国际贸易法Chapter24PassingofProperty.ppt

1、2020/10/7,1,Chapter 2 ITL Contract Laws,Unit 4 Transfer of Property and Risks,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,2,Contents,4.1 Transfer of Property 4.2 The Passing of Risk,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,3,4.1 Transf

2、er of Property,1. Common Law Sales of Goods Act of the U. K. 1.1 Specific Goods The property of specific goods to the buyer at the time when the parties intend it to pass. Specific goods are goods identified and agreed upon at the time the contract is made.,2020/10/7,Chapter 2 ITL Contract Law Unit

3、4 Transfer of Property and Risks,4,4.1 Transfer of Property,Article17. Property passes when intended to pass (1) Where there is a contract for the sale of specific goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.,2020/10/

4、7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,5,4.1 Transfer of Property,How to ascertain the intention of the parties? the terms of the contract; the conduct of the parties; and the circumstances of the case.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and

5、Risks,6,4.1 Transfer of Property,Rules for ascertaining intention: Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transf

6、er of Property and Risks,7,4.1 Transfer of Property,Rule 1.Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery

7、, or both, be postponed.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,8,4.1 Transfer of Property,Rule 2.Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state

8、, the property does not pass until the thing is done and the buyer has notice that it has been done. (the goods are not in the deliverable state),2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,9,4.1 Transfer of Property,Rule 3.Where there is a contract for the sale of spe

9、cific goods in a deliverable state but the seller is bound to weigh, measure, test, or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until the act or thing is done and the buyer has notice that it has been done.,2020/10/7

10、,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,10,4.1 Transfer of Property,Rule 4.When goods are delivered to the buyer “on approval” or “on sale or return” or other similar terms the property in the goods passes to the buyer: (a) when he signifies his approval or acceptance to th

11、e seller or does any other act adopting the transaction;,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,11,4.1 Passing of Property,(b) if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time

12、 has been fixed for the return of the goods, on the expiration of that time, and, if no time has been fixed, on the expiration of a reasonable time.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,12,4.1 Passing of Property,1.2 for unascertained goods Rule 5.Where there is

13、 a contract for the sale of unascertained by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods then passes

14、to the buyer; and the assent may be express or implied, and may be given either before of after the appropriation is made.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,13,4.1 Passing of Property,如一项契约是凭说明书买卖未经指定的货物，当符合有关说明书的并处于可交付状态的货物，无条件地归拨给该项契约项下时，则或者由卖方提出而取得买方同意，或者由

15、买方提出而取得卖方同意，货物的财产权即告移转给买方。此项同意可以用明示或默示的方法，可以在货物归拨之前或以后为之。,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,14,4.1 Passing of Property,2. Under UCC: 2-401. Passing of Title; (1) Title to goods cannot pass under a contract for sale prior to their identification to the contrac

16、t.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,15,4.1 Passing of Property,(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite

17、any reservation of a security interest and even though a document of title is to be delivered at a different time or place;,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,16,4.1 Passing of Property,(a) if the contract requires or authorizes the seller to send the goods to

18、 the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment;,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,17,4.1 Passing of Property,(b) if the contract requires delivery at destination, title passes on

19、 tender there.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,18,4.1 Passing of Property,(3) Unless otherwise explicitly agreed where delivery is to be made without moving the goods, (a) if the seller is to deliver a tangible document of title, title passes at the time wh

20、en and the place where he delivers such documents, and if the seller is to deliver an electronic document of title, title passes when the seller delivers the document;,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,19,4.1 Passing of Property,(b) if the goods are at the ti

21、me of contracting already identified and no documents of title are to be delivered, title passes at the time and place of contracting.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,20,4.1 Passing of Property,2 Civil Law 1.Stipulations in the Civil Code of France At the m

22、oment of the execution of the contract;,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,21,4.1 Passing of Property,3. Stipulations in the Contract Law of the P.R.C. The ownership over a targeted matter is transferred upon the delivery of the targeted matter, unless the law

23、 provides otherwise or the parties stipulate otherwise. At the moment of the delivery of the targeted matter;,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,22,4.1 Passing of Property,4. Stipulations of CISG Article 4 of CISG: This Convention governs only the formation of

24、 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 concerned with: (b) the effect which the contract may have on the property in the goods sold.,2020/10/7,C

25、hapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,23,4.1 Passing of Property,Article 30 of CISG The seller must deliver the goods, hand over any documents relating to them, and transfer the property in the goods, as required by the contract and this Convention.,2020/10/7,Chapter 2 ITL

26、Contract Law Unit 4 Transfer of Property and Risks,24,4.1 Passing of Property,5. Stipulations of International Trade Practices; Warsaw-Oxford Rules: At the moment of transferring the documents related;,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,25,4.2 Passing of Risk,

27、1. Stipulations in Incoterms: 2. Stipulations in CISG: 2.1 priority: agreement of the parties;,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,26,4.2 Passing of Risk,（2）If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass

28、 to the buyer until the goods are handed over to the carrier at that place.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,27,4.2 Passing of Risk,（3）The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the pas

29、sage of the risk.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,28,4.2 Passing of Risk,案例： 中国甲公司向澳大利亚乙公司出口一批服装，货物装船后，卖方取得已装船的清洁提单，尚未到银行议付货款，货物在运输途中遭遇火灾灭失，这时风险由谁承担？,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,29,4.2 Passing of Risk,2.3 the p

30、assing of risk in respect of goods sold in transit Article 68 of CISG: The risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,30,4.2 Passing of Risk,Nevertheless, if

31、at the time of the conclusion of the contract of sale, the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,31

32、,4.2 Passing of Risk,However, if the circumstances so indicate, the risk is assumed (承担) by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,32,4.2

33、 Passing of Risk,2.4 others: (if the seller is bound to deliver the goods to the buyer at his place of business): the risk passes to the buyer when he takes over the goods.,2020/10/7,Chapter 2 ITL Contract Law Unit 4 Transfer of Property and Risks,33,4.2 Passing of Risk,However, if the buyer is bound to take over the goods at a place other than a place of business of the seller, the risk passes when delivery is due and the buyer is aware of the fact that the goods are placed at his dispos