国际商法案例分析1（英文） .doc

cases in international commercial law1. on january 1，sel1er sent a letter to buyer offering to se11 to buyer 5，000 ornaments for $25 apiece. the letter also stated: “this offer is binding and irrevocable until february l.” on january 5, prior to buyers receipt of the letter, seller called buyer on the telephone and left the following message on the answering machine at buyers place of business: “ignore my letter of january 1. i have decided to withdraw the offer contained in it.” on january 7 , after listening to her answering machine and reading the letter that arrived that same day, buyer sent seller the following telegram: “i accept your offer of january 1.”q: is there a contract under cisg?2. on december 1, seller sent to buyer an offer to sell 5,000 ornaments to buyer for $25 apiece. the offer stated: “the offer will remain open until december31.” on december 10, buyer answered: “the price is too high; i dont accept your offer.” then, on december 15, buyer changed his mind and sent a telegram stating: “i accept your december 1 offer after all.” seller replied: “your acceptance is too late, since you already reject the offer.” in turn, buyer answered: “the acceptance is good, since you promised to keep your offer open until december 31.” q: is there a contract under the cisg?3. buyer received a letter in her mail on january 1 offering to sell buyer 5,000 ornaments $20 apiece. sellers letter closed with the following statement: “i know that this offer is so attractive that i will assume that you accept it unless i hear otherwise by january 31.” buyer did not reply. seller shipped the ornaments on february 1.q: what are buyers responsibilities under cisg?4. seller and buyer entered into a written contract for the manufacture by seller of l0,000 ornaments of a design specified by buyer and set out in the contract. the contract also provided: “this contract may only be modified in a writing signed by both parties.” before seller had begun work on the ornaments, buyer and seller agreed by telephone to a change in the specifications for 2,500 of the ornaments. seller then produced and delivered the 2,500 ornaments as specified. buyer refused to accept them because they did not conform to the specifications in the original contract.q: assuming cisg applies, who breached?5. buyer and seller entered into a contract governed by cisg for seller to deliver a sophisticated computer to buyer by january 1. seller was late in delivering the machine, so buyer wired seller on january 2: “anxious to take delivery of the computer. hope that it arrives by february 1.” seller delivers the computer on february 5, but buyer refuses to accept it and declares that the contract is avoided because seller failed to hand over the computer before the february 1 date specified in the january 2 telegram. both buyer and seller agree that there has not been a fundamental breach.q: is buyer able to avoid the contract under these circumstances?6. dealer in the united states owned a cargo of 10,000 barrels of oil that had been shipped from mexico on january 1 for arrival in the united states on february 1. on january 15, dealer informed buyer that the oil was on the transit and they concluded a contract. on arrival, inspection showed that the oil had been contaminated by seawater at some indeterminate time during the voyage. q: assuming cisg applies, who bears the risk?7. seller agreed to deliver three software programs to buyer that are specially designed for buyers business. the first was to be delivered in january the second in february, the third in march, the program delivered in january worked fine, but the one delivered in february was defective. it not only failed to function properly, it also made the other two programs effectively worthless. seller was unable to correct the defect, and no suitable replacement could be found from another supplier. q: what cisg remedies are available for buyer?8. stan, a manager of an english computer company, returns home from work to discover his house surrounded be police. his wife is being held hostage and threatened by her captor. stan pleads with the police to rescue her and offers $5000 to the policeman who brings her uninjured to safety. a police officer, peter, eventually talks the captor into releasing the woman hostage and he leads the woman to safety. when peter goes to collect his bonus, stan says, “thank you very much but i have no intention of paying.” q: would peter succeed in a court action against stan?9. a (an american company) entered into a contract with b (a japanese company), which was under the cisg. the contract provides that a delivers 1000 personal computer housings by december 1 to b in tokyo, for a total price of $50000. on july 1, a faxed b that due to a rise in prices they could not deliver for less than $60000. b replied that it would insist that a deliver at the original price. then a refused to delivery the goods under the contract. from july 1 through september, b could have bought the housing from other suppliers for $55000 for december 1 delivery. on december 1, b covered and purchased the housing for $64000 for delivery on february 1. because of the delay until february 1 b suffered additional damages $2000. q: please discuss the behavior of a. what is the measure of bs damages? was b under any duty to mitigate damages? why or why not? 10. seller agreed to ship 10,000 tons of potatoes fob tacoma, washington, to buyer in japan. buyer designated the ss russet to take delivery at pier 7 in tacoma. on the agreed date for delivery seller delivered the potatoes to pier 7, but the ship was not at the pier. because another ship using the pier was slow in loading, the russet had to anchor at a mooring buoy in the harbor and seller had to arrange for a lighter to transport the potatoes in containers to the ship. the lighter tied up alongside the russet and a cable from the ships boom was attached to the first container. as the container began to cross the ships rail the cable snapped. the container then fell on the rail, teetered back and forth for awhile, and finally crashed down the side of the ship and capsized the lighter. all of the potatoes were dumped into the sea. buyer now sues seller for failure to make delivery.q: is seller liable? suppose the contract had been fas tacoma. would seller be liable?11. seller in sydney, australia, agreed to ship goods on or before december 31 under a cif sydney contract to buyer in honolulu. the seller was unable to assemble the goods for delivery in time to reach the ship in sydney and had to transship the goods by rail to melbourne, where the ship was taking on goods on january 3, seller did load the goods aboard railway cars in sydney on december 29 and received a bill of lading from the rail-way company on that date. seller later obtained a bill of lading from the ship, and together with an invoice and a marine insurance policy, tendered both bills of lading to buyer. buyer refused to accept the documents or to pay seller. seller sues to enforce the contract. q: will seller win?12. seller in bombay sells 5,000 bales of cotton to buyer, c &f (incoterms l990) liverpool. seller transports the cotton to the bombay harbor and to the ship designated by buyer, the ss allthumbs. due to an error in counting, there are only 4,987 bales loaded. the ships bill of lading, however, shows a quantity of 5,000 bales. seller then signs over the bill of lading to buyer in exchange for payment in full for the cotton. when the allthumbs arrives in liverpool the quantity error is discovered, and buyer sues the ship for the lost value of the missing bales. q: is the ship liable? would it matter if the seller admitted that the error was not the ships fault, but that of the seller?13. new york merchandising company (nymco) imported foods produced by c-art in hong kong. the goods were shipped on the hong kong island lines (carrier). the parties prior course of dealing hand been for the carrier to release the goods to nymco on its presentation of a “bank guarantee”. these bank guarantees released the carrier from liability for any misdelivery. on this occasion, however, the carrier released the goods upon nymcos corporate guarantee of payment. soon thereafter, nymco filed for bankruptcy. c-art sued the carrier to recover the money owed for the goods. the carrier argued that it was not liable for misdelivery because nymco has good title to the goods from the time they were shipped in hong kong. q: do you agree with this argument？the carrier also claims that the bills of lading are not valid because the importer nymco was insolvent. what is wrong with the argument?14. x (a chinese company) concluded, acting as an agent of z (a chinese factory), contract with y (an american company) to purchase ten machines. upon the arrival of the machines in qingdao, the carrier handed over the machines to z who showed certificate by a municipal organ, failing to make the delivery to x who still held the bill of lading but (the relevant businessman) was away in guangzhou at a meeting. x sued z for damages. q: who should x sue for damages? has the property of the goods passed to z? was the carrier liable for the damage? what liabilities of x?15. ms. v, a wealthy art collector in country w, is interested in buying a rare painting from mr. y in country z. both parties agree that the price is to be determined by an independent appraiser. v informs y that she will send her agent, x, with a bill of exchange to collect the painting. v draws an at-sight bill payable to v but leaves the amount blank. she gives the bill to x and instructs him to deliver it to y. without authority x fills in the amount for 1 mil-lion us dollars and presents it to y, who has, in the meantime, received the appraisal. the appraised price is $750,000. x tells y that ms. v had made the bill out for $1 million to insure that it would exceed the appraisal price, and that v has instructed x to return with the painting and the difference in cash. y gives x the painting and $250,000. x delivers the painting, but then disappears with the $250,000 in cash. when v discovers what has happened, she instructs the payer named on the bill stop payment on her instrument and offers to pay y $750,000 for the painting. q: is the bill of exchange is an effective instrument? why？if it is, when y presents the bill to the named payer, he insists that he must be paid the bills full face value of $1 million. is y correct? if it isnt, what measures can y take?16. a has signed a contract to buy 10,000 “new coffee percolators in the manufacturers original packaging, with standard manufacturers warranty,” form b. b agrees to ship the percolators cif, and a agrees to, make payment by means of an irrevocable letter of credit. a contracted c bank, with issues a letter of credit promising to pay a bill of exchange issued by and payable to b when it is accompanied by an invoice and a clean, on board bill of lading for “10000 new coffee percolators in the manufacturers original packaging, with standard manufacturers warranty.” a learns from c, a competitor of b, that even though b had obtained actual bills of identifying the goods as 10,000 “new coffee percolators in the manufacturers original packaging, with standard manufacturers warranty,” the percolators were actually used and inoperable.q: (1) is anything that a can do?(2) would it make any different if a had positive proof that a fraud had been perpetrated?(3) would it make any different if c bank had confirmed the letter of credit and accepted the bill of exchange before a got the positive proof?17.