PERFORMANCEOFTHECONTRACTPPT_PPT英语课件下载.ppt

chapter4,perormance of the contract,presentation,:, , , , ,contents,passing of the property,english and foreign law,delivery of the goods,passing of the risk,1,2,3,4,introduction,in examining the disposal of good by the seller in performance of the contract of sale three issues must be considered; the delivery of the goods, the passing of the property in the goods the passing of the risk. normally in overseas sales, in particular on f.o.b and c.i.f.terms, these three phases do not necessarily coincide and should be clearly distinguished.,english and foreign sales law,foreign law,english law,others,if the contract of sale is governed by a foreign law, it should be borne in mind that the rule of that law may be very different from those of english law.,if a buyer wishes to reject goods which are not in accordance with the contract, he has to inform the seller of this intention within “a reasonable time”,the general adoption of the un convention on contracts for the international sale of goods (vienna, 1980) which came into operation on january 1,1988,would be of benefit to the international trading community. the united kingdom intends to adopt the convention.,foreign law,english law,others,the first issue which has to be examined when a dispute arises between the parties about the delivery of the good ,the passing of the property or the risk,is whether the dispute is to be considered under english law or the foreign law prevailing in the country of the buyer or some other law chosen by the parties.,delivery of the goods,text,constructive delivery,actual delivery,in cases in which no bill of lading is issued, delivery to the carrier for the purposes of transmission to the buyer is prima facie deemed to be delivery to the buyer.,the place and time of delivery are, in export sales, usually defined by the special trade terms which have been considered earlier.,according to section 61 of the 1979 act “delivery” means the “voluntary transfer of possession from one person to another”. the goods are normally delivered to the buyer when he, or his agent, acquires custody of them or is enabled to exercise control over them.,passing of the property,unascertained goods,ascertaineed goods,property,unascertained goods,ascertained goods,the act provides here two fundamental rules, namely that where the contract is for the sale of unascertained goods, the property does not pass to the buyer unless and until the goods are ascertained (s.16). where the contract is for the sale of specific or ascertained goods, the property passes at such time as the parties intend it to pass (s.17(1).,unascertained goods,first,where a buyer buys part of a bulk consignment, e.g. 10,000 tonnes ofcrude oil out of a consignment of 200,000 tonnes carried in a supertanker,two sets of circumstances,first,unascertained goods,second,where the buyer has paid the purchase price in advance and the seller becomes insolvent before delivery of the goods.,two sets of circumstances,second,unascertained goods,unascertained goods may become ascertained by a process of exhaustion and the property may pass in them. in the elafi,karlshamns olje fabriker,eastport navigation corporation,22,000-rotterdam-hamburg=6,000+500,unascertained goods,the rule in re wait was unsatisfactory. mustil j. qualified it in the elafi by admitting ascertainment by exhaustion but the facts will rarely allow the application of this qualification. a more equitable solution of the problem of undivided shares in bulk would have been for the law to provide that persons interested in the bulk should be regarded as owners in common pro rata their interest. the common ownership “rule” was adopted imaginatively by staughton j. in the ypatianna, a case concerned with a different issue.,crude oil,defendants,plaintiffs,property,passing of the property,unascertained goods,ascertaineed goods,property,unascertained goods,ascertained goods,the act provides here two fundamental rules, namely that where the contract is for the sale of unascertained goods, the property does not pass to the buyer unless and until the goods are ascertained (s.16). where the contract is for the sale of specific or ascertained goods, the property passes at such time as the parties intend it to pass (s.17(1).,ascertained goods,first,in the first circumstance, property does not pass to the buyer until the conditions imposed by the seller are satisfied, and that will even be the case where the goods have been delivered to the buyer, his agent, or a carrier for transmission to the buyer (s.19(1),two sets of circumstances,first,ascertained goods,second,the second circumstance arises where the seller has failed to make the passing of the property conditional and where neither of the legal presumptions provided by subsection (2) or (3) of section 19 can be invoked to remedy that failure.,two sets of circumstances,second,the retention of title clause,it has already been stated that english law allows a clause which provides that the seller retains the property in the goods sold until be receives the purchase price in cash. the clause makes the passing of property conditional on a specified event, usually the receipt of the price by the seller. it is clear from section 19(1) of the sale of goods act 1979 that the clause is effective and defeats the general presumption that the property passes when the bill of lading is transferred from the seller ( or this agent ) to the buyer ( or his agent ) retention of title clauses can be divided into two classes, simple and extended clauses.,the simple retention of title clause,this clause provides that the seller retains the property in the goods sold until a specified condition is satisfied, for example that be receives the purchase price in cash. this type of clause causes little difficulty in law but it is normally considered insufficient by the seller. the validity of the simple retention of title clause cannot be doubled because, as has already been observed. section 19(1) of the sale of goods act 1979 allows it expressly. this clause does not require registration as a charge under sections 395-399 of the companies act 1985. there exists a draft european convention on the simple reservation of title, sponsored by the council of europe in 1982 . this convention has not been finalised yet.,the extend retention of title clause,of greater practical importance is the extend retention of title clause but it raise difficult legal problems. two types of extended clauses are used but other clauses may also be devised. a combination of the feature of the two main types is sometimes found in practice,passing of the risk ,antiquated rule,more modern texts,passing of the risk ,passing of the risk ,passing of the risk ,passing of the risk ,provision of certificates,an exporter may required under the contract of sale to provide the buyer certificates of quality pre-shipment inspection certificates of origin the requirements may be in accordance with agreement of the parties or trade custom or mandatory provisions of the importers country.,certificates of quality,certificates is deferent with certificates of origin are used in the export trade from time to time. the parties may also agree that a certificate as to composition or quality should be given by the seller himself.,certificates of quality,certificates of quality two types: 1. certificates of standard quality a certificate of a public analyst or of a recognised engineering, shipbuilding or surveying classification organisation. 2. certificates of contract requirements certificates of quality in personam state sometimes that they shall be “final as to quality”.,certificates of inspection,a certificate of inspection is not identical to a certificate of a quality although the latter may be issued by an inspection organisation if the contract so provides. the minimum requirements for such a certificate are that the inspection has inspected the goods visually and found them to be in apparent good condition.,certificates of