国际货物买卖与支付法.doc

国际货物买卖与支付法Law of International Sales and Finance教学大纲莫世健教授编写中国政法大学国际法学院2007年1月前言本课程为双语课程。英文授课，并使用英文原版教材。在必要时，授课老师将根据需要用中文进行辅助说明。一、 课程性质：选修课，向全校所有具有基本的英文实用水平，且愿意攻读此课程的本科生或其他符合学校设立的选课条件学生开放。二、 预选课程：选修本课前，不需要选择其他预选课程。三、 学习目的：1 学习掌握国际货物买卖的主要方式和主要法律规则；2 学习掌握国际货物买卖的主要支付方式和相关法律规则；3 了解国际贸易术语（Incoterms）主要规则；4 学习掌握联合国国际货物销售合同公约主要规则；5 学习和掌握UCP500规定的信用证使用规则；6 学会用比较方法研究联合国国际货物销售合同公约和中国合同法相关规则之间的异同；7 能够用学过的知识解决国际货物买卖和支付实际法律问题；8 提高国际经济法专业英语的实用能力。四、 教科书：莫世健 国际商法（International Commercial Law）,法制出版社和LexisNexis联合出版，2004年, 本提纲简称为Textbook。五、 课时：共36课时，每周2个课时。六、 考核方式： 100%期末考试，开卷。Chapter One: Introduction to law of international sales and finance1. An Overview This Chapter provides a brief introduction to law of international sales and finance. The law of international sales and finance is a special part of what is regarded as international commercial law or international economic law, although “international commercial law” and “international economic law” are not the same concept. See the Textbook, p 1.In broad terms, the law of international sales and fianc, as a special subject of study, deals with legal issues arising from international sale of goods, including the issues relating to the payment of contract price. Although payment of contract price is a necessary part of a contract of sale, the law governing payment aspect is different from the law applicable to the contract of sale itself. Therefore, there is a need to study the law on sales contract and law on the payment of contract price separately. This is why this subject is known as “Law of International Sales and Finance”. 2. Basic Concepts and Terms1) Why are the basic issues important?There are a number of basic and preliminary issues which are crucial for studying the subject of international sales and finance, such as the concept of international sales and finance, the sources of the law governing international sales and finance, and the special features of international sales and finance. These issues are basic and preliminary because one has to understand them well before one can really understands the law of international sales and finance. 2) Concept of law of international sales The term “law of international sales” refers to a body of international treaties, domestic law, commercial customs and practices which governs contracts for the international sale of goods. See the Textbook, p 1. In order to understand the concept adequately, it is necessary to point out that “sale” or “sales” refers to sale of goods only. Accordingly, the law on sale or supply of services is excluded from this subject of study. See the Textbook, p 3. 3) Concept of finance The term “finance” is used in a broad sense, referring to the payment aspect of international sales. The term “finance” is used because most means of payment involve “financing”. That is to say the payment arrangement itself is also a form of financing for the buyer who has an obligation to pay under a contract of sale and a finance provider which may be a bank or a financial institution. 4) Sources of law of international sales and finance International treaties, such as the United Nations Convention for the International Sale of Goods, (CISG); See the Textbook, p 4. Domestic laws, such as the Sale of Goods Act in common law jurisdictions, and the Contract Law of China; See the Textbook, p 6. Commercial customs, such as Incoterms, and UCP500. See the Textbook, p 6. 5) Complexity of the legal issues arising from international sales The same issue may be governed by different laws, thus conflict of laws or international private law is always one of essential issues concerning international sales. Whether or not a particular convention should apply must be determined according to the rules of the convention concerned. There is always a need to balance a formal law, such as a treaty or a domestic law, and a custom, and thus knowing the rules for the operation of customs is essential.Case study: Kay Minge v J W Oak Furniture Imports Ltd and William Heinhuis, decided 26 February 1998, Supreme Court of British ColumbiaFacts: The plaintiff was an antique collector in Norway. The defendants were from Canada. The parties agreed that in 1996 they entered into a contract for the sale of a 1932 Chrysler Imperial Le Baron Roadster by the defendants to the plaintiff for a price of US$124,800. But the defendants argued that the contract of sale also included the sale of a 1976 John Deere Crawler Loader Tractor Model 450 for a price of US$50,000. The plaintiff, who had paid US$124,800 to the defendants, denied the purchase of the tractor. The plaintiff asked the court to order the defendants to deliver up the car to him pending the trial in pursuance of rule46 of the court. The defendants contended that such an order would deprive them of their right under the Sale of Goods Act of Canada. Whether the court should enforce rule46 in the present case was the issue to be determined by the court.Decision: The court examined the issue and balanced the interests of the parties solely in the context of Canadian law. The court decided that the plaintiff would be entitled to receive the car pending the trial only if he deposited US$37,400 into the court as security, a sum equivalent to about half of the defendants counter-claim.3. Incoterms1) Meaning of incoterms“Incoterms” is not an English word. It is an abbreviation, probably stands for “international commercial terms”. Incoterms refers to a body of uniformed international commercial customs and their standard interpretations, codified by the ICC (International Chamber of Commerce). The particular meanings of Incoternms have evolved through time. See the Textbook, p 9. It current version is Incoterms 2000, consisting of 13 special trade terms, including EXW, FCA, FAS, FOB, CFR, CIF, CPT, CIP, DAF, DES, DEQ, DDU, and DDP. See the Textbook, p 11. 2) EXWEXW means that goods are delivered at the sellers premises. It is a term under which the seller undertakes narrowest liability. See the Textbook, pp 12-14. 3) FOBFOB stands for “free on board”. It is one of the common terms used by traders. See the Textbook, pp 19-20. 4) CIFCIF stands for “cost, insurance and freight”. It is the other most common term in international sale of goods. See the Textbook, pp 22-24. 5) The relationship between Incoterms and international trade Incoterms are not compulsory in the sense that they do not have the force of a treaty or a domestic law. Can an incoterm be modified to suit the needs of the buyer and the seller? 4. International trade and finance1) Finance is a necessary part of trade.2) Major forms of finance.Estimated teaching hours: 3 hours.Reading: the Textbook, pp 1-36.Chapter Two Domestic Law and International Sales1. Basic issues1) Domestic law is relevant to international sale;2) Domestic law must be understood in a particular context;3) Domestic law is the basis for a comparative study of the CISG2. Introduction to sale of goods law in common law jurisdictionsThe sale of goods law in common law jurisdictions are largely similar. They are all based on the same model of the Sale of Goods Act 1893 in the United Kingdom. The sale of goods law forms a special branch of law in common law jurisdictions in the sense that although contract law is largely case-law based in common law jurisdictions, the sale of good which is a type of contract is statute-based. Since the major principles of the sale of goods law are uniformed in common law jurisdictions, we can use the sale of goods law in one of the common law jurisdictions as an example for the purpose of study.3. Basic terms and conceptsBasic concepts are crucial for studying law. When we study the sale of goods law, the following basic concepts must be understood adequately:(Section 5 of the Sale of Goods Act 1923 （NSW)）5 Definitions(1) In this Act, unless the context or subject-matter otherwise requires: Action includes set-off and cross action pleaded by way of set-off. Buyer means a person who buys or agrees to buy goods. Contract of sale includes an agreement to sell as well as a sale. Court means the court, judge, arbitrator, or person before whom a legal proceeding is held or taken. Delivery means voluntary transfer of possession from one person to another.Document of title to goods includes any bill of lading, dock warrant, warehouse-keepers certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise either by endorsement or delivery, the possessor of the document to transfer or receive goods thereby represented. Fault means wrongful act or default. Future goods means goods to be manufactured or acquired by the seller after the making of the contract of sale. Goods include all chattels personal other than things in action and money. The term includes emblements and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. Plaintiff includes defendant counter-claiming or pleading a set-off or cross-action by way of set-off. Property means the general property in goods and not merely a special property. Quality of goods includes the state or condition. Sale includes a bargain and sale as well as a sale and delivery. Seller means a person who sells or agrees to sell goods. Sheriff includes any officer charged with enforcement of a writ of execution. Specific goods means goods identified and agreed upon at the time a contract of sale is made. Suit includes set-off and counter-claim. Warranty means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated. (2) A thing is deemed to be done in good faith within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not. (3) A person is deemed to be insolvent within the meaning of this Act who either has ceased to pay his or her debts in the ordinary course of business or cannot pay his or her debts as they become due, whether the person has committed an act of bankruptcy or not. (4) Goods are in a deliverable state within the meaning of this Act when they are in such a state that the buyer would under the contract be bound to take delivery of them. When studying these terms and concepts, there is always a need to refer back to what we have learnt in Chinese law to ascertain the similarities and differences, if any, between the common law and Chinese law.4. Conclusion of contract1) Forms of contract: oral or written2) Necessity and capacity: contract made by young children or mentally retard persons5. Passing of property1) Meaning: one of the major purposes of sale is to pass the property (title or ownership) from the seller to the buyer, “passing of property” as a terms refers to the rules concerning how and when the property is to be passed from the seller to the buyer. 2) Case study: Dennant v Skinner and Collom 1948 2 KB 164 Facts: The seller sold a car at an auction to the buyer, who signed a document to the effect that the title to the car was not to pass until full payment was made. The buyer gave a false name and address, as well as a bad cheque, which was subsequently dishonoured. He later sold the car to an innocent third party. The seller sought to recover the car from the third party.Decision: The court held that in this case both property and risk passed to the buyer at the fall of the hammer at the auction sale. This means that the property had passed to the buyer when the parties signed the document in question. In addition, it can be argued that the original sellers right in this case might have been defeated by the innocent third partys right.3) General principles Passing as agreed; Passing with delivery; SGA (NSW), s 2323 Rules for ascertaining intentionUnless 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. 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, or both, be postponed. 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 in a deliverable state, the property does not pass until such thing be done and the buyer has notice thereof.Rule 3. Where there is a contract for the sale of specific 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 such act or thing be done and the buyer has notice thereof. Rule 4. Where goods are delivered to the buyer on approval or on sale or return or other similar terms, the property therein passes to the buyer: (a) when the buyer signifies approval or acceptance to the seller, or does any other Act adopting the transaction, (b) if the buyer does not signify approval or acceptance to the seller, but retains the goods without giving notice of rejection, then if a time has been fixed for the return of the goods, on the expiration of such time, and if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact. Rule 5. (1) Where there is a contract for the sale of unascertained or future goods 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 thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made. (2) Where in pursuance of the contract the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer and does not reserve the right of disposal, the seller is deemed to have unconditionally appropriated the goods to the contract. 6. Passing of risks: general principles1) Risk and property prima facie pass together2) The party which caused delay in delivery is liable for loss incurred7. Implied terms that the seller is entitled to sell1) Owner 2) Authorized person8. Implied term that goods conform with the contract9. Implied term that goods are merchantable10. Implied term that goods are fit for purpose11. Implied term that goods conform with the sample12. Sellers remedies1) Right to withhold delivery2) Right to stop goods in transitu3) Right to sue for unpaid price4) Right to claim damages13. Buyers remedies1) Termination of contract2) Claim damagesEstimated teaching hours: 3 hours.Reading: the Textbook, pp 40-76.Chapter Three CISG and Its Application1. Brief history of the CISG2. Membership of the CISG3. Application of the CISG1) Article 1 of the CISG states as follows: (1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States: (a) when the States are Contracting States; or (b) when the rules of private international law lead to the application of the law of a Contracting State. (2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract. (3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention. Case study: A Hong Kong company and a US company signed a number of agreements to set up a Disney Fun Park in Hong Kong. One of the agreements states that the US company was responsible for providing all equipment, technologies, designs, as well as the installation of the equipment and the Hong Kong company was responsible for providing land. The agreement chose the CISG as the governing law. After the installation of the equipment, the Hong Kong company suspected that one of the entertainment machines had infringed its IP. Comment on the case.2) Analysis of the requirements in Article 1 Requirement One: parties have places of business in different countries The CISG is applicable according to two alternative conditions: n Two countries are CISG members; orn As determined by the governing rules of private international law.4. Exceptions affecting CISG application1) Exception CISG, arts 2-62) based on nature of transaction3) Exception based on nature of legal issue4) Exception based on art 6 (modification of art 6)l CISG art 6l CISG art 12l Express exclusion or implicit exclusion Tutorial Question: Chartered Motor (HK) Co Ltd sold two motor bikes to Nexo Company under a contract concluded in Macau. The contract stipulates that the buyer pays 50% of the purchase price in deposit and pays the remaining 50% of the price 180 days after the delivery of the bikes in Shenzhen to th