unaware of such lack of conformity.8/7/202221ruc hly38 买方检查时间、地点(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. (2) If the contract involves carriage of the goods, examinatio

17、n may be deferred until after the goods have arrived at their destination. (3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the p

18、ossibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination. 8/7/202222ruc hly39 不符通知(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of th

19、e lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on

20、which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee. 8/7/202223ruc hly40卖方已知缺陷，保护买方The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew

21、or could not have been unaware and which he did not disclose to the buyer.8/7/202224ruc hly4卖方权利担保义务与责任何种权利何时权利何地权利对谁严格8/7/202225ruc hly4物权担保交付的货物，第三方不能提出任何权利或要求买方同意例外（卖方免责）买方及时通知与失权卖方知或应知权利要求，不能主张买方失权（保护买方）8/7/202226ruc hly知识产权权利担保第三方不得提出知识产权权利或要求预期转售地使用地买方所在地订约时卖方已知或不可能不知买方已知或提供图样例外买方及时通知与失权卖方已知或应

22、知，不能主张买方失权8/7/202227ruc hly案例讨论许可方欧洲公司被许可方中国公司多条生产线 合法 自己组装出口美国 被指控侵权 其他国家？怎办8/7/202228ruc hlyArticle 41 物权性质的要求The seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim. However, if such right or c

23、laim is based on industrial property or other intellectual property, the sellers obligation is governed by article 42. 8/7/202229ruc hlyArticle 42 卖方对缔约时已知IP承责(1) The seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual

24、property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, provided that the right or claim is based on industrial property or other intellectual property: (a) under the law of the State where the goods will be resold or otherwise used, if it was

25、 contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or (b) in any other case, under the law of the State where the buyer has his place of business. 8/7/202230ruc hlyArticle 42 买方已知使卖方免责(2) The obligation of the se

26、ller under the preceding paragraph does not extend to cases where: (a) at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim; or(b) the right or claim results from the sellers compliance with technical drawings, designs, formulae or other s

27、uch specifications furnished by the buyer. 8/7/202231ruc hly43买方通知义务与卖方已知43(1) The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has

28、 become aware or ought to have become aware of the right or claim. (2) The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it. 44 Notwithstanding the provisions of paragraph (1) of article 39 and paragr

29、aph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice.8/7/202232ruc hly买方义务支付价款支付准备和实际支付?卖方未交付货物,应否付款接收货物接收准备和实际接收不是接受8/7/202233ruc hlyArticle 5353 The

30、 buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.8/7/202234ruc hly54付款准备54. The buyers obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and reg

31、ulations to enable payment to be made. 8/7/202235ruc hly付款地点特定地点卖方营业地交货交单地8/7/202236ruc hly57付款地点57(1) If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: (a) at the sellers place of business; or (b) if the payment is to be made against the handing

32、 over of the goods or of documents, at the place where the handing over takes place. (2) The seller must bear any increase in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the contract.8/7/202237ruc hly付款时间特定时间货物或单据交买方控制时支付可为交

33、付条件付款可为发运货物条件验货机会前可不支付与交货或支付程序抵触除外到期付款，无需催办8/7/202238ruc hly58付款时间(1) If the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at the buyers disposal in accordance with the contract and th

34、is Convention. The seller may make such payment a condition for handing over the goods or documents. (2) If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer exce

35、pt against payment of the price. (3) The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity. 8/7/202239ruc hly55 价格的确定55. Where a contr

36、act has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the cont

37、ract for such goods sold under comparable circumstances in the trade concerned.56. If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the net weight. 8/7/202240ruc hly收取货物采取一切行动，便利卖方交货FOB下的租船接收货物FOB下的派船8/7/202241ruc hly收货义务66.The buyers obligation

38、to take delivery consists: (a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; and(b) in taking over the goods.8/7/202242ruc hly共同义务1保全货物保全情形买方推迟收货，或货款同时清结时不付款，卖方控制货物买方收到货物，但打算退货买方退货，代收货物保全措施种类寄放出售（条件）合理性费用及补偿8/7/202243ruc hly共同义务2通知行权通

39、知宣告合同无效的通知（26条）通知未能及时到达，不影响通知人的权利（27条）另外要求的通知（设定义务的通知）到达生效，如履约宽限期的规定8/7/202244ruc hly违约类型根本违约与非根本违约效果预期违约与实际违约时间根本违约V.预期违约交叉8/7/202245ruc hly根本违约的界定及结果违约后果剥夺受害人预期利益（主观）违约方没有预知（主观）第三人无理由预知（客观）受害方可宣告合同无效8/7/202246ruc hly分批交货与根本违约批次货物与合同的关系批次货物前后批次货物合同货物宣告合同无效8/7/202247ruc hly25根本违约25A breach of contra

40、ct committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances woul

41、d not have foreseen such a result. 8/7/202248ruc hly预期违约时间表现措施中止宣告合同无效保证8/7/202249ruc hly71预期违约anticipatory breach71.(1) A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of hi

42、s obligations as a result of: (a) a serious deficiency in his ability of perform or in his creditworthiness; or (b) his conduct in preparing to perform or in performing the contract. 8/7/202250ruc hly71预期违约（续）(2) If the seller has already dispatched the goods before the grounds described in the prec

43、eding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller. (3) A party suspending performance, w

44、hether before or after dispatch of the goods, must immediately give notice of the suspension to the other party and must continue with performance if the other party provides adequate assurance of his performance.8/7/202251ruc hly违约责任责任类型与救济措施合同责任与侵权责任合同前/中/后责任赔偿责任其他责任（救济）8/7/202252ruc hly赔偿的原则普遍适用非

45、他所能控制的障碍时的免除高低要求8/7/202253ruc hly赔偿原则一方当事人违反合同应负的损害赔偿额，应与另一方当事人因他违反合同遭受的包括利润在内的损失额相等。（实际）subject to 这种损害赔偿不得超过违反合同一方在订立合同时依照他当时已知或理应知道的事实和情况，对违反合同预料到或理应预料到的可能损失。（预期）8/7/202254ruc hly存在替代交易时的赔偿如果合同被宣告无效，宣告无效后的合理时间内，买方以合理方式购买替代物，或卖方以合理方式转售，则要求赔偿的一方可以获得合同价格与替代交易价格之间的差额以及据上述赔偿的一般原则可以取得的其他损害赔偿8/7/202255r

46、uc hly没有替代交易时的赔偿如果合同被宣告无效，当事人没有转售或购买货物，而货物在交付地点又有时价，则要求损害赔偿的一方，可以取得合同价与宣告合同无效时的时价之间的差额及据一般赔偿原则可取得的其他赔偿。如果买方接收货物后又宣告合同无效，则适用接收货物时、交付货物地的时价，即合同价与接收货物时的时价之间的差额。8/7/202256ruc hly有关损害赔偿的一些原则实际与合理预期7445.2/61.2 not deprived of any right he may have to claim damages by exercising his right to other remedies

47、.79.5Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention.8/7/202257ruc hly74损害赔偿的一般原则：实损74. 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

48、 consequence 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 c

49、ontract. 8/7/202258ruc hly75解除合同时的损害赔偿：差价75.If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract

50、 price and the price in the substitute transaction as well as any further damages recoverable under article 74.8/7/202259ruc hly76解除合同时的损害赔偿76. (1) If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under art

51、icle 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under article 74. If, however, the party claiming damages has avoided the contract after taking over the goods, the current price at the t

52、ime of such taking over shall be applied instead of the current price at the time of avoidance. 8/7/202260ruc hly76.(2) current price (2) For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there

53、 is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods.8/7/202261ruc hly卖方违约时的其他救济形式实际履行交付替代物根本违约及时通知修理宽限期减价宣告合同无效多交货物时的处理8/7/202262ruc hly买方违约时的其他救济形式支付价款收到货物履约宽限期宣告合同无效8/7/20

54、2263ruc hly减价1要求减价的适用情况或限制（补救）减价按实际交付的货物在交货时的价值与符合合同的货物在当时的价值两者之间的比例计算。合同价100实际交付的货价80？8/7/202264ruc hly减价1比例计算合同价符合合同的时价？不符合同的时价？合同价不符合同的时价符合合同的时价8/7/202265ruc hly减价比例If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in

55、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 perform his obligations in accordance with article 37 or article 48 or if the buyer

56、refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price. 8/7/202266ruc hly宣告合同无效avoidance含义效果条件限制8/7/202267ruc hly含义与效果含义相当于解除合同效果解除双方合同项下的义务赔偿存在争端解决条款依然有效可恢复原状8/7/202268ruc hly买方宣告合同无效的条件卖方根本违约未交货时宽限期满不交货，或期内声明不交货8/7/202269ruc hly买方宣告无效权利的限制

57、相关合理期限内未宣告无效延迟交货时，知道交货后非延迟交货知或应知违约宽限期满声明不履约后补救期满声明不接受后8/7/202270ruc hly卖方宣告合同无效的条件根本违约宽限期内不付款或不收货，或声明不做8/7/202271ruc hly卖方宣告合同无效权的限制买方已经支付价款迟延履行，知道买方发行义务前迟延履行外，已知应知后合理期限宽限期满声明不履约后合理期限8/7/202272ruc hly81宣告合同无效（解除合同）的效果(1) Avoidance of the contract releases both parties from their obligations under it

58、, subject to any damages which may be due. Avoidance does not affect any provision of the contract for the settlement of disputes or any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract. 8/7/202273ruc hly81返还恢复原状(2) A p

59、arty who has performed the contract either wholly or in part may claim restitution from the other party of whatever the first party has supplied or paid under the contract. If both parties are bound to make restitution, they must do so concurrently. 8/7/202274ruc hly49买方宣布合同无效的条件49(1) The buyer may

60、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 goods within the additional period of time fixed by t