国际贸易法英文版双语教学课件Chapter3

1、United Nations Convention on Contracts for the International Sale of GoodI. A Short History of the Drafting of CISGA . The Drafting of CISGThe Commission combined the two draft conventions into one - the United Nations Convention on Contracts for the International Sale of Goods ( CISG, ) or popularl

2、y known as the Vienna Convention )-and submitted to the Diplomatic Conference held at Vienna .CISG came into force in 1988 with the required 10 ratifications .Since then ,there has been a steady stream of ratifications .Until today ,CISG is still the only one international convention passed by the U

3、nited Nations in the field of international trade law . 1.I. A Short History of the Drafting of CISGB .Limitations on the Application of CISG CISG Has No Provisions Allowing Adoption of the ConventionUnder CISG Article 6,the parties may expressly determine not to be governed by (“opt out of”) the Co

4、nvention.Also ,it should be noted that ,although CISG Article 6 gives wide recognition to party autonomy (the ability of the parties to determine the terms of their deal ),it only recognizes the ability of the parties to exclude the Convention .Namely ,CISG itself has no provisions allowing adoption

5、 of the Convention through party autonomy . 1.I. A Short History of the Drafting of CISGB .Limitations on the Application of CISG CISG Does Not Define Contract of Sale “However ,under the Convention ,the application to some types of transactions is problematic .Known problems include consignments ,i

6、n which the buyer may return any goods which cannot be sold ,barter transactions or counter trade,“ in which goods are exchanged for other goods and not for money ,and conditional sales ,in which the seller retains title to secured payment .2.3.CISG Does Not Define Goods“In the Convention ,the term

7、goods is unclear .Article 2 only expresslyI. A Short History of the Drafting of CISGB .Limitations on the Application of CISG excludes con - tracts for the sale of commercial paper ,investment securities ,ships , aircraft , hovercraft and electricity .Article 2 also expressly excludes international

8、sales of goods to consumers , so that the Convention would not conflict with consumer protection laws ,which are often mandatory law . Article5 provides that the Convention does not govern causes of action against the seller for death or personal injury , even though arising out of sales transaction

9、 ,because any provisions on such causes of action would conflict with mandatory law of many jurisdictions . 3.I. A Short History of the Drafting of CISGB .Limitations on the Application of CISG CISG Does Not Govern the Validity“ of the Contract or Its Effect on Title to the Goods Under CISG Article

10、4 ,the Convention states that it governs only the formation of the contract “ and the right sand obligations of the parties to the contract .It does not govern the validity of the contract ,or its effect on title to the goods ,including presumably most rights and obligations of third parties to the

11、contract .4.I. A Short History of the Drafting of CISGC .CISG Rules of Interpretation TheunderlyinggoalofCISGisthecreationofauniformbodyofinternationalcommercialsaleslaw .IndecidingquestionsgovernedbytheConvention,Article7(2)directsacourttolooktothefollowingsources,inthisorder: (1)theConvention,(2)t

12、hegeneralprinciplesonwhichtheConventionisbased,and(3)therulesofprivateinternationallaw.1.The ConventionWhen the words of CISG itself require interpretation ,Article 7 ( 1)directs a court to consider ( a)the international character of the2.I. A Short History of the Drafting of CISGC .CISG Rules of In

13、terpretation Convention ,( b)the need to promote uniformity in the Conventions application ,and ( c)the observance of good faith .Article 7 ( 1),however ,does not describe the sources the Court mayor-must-use in making its interpretation . 2.General Principles Two that have been suggested are ( a) a

14、 party to a contract has the duty to communicate information needed by the other party ,and (b) the obligation to mitigate damages resulting from a breach .3.I. A Short History of the Drafting of CISGC .CISG Rules of Interpretation Although CISG does not give a list of general principles ,it does se

15、t out the mechanism for determining them .They must be derived from particular sections within the Convention ,and then extended ,by analogy ,to the case at hand .3.Rules of Private International LawThey may be used ,however ,only when CISG itself does not directly settle a matter ,or when the matte

16、r cannot be resolved by the application of a general prinaple derived from the Convention itself . 4.I. A Short History of the Drafting of CISGC .CISG Rules of Interpretation Statements and Conduct of the PartiesA contract is sometimes said to be formed only when the parties have a meeting of minds

17、or a common intent .This comes from the idea ,commonly accepted in many civil law countries ,that parties are bound by a contract only when they subject their will to its terms .This theory is called subjective intent approach . 5. D .Trade Usage and CISG1.Trade usages and trade terms play an import

18、ant role in international trade law ,and for a convention to be successful it needs to be sympathetic to them .I. A Short History of the Drafting of CISGD .Trade Usage and CISGThe CISG recognizes both express and implied usages .Knowledge plays a vital role in incorporating usages impliedly :That is

19、 ,whether the parties knew or ought to have known of the usage ,that the usage is widely known in international trade ,and the usage is regularly observed by the parties in contracts of the type involved in the particular trade concerned.2. 1.The Principle of Place of BusinessA contract for the sale

20、 of goods will come within the ambit of the CISG if : E . Sphere of Application I. A Short History of the Drafting of CISGE . Sphere of Application the places of business are in different states ;and both these states are contracting states to the CISG and both parties know that they have places of

21、business in different states on the basis of the contract ,or dealings or information disclosed before or at the conclusion of the contract.Generally ,the following factors will have to be considered in determining the place of business on the basis of Article 10 :the place where the business organi

22、zation is registered ,the place where important decisions regarding the organizations running are taken ,the place where the transaction is to be performed ,the permanency of the place , etc.1. I. A Short History of the Drafting of CISGE . Sphere of Application Students are required to note that CIS

23、G may apply even if the buyers and the sellers places of business are not in a contracting state .1. 2.Sales and Issues ExcludedThe following types of sales have been specifically excluded from the Convention : ( 1)Consumer goods sold for personal ,family ,or household use .( 2)Goods bought at aucti

24、on . ( 3)Stocks ,securities ,negotiable instruments ,or money . ( 4)Ships , vessels ,or aircraft . I. A Short History of the Drafting of CISGE . Sphere of Application ( 5)Electricity. ( 6)Assembly contracts for the supply of goods to be manufactured or produced wherein the buyer provides a “substant

25、ial part of the materials necessary for such manufacture or production.”( 7)Contracts that are in “preponderant part” for the supply of labor or other services.( 8)Liability of the seller for death or personal injury caused by the goods.( 9)Contracts where the parties specifically agree to optout of

26、 the Convention or where they choose to be bound by some other law . 2. II. Formation of the ContractA. Invitation OfferAn offer is not capable of being turned into a contract by acceptance .It is used to invite others to make offer .1. 1. B .The Offer An offer is a proposal by one person to another

27、 indicating an intention to enter into a contract under specified terms .In the words of the Restatement ( Second)of Contracts &24 ,an offer must be a manifestation of willingness to enter into a bargain ,so made as to justify another person in understanding that his assent to that bargain is invite

28、d and will conclude it . II. Formation of the ContractB .The OfferRequirements of Offer( 1)The contract law of most nations holds that an offer must be addressed to one or more specific persons .2)Under Article 11 of the CISG an offer must be sufficiently definite and indicate the intention of the o

29、fferor to be bound .An offer is considered sufficiently definite if it (a)cates or describes the goods .( b)expressly or implicitly specifies the quantity .and ( e) expressly or specifies the price for the goods .2. The Binding of Offer3.II. Formation of the ContractB .The OfferArticle 14 of the CIS

30、G states :( 1)Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance ;( 2)However ,an offer cant be revoked .( a)if it indicates , whether by stating a fixed time for acceptance or otherwise , that it is irrevocable or (b)if

31、 it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer . 3. Revocation of OfferRevocation of offer means that the offeror notifies the offeree before4.II. Formation of the ContractB .The Offeracceptance of the of the offer so a

32、s to be free from it .Common law countries and civil law countries differ to whether the offeror is entitled to the revocation of offer before acceptance . though those two legal families are getting more and more close .Article 16 of the CISG states :( 1)Until a contract is concluded an offer may b

33、e revoked if the revocation reaches the offeree before he has dispatched an acceptance .( 2)However, an offer cannot be revoked:(a)if it indicates ,whether by stating a fixed time for acceptance or otherwise ,that it is irrevocable ;or (b)if it was reasonable for the offeree4. II. Formation of the C

34、ontractB .The Offerto rely on the offer as being irrevocable and the offeree has acted in reliance on the offer .4. C .The Acceptance Requirements of Acceptance( 1)An acceptance must be made by the offeree . ( 2)An acceptance must be made within the period of validity . ( Late acceptance is a counte

35、roffer only.）( 3)An acceptance must match the terms of the offer exactly and1.II. Formation of the ContractC .The Acceptance unequivocally . Otherwise it is considered a counteroffer and thus a rejection of the original offer.1. Time of AcceptanceUnderthecommonlaw,acontractisformedwhentheacceptancei

36、sdispatchedbytheofferee.Inthecaseofanacceptancebyletter,thetimeofdispatchisthetimetheletterisputintothehandsofthepostalauthorities.ThisisknownasMailboxrule.“Under most civil law countries ,the receipt theory is used .2.II. Formation of the ContractD .Battle of the Forms The Battle of the Forms under

37、 the Common LawIn the United States the mirror image rule has been modified by statute to deal with modern business practices and to avoid the problems .Under UCC 2-207 : ( 1)A written confirmation which is sent within a reasonable time operates ns an acceptance even though it states terms additiona

38、l to or different from those in the purchase order ,unless the confirmation is expressly made conditional on assent to the additional or different terms . 1. II. Formation of the ContractD .Battle of the Forms ( 2)If both parties are merchants ,any additional terms contained in the sellers confirmation automatically become a part of the contract unless :( a)The buyers purch