进出口实务双语案例5

1 Chapter 10 International Payment and Settlement 8 1 Case 1 关于分批装运合同关于分批装运合同 案情介绍案情介绍 有一份合同 出售中国晶晶米 10000 吨 合同规定 自 2 月份开始 每月装船 1000 吨 分 10 批交货 卖方从 2 月份开始交货 但交至第五批大米时 大米品质发生霉变 不再适合人类食用 因而买方以此为理由 主张以后各批交货均应撤销 问题 问题 1 上述情况 买方有无这种权利 为什么 2 若此份合同交易的是一套大型成套机械设备 如果发现第五批品质不符 买方又有 无这种权利 为什么 3 若此笔交易是凭信用证方式付款 卖方第五批交货违反了交货期 买方有无这种权 利 为什么 Answer 1 The buyer has no rights to require cancellation of the further shipment because for contract with partial shipment each lot of shipment should be considered as a separate independent contract especially when the contracted products are the quality of rice under different shipment is not interdependent Considering the inferior quality of the fifth lot the buyer has the rights to lodge a claim for this shipment 2 If the contract product is a set of large size machinery equipment and the quality of any shipment does not match the contract requirement the buyer not has the rights to require cancellation of the further shipment but can also require to get back the already paid amount because the quality of each shipment of the machinery equipment is inter related 3 If the payment is made by L C and the seller violated the date of delivery terms the buyer may declare that starting from that date all the further shipment can be cancelled Because 2 according to UCP600 if one lot of the goods failed to be delivered within the L C stipulated date of each partial shipment the L C becomes invalid for this lot and further coming lots 回答 回答 1 买方没有这种权利 因为一个分批交货合同 各批交货都应该视为一个独立的合同 况且成交的是大米 品质没有相互依存的关系 但由于第五批大米确实品质不符 所 以能就这一批提出索赔 2 若成交的是一套大型机械设备 其中一批品质违反合同 那么买方不但可以宣告从这 一批开始的以后各批货物无效 而且还可以提出退回过去已交付的几批货款 因为一 套大型机械设备的分批交货 各批之间的品质是相关联的 3 若凭 L C 结汇 卖方违反的是交货期 那么买方可以宣告从这一批开始的以后各批均 告无效 因为 UCP600 规定信用证规定 在指定的期限分批装运 如其中一批未按 信用证规定的期限装运 则信用证对该期以及以后各期均告无效 8 2 Case 2 A Chinese exporter received an irrevocable L C from a foreign country this L C was advised and confirmed by a foreign bank located in china The Chinese company effected the shipment and was to present the documents for negotiation suddenly it was informed by the foreign bank in china that the opening bank had declared bankruptcy and thus that foreign bank in china claimed it had no obligation to negotiate the L C or to make payment for the L C However it could help the exporter to collect the payment back directly form the buyer under the instruction and authorization of the exporter Question What should the Chinese exporter do according to your opinion Explain the reasons briefly 中国出口企业收到国外开来的不可撤销信用证一份 由设在中国境内的某外资银行通 知并加保兑 中国出口企业在货物装运后 正打算将有关单据交银行议付时 忽然该外资 银行通知 由于开证银行已宣布破产 该行不承担对该信用证的议付或付款责任 但可接 受中国出口委托向买方直接收取货款的业务 问题 问题 对此 你认为中方应如何处理为好 简述理由 Answer 3 Our Chinese company should deliver the goods according to the stipulations and present the documents to that foreign bank in china for negotiation Because according to Uniform Customs and practice for documentary credits once the L C has been confirmed the confirming bank together with the issuing bank becomes the first payer and shoulders the responsibility to effect payment to the beneficiary without the agreement form the beneficiary the confirmation should not be cancelled So long as the beneficiary has presented the qualified documents to the confirming bank within the validity period the confirming bank must make the negotiation or payment 回答 回答 中方应该按规定交货并向该保兑外资银行交单 要求付款 因为根据 跟单信用证统 一惯例 信用证一经保兑 保兑行与开证行同为第一付款人 对受益人就要承担保证付款 的责任 未经受益人同意 该项保证不得撤销 只要受益人在信用证的有效期内将符合 L C 规定的单据递交保兑行 保兑行必须议付 付款 8 3 Case 3 Our company was negotiating a sales contract with a Japanese company on D P at sight basis the Japanese company replied that if we could like to accept D P at 90 days after sight through a collecting bank designated by the Japanese firm they would like to accept the offer Question Please analyse the start point of the Japanese company to put forward this requirement 中国某公司向日本某公司以 D P 见票即付方式推销某商品 对方答复 如中方接受 D P 见票后 90 天付款 并通过他指定的 A 银行代收则可接受 问题问题 试分析日方提出此项要求的出发点是什么 Answer The Japanese company required payment by D P at 90 days after sight because they would like to enjoy deferred payment to facilitate the cash flow They designated Bank A as collecting bank because maybe it was convenient for them to borrow the documents from Bank A to that they could realize economic benefit at an early date In general usance D P model the collecting 4 bank usually would not release the documents without being authorized This Japanese company proposed to have Bank A as collecting bank we could judge it was very possible that they had established financing relations and the company could obtain the documents in advance to make further use of the our fund 回答回答 日商提出将 D P 即期改为 90 天远期 很显然旨在推迟付款 以利其资金周转 而日 商指定 A 银行作为该批托收业务的代收行 则是为了便于向该银行借单 以便早日获取经 济利益 在一般的远期付款交单托收业务中 代收行在未经授权的情况下通常是不会轻易 同意付款人借单的 该日商所以提出通过 A 银行代收贷款的原因 定然是该商与 A 银行有 既定融资关系 从中可取得提前借单的便利 以达到进一步利用我方资金的目的 8 4 Case 4 A Chinese company imported some steel from a foreign company The goods were to be shipped in two lots payment was to be effected by two irrevocable sight L C established by Bank of China After the first shipment the seller presented the documents for negotiation and the negotiating bank after checking the documents effected the payment Later the Bank of China reimbursed the payment to the negotiating bank After receipt of the first shipment the importer found out that the quality of the goods was not in conformity with the contract stipulations and required the opening bank to refuse the payment for the second L C but was refused by the opening bank Question According to you is it correct for the opening bank to do so 中国某公司向外国某商进口一批钢材 货物分两批装运 支付方式为不可撤销即期信用 证 每批分别由中国银行开立一份信用证 第一批货物装运后 卖方在有效期内向银行交 单议付 依附行审单后 即向该商议付货款 随后中国银行对议付行做了偿付 中方在收 到第一批货物后 发现货物品质不符合同 因而要求开证行对第二份信用证项下的单据拒 绝付款 但遭到开证行拒绝 问题问题 你认为开证行这样做是否合理 5 Answer The opening bank and the right to refuse the requirement of the importer because the importer s request by nature was to cancel the L C while the irrevocable L C without the agreement of all parties cannot be cancelled When the documents were in line with the L C stipulations the opening bank must make payment no matter whether the goods were in consistent with the contract stipulations or not When there was quality discrepancy the importer should lodge a claim against the exporter directly 问题问题 开证行拒绝有理 因为中方要求开证行拒付 实质为撤销信用证 不可撤销信用证未 经有关当事人同意不得撤销 开证行在单据相符时必须付款 不管货物是否与合同相符 有关品质不符 进口方应直接向出口方索赔 8 5 Case 5 An export company in China received an irrevocable L C overseas which was notified and guaranteed by an alien bank s agency to our company When the export company was going to submit all the documents to the negotiating bank after the shipment they received a notice from that alien bank declaring that the issuing bank of the L C went bankrupt and therefore it failed to bear any responsibilities of payment or negotiation while nevertheless it can accept the settlement issue entrusted by us to the buyer Question What do you think to cope with this case and why 中国出口企业收到国外开来的不可撤销信用证一份 由设在中国境内的某外资银行通 知并加保兑 中国出口企业在货物装运后 正拟将有关单据交银行议付时 忽接该外资银 行通知 由于开征银行已宣布破产 该行不承担对该信用证的议付或付款责任 但可接受 中国出口公司委托向买方直接收取货款的业务 问题问题 对此 你认为中方应如何处理为好