国际商法CHAPTER.ppt

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SALES
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CHAPTER 10
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CHAPTER 10SALES
Topics for this chapter:
UN Convention on Contracts for the International Sale of Goods (CISG)
Transactions Covered in CISG
Contractual Issues Excluded from Coverage of CISG
Interpreting CISG
Interpreting Sales Contracts
Formation of the Contract
General Standards for Performance
Seller’s Obligations
The Passing of Risk
Remedies
Excuses for Nonperformance
UN Convention on Contracts for the International Sale of Goods
The CISG, adopted in 1980, incorporates rules from all the major legal systems.
It provides accepted substantive rules on which contracting parties, courts, and arbitrators may rely.
It has been ratified by 72 countries, but has not been ratified by Brazil, Japan, India, and the UK. Japan is expected to ratify it in 2008.
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Transactions Covered in CISG
CISG applies to contracts for international sale of goods.
The buyer and seller must have their place of business in different states. Either:
Both of the states must be contracting parties to the convention, or
The rules of private international law must lead to the application of the law of a contracting state.
A ratifying state may declare that it will apply CISG only when the buyer and seller are both from contracting states.
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Opting In and Out
Parties to a contract may exclude or modify CISG’s application by a choice-of-law clause.
A choice-of-law clause is a contractual provision that identifies the law to be applied in the event of a dispute over the terms or the performance of the contract.
”
Case 10-1: Asante Technologies, Inc. v. PMC-Sierra, Inc.
Issue: Does the . federal court have jurisdiction and does CISG apply to this contract?
The court determined the parties were from different states and CISG applies to contracts between such parties.
The parties did not opt out of the CISG and it was the controlling law.
Sales Defined
A sale is the exchange of goods for an amount of money or its equivalent.
The CISG does not define sales, but various sections present the same definition as many domestic laws, such as the . UCC, which defines a sale as the “passing of title from the seller to the buyer for a price.”
The goods processed through the Port of Vancouver, . are likely being shipped under contracts controlled by the CISG. Photo: Public domain / Image:
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Goods Defined
A good is a moveable, tangible object. For the purposes of the CISG, goods do not include things bought for personal use or at an auction or foreclosure sale, nor may they be ocean-going vessels or aircrafts.
These candles may or may not be a good under CISG depending upon whether they are sold to individual consumers or sold in bulk to a retailer for resale.
Photo: Used with permission of the author from personal archive.
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Mixed Sales
Seller of goods often furnishes services when delivering a product.
CISG looks upon mixed sales and service contracts as sales of goods, unless the preponderant part of the obligation” of the seller “consists in the supply of labor or other services.”
Contractual Issues Excluded From the Coverage of CISG
CISG only deals with:
The formation of the contract, and
The remedies available to the buyer and seller.
CISG excludes questions about:
the legality of the contract,
the competency of the parties,
the rights of third parties, and
liability for death or personal injury.
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