国际贸易法Chapter21briefintroductionofcontrac

1、Chapter 2 ITL Contract LawsThis chapter is very very very important!12/9/20211Chapter 2 ITL Contract Laws The Relevant Rules Formation of a Contract Validity and Invalidity of a Contract Performing a Contract Risk and Property Breaches and Remedieseasily confused!12/9/20212Chapter 2 ITL Contract Law

2、sUnit 1 Brief Introduction of the Relevant Laws1.1 The Relevant National Laws 1.2 The Relevant International Conventions 1.3 Relevant International Customs 12/9/20213Chapter 2 ITL Contract Laws1.1 The Relevant National Laws 1. The Law Systems the civil law system1 the Anglo-American law system2 11 民

3、法法系民法法系 22 英美法系英美法系 “Law system”: a group of states or areas that have similar legal traditions. “legal System”1 : a states department-law system2 1 法律体系法律体系 2 部门法体系部门法体系12/9/20214Chapter 2 ITL Contract Laws1.1 The Relevant National Laws 1. The Law Systems (1) The Civil Law System /continental law s

4、ystem2, / Roman law system3 has its roots in Roman law4, Canon law5 (Christian, especially Catholic law) and the Enlightenment6, alongside influences from other religious laws such as Islamic law. The legal systems in many civil law countries are based around one or several codes of law, i.e. the Fr

5、ench Civil Code7, the German Brgerliches Gesetzbuch8 and the Swiss Civil Code9. 11 民法法系民法法系22 大陆法系大陆法系33 罗马罗马日尔曼法系日尔曼法系12/9/20215Chapter 2 ITL Contract Laws1.1 The Relevant National Laws 1. The Law Systems(2) The Anglo-American Law System/ Anglo-American law system1/ English Law system2, / precedent

6、 law system3 is a general term of those countries inherited the United Kingdoms mid ages law tradition and established their legal system on the basis of the English common law.1 英美法系英美法系2 英国法系英国法系3 判例法法系判例法法系12/9/20216Chapter 2 ITL Contract Laws1.1 The Relevant National Laws 1. The Law Systems(3) M

7、ain different between the two law systems legal origin legal procedure legal classification 12/9/20217Chapter 2 ITL Contract LawsCivil law system Common law systemsourcestatue law制定法制定法, Judicial precedent司司法判例法判例 is not includedstatue law and Judicial precedent StructureCodes slip law单行法单行法 and pre

8、cedent lawJudges functionOnly use laws to judge Use laws and make laws litigation ProcedureNon-adversarial Proceeding 纠问式纠问式Adversary proceeding对抗式对抗式12/9/20218Chapter 2 ITL Contract Laws1.1 The Relevant National Laws 12/9/20219Chapter 2 ITL Contract Laws1.1 The Relevant National Laws (a)12/9/202110

9、Chapter 2 ITL Contract Laws1.1 The Relevant National Laws 2. The Chinese Contract Law (1) Brief Introduction of the Chinese Contract Law(2) The General Rule of the Civil Law nContract Law has priority12/9/202111Chapter 2 ITL Contract Laws1.2 The Relevant International Conventions The CISG is a popul

10、ar convention concerning international sales of goods. 1. The Drafting of the CISG 2. The Outline of Chapter of CISG 3. China and CISG 4. Application Scope of CISG 12/9/202112Chapter 2 ITL Contract Laws1.2 The Relevant International Conventions 12/9/202113Chapter 2 ITL Contract Laws1.2 The Relevant

11、International Conventions 2. The Outline of Chapter of CISG PREAMBLEPART I. Sphere of application and general provisions CHAPTER 1. Sphere of application CHAPTER II. General provisionsPART II. Formation of the contractPART III. Sale of goods CHAPTER I. General provisions CHAPTER II. Obligations of t

12、he seller CHAPTER III. Obligations of the buyer CHAPTER IV. Passing of risk CHAPTER V. Provisions common to the obligations of the seller and of the buyerPART IV. Final provisions12/9/202114Chapter 2 ITL Contract Laws1.2 The Relevant International Conventions 3. China and CISG Contracting sate On 11

13、 December 1986. Two reservation1 (1) Regarding applicable scope of CISG, China agrees that CISG shall be limitedly between the contracting countries (2) Regarding the form of a contract, China agrees that a contract of sale is necessarily in written form or by written proof. 11 保留保留12/9/202115Chapte

14、r 2 ITL Contract Laws1.2 The Relevant International Conventions 4. Application Scope of CISG (1) What is “international” in CISG? When studying International Trade Practice, how did you define “international trade”?12/9/202116Chapter 2 ITL Contract Laws1.2 The Relevant International Conventions 4. A

15、pplication Scope of CISG (1) What is “international” in CISG? International:Place of Business (single standard)12/9/202117Chapter 2 ITL Contract Laws1.2 The Relevant International Conventions 4. Application Scope of CISG (1) What is “international” in CISG? multiple standard多重标准多重标准. EG:UKs 1977 Unf

16、air Contract Terms Act: 1）when a contract was concluded, the goods was transported from one country to another; 2）when offer and acceptance were done in different countries； 3）when the goods must be delivered to the other country but not the mentioned above.12/9/202118Chapter 2 ITL Contract LawsDISC

17、USS:What is Place of Business(PoB)?What about if more than one or no PoB? Article 10: if more than one, the one is that has the closest relationship to the contract and its performance, known by the parties at any time before or at the conclusion of the contract; if no, reference is to be made to hi

18、s habitual residence.12/9/202119Chapter 2 ITL Contract LawsCase nAn Austrian company, plaintiff, entered into a contract for the purchase and transport of sprits to Russia with the Swiss branch of a company that had its headquarters in Liechtenstein. The contract was never performed because a disput

19、e arose among the parties regarding the mode of transport and the final date of performance. The Austrian buyer sued the Swiss seller for repayment of an advance payment, while the defendant claimed damages for breach of contract.12/9/202120Chapter 2 ITL Contract LawsnThe court held that, even thoug

20、h Liechtenstein was not a contracting State, the Convention was applicable because the Swiss branch, not the Liechtenstein headquarters, was the place of business that had the closest relationship to the contract and its performance. CISG art. 1, 1012/9/202121Chapter 2 ITL Contract Laws1.2 The Relev

21、ant International Conventions 4. Application Scope of CISG (2) What is the scope of “goods” in CISG? Excludes:(a) for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any

22、 such use; (b) By auction; (c) On execution or otherwise by authority of law; (d) Of stocks1, shares2, investment securities3, negotiable instruments4 or money; (e) Of ships, vessels, hovercraft or aircraft; (f) Of electricity. 1股票 2股份 3投资债券 4流通票据12/9/202122Chapter 2 ITL Contract Laws1.2 The Relevan

23、t International Conventions 4. Application Scope of CISG (3) Sales： 1) must transfer the property; 2) must be paid in money.Exclude: private and house use exchange, execution, trade of service and 三来一补三来一补.12/9/202123Chapter 2 ITL Contract Laws1.2 The Relevant International Conventions 4. Applicatio

24、n Scope of CISG (4) Contract：not concerned with: (A) the validity of the contract or of any of its provisions or of any usage; (B) the effect which the contract may have on the property in the goods sold. (C) The liability of the seller for death or personal injury caused by the goods to any person.

25、 12/9/202124Chapter 2 ITL Contract LawsCase nThe defendants, two Swiss sellers of computer software, attached the Swiss bank accounts of the plaintiff, a French buyer, and asked for specific performance of the sale of software contract, which had been declared avoided by the plaintiff.nThe court rul

26、ed under Swiss law in favor of the defendants.nBecause CISG enter into force in SW on 1 March 1991, while the contract was concluded on 21 Sep. 1990. Pursuant to CISG art. 100, CISG only apply to contracts concluded on or after 1 March 1991.12/9/202125Chapter 2 ITL Contract LawsCase 2nThe defendant,

27、 an Austrian seller of imported Italian cars, sold a Lamborghini Countach to the plaintiff, a Swiss buyer. The seller, however, could not deliver the car to the buyer. The court held that since that car was purchased for personal use, in accordance with its article 2(a), the CISG was not applicable

28、to the case. Netherless, the court stated that the CISG could have been applied to the case if the fact that the seller “neither knew nor ought to have known that the goods were bought for any such use” had been proved by the seller.12/9/202126Chapter 2 ITL Contract Laws1.3 Relevant International Cu

29、stoms 1. Principles of International Commercial Contracts(PICC)2. INCOTERMS 2000 12/9/202127Chapter 2 ITL Contract Laws1.3 Relevant International Customs 1. PICC(1) The Drafting of PICCthe Governing Council of the International Institute for the Unification of Private Law (UNIDROIT) published the Pr

30、inciples in 1994. 12/9/202128Chapter 2 ITL Contract Laws1.3 Relevant International Customs 1. PICC(2) The contents of PICC after revision in 2004: preamble General Provisions (Chapter 1); Manner of Formation (Chapter 2); Validity (Chapter 3); Interpretation (Chapter 4); Content (Chapter 5); Performa

31、nce (Chapter 6); Non-performance (Chapter 7); Set-off (Chapter 8); Assignment of rights and contract (Chapter 9) : Limitation periods (Chapter 10).12/9/202129Chapter 2 ITL Contract Laws1.3 Relevant International Customs 1. PICC(3) Comparison with CISG 12/9/202130Chapter 2 ITL Contract Laws1.3 Releva

32、nt International Customs 1. PICC(3) Comparison with CISG 12/9/202131Chapter 2 ITL Contract Laws1.3 Relevant International Customs 1. PICC(3) Comparison with CISG 12/9/202132Chapter 2 ITL Contract Laws1.3 Relevant International Customs 2. Incoterms2000(1) Brief Introduction (2) Why Incoterms? (3) Wha

33、t do they cover? (4) What are the 13 Incoterms? You Tell Me! 12/9/202133Chapter 2 ITL Contract Laws1.3 Relevant International Customs Concept and Role of Trade terms Concept: Trade terms/price terms; delivery terms: refer to some certain terms which are commonly and widely used in international busi

34、ness, these terms served as a shorthand method of expressing certain meanings in the area of goods shipping and risks allocating.12/9/202134Chapter 2 ITL Contract Laws1.3 Relevant International CustomsRole: By using these certain trade terms, the parties to a sale contract can express their agreemen

35、t immediately with little confusion and with little language problems. 12/9/202135Chapter 2 ITL Contract Laws1.3 Relevant International CustomsIncoterms 2000 include thirteen trade terms, according to relative responsibilities of each party and to the point at which the risk of loss passed from the

36、seller to buyer, these 13 terms are classified into 4 groups, namely E terms, F terms, C terms and D terms.12/9/202136Chapter 2 ITL Contract Laws1.3 Relevant International CustomsGroup E: EXWGroup F: FCA (free carrier) FOB (free on board) FAS (free alongside ship)Group C: CFR (Cost and Freight) CIF (cost, insurance and freight) 12/9/202137Chapter 2