国际贸易法复习简答

1、简答（6选3）1.有效承诺要件Legal requirements for a valid acceptance Para93-94 (1) To be made by the offeree/offerees Since an offer is addressed to specific persons, only those specific persons who have received the offer are entitled to make an acceptance accordingly. Assents made by any person other than the

2、 offerees are invalid.（1）是由受要约人/人了既然一个提议是针对特定的人，只有那些接受了该提议的特定的人有权作出相应的接受。同意由任何人以外的其他人是无效的。 (2) To be made within the time period specified in the offer Article 18 of CISG provides:” An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or,

3、 if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise.” Article 20 of CISG p

4、rovides for rules on how to calculate a period for acceptance. “(1) A period of time for acceptance fixed by the offeror in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date sho

5、wn on the envelope. A period of time for acceptance fixed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree. (2) Official holidays or non-business days occurring during the period for acceptance are incl

6、uded in calculating the period. However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or a non-business day at the place of business of the offeror, the period is extended until the first busin

7、ess day which follows.”（2）在要约指明的时间内作出公约第18条规定：“如果表示同意不到达要约人的时间内，他有固定的或接受不是有效的，如果没有时间是固定的，在合理的时间内，由于考虑到交易的情况，包括聘用要约的通信手段的快速性。口头要约必须立即接受，除非情况表明另有说明。”公约第20规定的规则如何计算一个承诺期限。“（1）一段用电报或信件通知固定接收时间开始运行时刻从电报交发或从信上或显示日期，如果没有这样的日期显示，从信封上所载日期。一段由要约人接受时间的固定电话，电传或其它快速通讯手段，开始从要约到达受要约人。（2）在计算期间内发生的法定假日或非营业日包括在计算期间内。

8、但是，如果接受不到被送到发盘人的期最后一天的地址由于当天适逢法定假日或在要约人的非营业日，期限顺延至下一个营业日。” (3) To be unconditional A contract comes into existence once the offer is effectively accepted by the offeree. But if the acceptance is conditonal, the new or revised conditions proposed by the offeree may be unacceptable to the offeror. In

9、such cases, the minds of the parties can not meet together and no contract can be concluded. For a contract to be concluded, the acceptance must be unconditional. So in paragraph 1 of article 19 of CISG stipulates:” A reply to an offer which purports to be an acceptance but contains additions, limit

10、ations or other modifications is a rejection of the offer and constitutes a counter-offer.” At the same time, CISG regards an acceptance with certain non-material modifications of and additions to the offer as an effective acceptance under certain conditions. Paragraphs 2 and 3 of Article 19 of CISG

11、 says: “(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy （difference） or dispatches

12、 a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. (3) Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of del

13、ivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.” （3）是无条件的合同生效要约被受要约人有效接受。但如果接受条件，新的或修改的条件下提出的要约是要约人接受。在这种情况下，双方的头脑不能聚在一起，没有合同可以得出结论。对订立合同的，接受必须是无条件的。所以在公约19条1款规定：“对发盘表示接受的答复，但载有添加、限制或其他修改是对要约的拒绝，并构成还价。”同

14、时，CISG将接受某些非物质性的修改和补充，以提供在特定条件下的一个有效的接受。公约的19条2和3款的规定：“（2）然而，答复的提议，表示接受但载有添加或不同条件在实质上并不改变要约的条款构成承诺，除非要约人毫不迟延地、对象、差异（差异）口服或书面声明。如果他不这样做，合同条款是要约的条款，在接受中包含的修改。（3）除其他外，对货物的价格、付款、质量和数量、交货地点和交货时间、一方对另一方的责任范围或争端的解决，被认为是在实质上改变要约的条款。 (4) To be made in proper manners According to paragraph 1, article 18 of CI

15、SG, a statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. First, the offeree undoubtedly can make an acceptance by way of making a statement either in writing or orally. Second. The offeree can make an acceptance by performance of an act in certain circu

16、mstances. Paragraph 3 of article 18 further stipulates that, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of

17、 the price, without notice to the offeror, the acceptance is effective at the moment the act is performed. But the offer, a trade usage or the practice of the parties must make it clear that the offeree is not required to notify the offeror. Silence or inactivity in itself does not constitute an acc

18、eptance. For example, if a seller sends a buyer an offer which says “I know that this is such a good idea that I will assume that you have accepted unless I hear otherwise.” The fact that the buyer doesnt respond will not create a contract since the seller attempted to force the buyer to do somethin

19、g even if the buyer is not interested in the offer. But this is not an absolute rules. In certain circumstances, silence or inactivity may still create a contract. For example, a seller sends a buyer an invitation to negotiate which says ”Unless you hear otherwise from me within 3 days after I recei

20、ve your order, I will deliver the welding guns which you need at $100 each.” In this case, silence of the seller, also the offeree, will constitute an acceptance since it is he himself assumes the duty to respond voluntarily.（4）以适当的方式作出根据公约18条1款，或作出其他行为受要约人同意要约的意思表示是承诺声明。第一，受要约人无疑会使接受通过声明，无论是书面或口头。二

21、。受要约人可以通过在特定情况下的行为表现的认可。18条3款还规定，如果根据要约或由于实践中当事人本身或使用之间成立，受要约人可以通过一个行动表示同意，如涉及货物或支付价款的调度，不通知要约人该承诺有效，此刻的行为进行。但是价格，贸易惯例或当事人实践必须明确，受要约人不需要通知要约人。沉默或不行动本身不构成接受。例如，如果一个卖家发送一个买方的报价，说：“我知道这是一个好主意，我会假设你已经接受，除非我听到否则”的事实，买方不响应不会创建一个合同，因为卖方试图迫使买方做一些，即使买方不感兴趣的要约。但这并不是一个绝对的规则。在某些情况下，沉默或不行动可能仍然可以创造一个合同。例如，卖家发送一个买

22、方进行谈判的邀请，并说：“除非你听到否则我收到您的订单后3天内，我将把焊枪，你需要在每个100美元。”在这种情况下，卖方的沉默，也受要约人，将构成一个接受它他自己承担的义务主动回应。2.损害赔偿原则 Damage Para115-117Damages are the most commonly used remedies by both sellers and buyers in international trades. The basic rule on damages in the convention is common to the civil law and common law

23、worlds. Article 74 states: “Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the ti

24、me of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.” This provision establishes two general rules on damages. The first one is that both direct and indirect losses suffered by t

25、he injured party are to be recovered. The second one is that the breaching party is only liable for the damage that he foresaw or ought to have foreseen at the time of the conclusion of the contract. This rule is called “foreseeablity test”. The convention adopts two different rules to calculate the

26、 damages in articles 75 and 76. Article 75 says: “If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the co

27、ntract price and the price in the substitute transaction as well as any further damages recoverable under article 74.” In accordance with this provision, if the avoiding party has entered into a good-faith substitute contract with another personthe buyer has obtained substitute goods or the seller r

28、esold out the goods, damages are measured by the difference between the prices of the original contract and the price of the substitute contract. Article 76 says: “(1) If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase

29、 or resale under article 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under article 74. If, however, the party claiming damages has avoided the contract after taking over the goods, the cu

30、rrent price at the time of such taking over shall be applied instead of the current price at the time of avoidance. (2) For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there is no current pri

31、ce at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods.” According to this article, if the avoiding party did not enter into a substitute contract with another person, the damages are calculated

32、 by taking the difference between the contract price and the current price at the place of delivery at the time of avoidance. No matter which of the two rules on damages applies, the party claiming damages is under an obligation to take reasonable actions to minimize the loss. Otherwise, the other p

33、arty may seek a proportionate reduction in the damages. Article 77 of the convention stipulates: “A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take s

34、uch measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated.”损害赔偿是国际贸易中买卖双方最常用的补救措施。公约中的损害赔偿的基本原则是英美法系和英美法系的共同原则。第74条规定：“一方违反合同的损害赔偿等于损失，包括利润损失，另一方因违约而遭受损失。这种损害赔偿不得超过损失，违约方预见或应当在订立合同时可以预见的，在事实和问题他当时已知道或理应知道的光，作为合同违约可能的后果。”本规定建立了两种

35、损害赔偿的一般规则。第一个是，受害方所遭受的直接和间接损失是要恢复的。二是违约方只承担损失，他预见到或理应在订立合同时可以预见的。这个规律叫做“可预见性测试”。公约采用了两种不同的规则来计算第76和75条款中的损害赔偿。75条说：“如果合同被宣告无效，如果在一个合理的方式在避让后一段合理时间内，买方购买替代货物，或者卖方转售货物，要求损害赔偿的一方可以替代交易价格与合同价格之间的差额以及任何进一步的损害赔偿74条收回。”按照这一规定，如果避免党已经进入了一个诚信替代合同与另一人买方取得替代货物或卖方转售货物损坏了，由原来的合同价格和替代合同价格之间的差额计量。76条说：“（1）如果合同被避免，

36、并有一个对货物的价格，该方声称损害赔偿可能，如果他没有作出购买或转售根据第75条，恢复之间的价格固定的合同和目前的价格在避免的时间，以及任何进一步的损害赔偿根据第74条。然而，如果甲方在接管货物后，避免了损害赔偿的合同，在这种接管时的现行价格应适用，而不是在回避时的当前价格。（2）为了上一段的目的，目前的价格是在交货地点的价格，或者，如果没有目前的价格在那个地方，在其他地方的价格作为一个合理的替代品，作适当的津贴，在运输成本的差异。根据这篇文章，如果避免方没有进入另一个人的替代合同，损害赔偿计算通过采取合同价格和目前的价格在交货地点之间的差异，避免。无论哪一种规则对损害赔偿适用，主张损害赔偿的

37、当事人都有义务采取合理的行动，以尽量减少损失。否则，另一方可寻求相应的损害赔偿。公约77条规定：“当事人一方违反合同的，必须采取合理的措施，在减轻损失的情况下，包括利润损失，造成违约。如果他没有采取这样的措施，违约方可能会要求减少损失应该得到减轻的损失金额。”3.维斯比规则对海牙规则的主要修改 Para166The scope of application is widened The Hague Rules are only applied to bills of lading issued in contracting states. The Visby Rules apply to ev

38、ery bill of lading relating to the carriage of goods between ports in two different States if (a) the bill of lading is issued in a contracting state, or (b) the carriage is from a port in a contracting state, or (c) the contract contained in or evidenced by the bill of lading provides that these Ru

39、les or legislation of any state giving effect to them are to govern the contract.扩大了应用范围海牙规则只适用于在缔约国签发的提单。维斯比规则适用于提单在不同国家的港口之间有关的货物运输的每一项（一）如果提单在一个缔约国签发的，或（b）运输从一个缔约国的港口，或（c）合同中或通过法案提单证明的规定，这些规定或生效的任何国家的立法都是他们的管理合同。 The evidential effect of bills of lading is further clarifiedThe Hague Rules only pr

40、ovide that a bill of lading shall be prima facie evidence of the contract of carriage of the goods, without specifying the evidential effect when it is negotiated to a third person. The Visby Rules add that proof to the contrary shall not be admissible when the bill of lading has been transferred to

41、 a third party acting in good faith. This provision makes clear that the bill of lading becomes conclusive evidence of the terms of the contract of carriage once it is negotiated to a good-faith third party.提单的证据效力进一步阐明海牙规定只提供提单应当对货物的运输合同的初步证据，而无需指定的证据效力时，三分之一人商议。维斯比规则补充说，与此相反的证据不予采信如果提单已转让给三分之一人在善意

42、。这一规定明确了提单是运输合同的条款的确凿证据一旦协商善意第三方。 The limit of liability of the carrier is increased Under the Hague Rules, the limit of liability of the carrier is only 100 pounds per package or per unit. This liability limit for the carrier is too low, and not helpful to protect the shippers rights and interests.

43、 So this limit is increased in the Visby Rules up to 10000 golden Franc per package/ unit or 30 golden Franc per kilogram of gross weight of the goods, whichever is the higher. NOTE: One golden Franc equals to 65.5 miligrams of gold of 90% purity. At the time when the Visby Rules is concluded, 10000

44、 golden Franc proximately equals to 431 Pounds. According to the 1979 Protocol to the Hague Rules, the accounting unit is changed into Special Drawing Right and the liability limit of the carrier is 666.67 SDRs per package or per unit or 2 SDRs per kilograms of gross weight of the goods, whichever i

45、s the higher. The limit of liability of the carrier under the Maritime Law of PRC is the same as in the Visby Rules. (article 56)承运人的责任限额增加根据海牙规则，承运人的责任限额只有每包100磅或每单位。承运人对承运人的责任限制太低，不利于保护托运人的权益。所以，这个限制是在威士比规则多达10000金法郎每包/单位或30金法郎的货物毛重每公斤增加，以较高者为准。注：一个金法郎等于65.5毫克纯度为90%的黄金。当维斯比规则的结论是，10000金法郎大致等于431磅。

46、根据1979协议的海牙规则，核算单位改为特别提款权和承运人的责任限额为每件或每单位666.67特别提款权或每公斤货物的毛重2特别提款权，以较高者为准。中华人民共和国海商法下承运人的赔偿责任限制在维斯比规则相同。（第56条） Limitation of actions is lengthened Under the Hague Rules, the limitation of litigation or action is one year starting from the day when the goods is delivered or should have been delivere

47、d. The Visby Rules add provisions that this period may be extended if the parties so agree after the cause of action has arisen; an action for indemnity against a third person may be brought even after the expiration of the one year period provided for in this convention if brought within the time a

48、llowed by the law of the court seized of the case, and the time allowed shall be not less than three months commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself.行动限制延长根据海牙规则，诉讼或诉讼的限制是一年，从货物交付或应交

49、付之日起一年。维斯比规则添加规定在此期间可能双方当事人同意的诉讼因由产生后扩展；赔偿对三分之一人的行动可能更后的一年期本公约规定的期限内提出的是否受理该案的法院的法律允许的时间了，和允许的时间应不少于三个月的时间从一天开始时提出这种赔偿诉讼的人已经解决索赔或被送达在诉讼过程中对自己。The defenses and liability limits of the carrier are emphasized In some countries, the goods owner may bring a suit for indemnity against the carrier either i

50、n tort or in breach of contract, and the carrier cannot invoke the defenses and liability limit provided for in the Hague Rules if the suit is founded in tort. So the Visby Rules emphasize that the defenses and limits of liability provided for in these rules shall apply in any action against the car

51、rier in respect of loss of or damage to the goods covered by a contract of carriage whether the action be founded in breach of contract or in tort. The same approach is taken in the Maritime Law of PRC (article 58(1).强调承运人的抗辩事由和责任限制在一些国家，货物所有人可以在侵权行为或违约行为中提起诉讼，承运人不得援引海牙规则中规定的抗辩和责任限制，如果诉讼成立于侵权行为。所以维斯

52、比规则强调防御和本规则所规定的责任限制，应适用于承运人的任何行动有关的灭失或损坏的货物运输合同所涉及的行为是否成立合同违约或侵权行为。同样的方法在中华人民共和国海事法（第58条（1）。 The defenses and liability limits of carrier are extended to the agents and employees of the carrier Under the Hague Rules, the defenses and liability limits for the carrier do not apply to his agents or emp

53、loyees. This has been changed in the Visby Rules. The Visby Rules expressly provide that, If an action in respect of loss of or damage to the goods is brought against a servant or agent of the carrier (such servant or agent not being an independent contractor), such servant or agent shall be entitle

54、d to avail himself of the defenses and limits of liability which the carrier is entitled to invoke under these Rules, and that the aggregate of the amounts recoverable from the carrier, and his servants and agents, shall in no case exceed the limit provided for in these Rules. That is to say, the Vi

55、sby Rules legalized Himalaya Clause. The same approach is taken in the Maritime Law of PRC (article 58(2). A Himalaya clause is a contractual provision expressed to be for the benefit of a third party who is not a party to the contract. Although theoretically applicable to any form of contract, most

56、 of the jurisprudence relating to Himalaya clauses relate to marine matters, and exclusion clauses in bills of lading for the benefit of stevedores in particular. The clause takes its name from a decision of the English Court of Appeal in the case of Adler v Dickson (The Himalaya) 1954 2 Lloyd's

57、 Rep 267, 1955 1 QB 158 1. The claimant was a passenger on the S.S. Himalaya who had been injured when a gangway fell, throwing her onto the quayside below. The passenger ticket contained a non-responsibility clause exempting the carrier, so the claimant sued the master of the ship and the boatswain

58、. The claimant argued that under the normal rules of privity of contract the defendants could not rely on the terms of a contract that they were not party to. However, the Court of Appeal declared that in the carriage of passengers as well as in the carriage of goods the law permitted a carrier to stipulate not only for himself, but also for those whom he engaged to carry out the contract. It was held as well that the stipulation might be express or implied. Ironically, on the facts before the court, it was held that the passenger ticket did not expressly or by implication benefit servants