《国际贸易实务与操作》Chapter 3
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Section 3 Formation of International Sales Contract
Article 14 (1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. (2) A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal.
6
Section 2 Application of the CISG
Case 3-1 Asante Technologies, Inc. v. PMC-sierra, Inc. Facts: The Asante (P), in California, purchased electronic parts from the PMC (D), whose office and factory were in Canada. P directly corresponded with D at D’s Canadian address. P placed its orders through D’s authorized distributor, Unique Technologies, located in California. Invoices were sent from Unique, and payment remitted to Unique. P claimed that the goods did not meet its specifications. What law is applied to this case?
2
Section 1 Structure and Contents of the CISG
The United Nations Convention on Contracts for the International Sale of Goods (CISG) was ratified by 71 countries by 2008. CISG has 101 articles in total, which fall into four parts: 1. Articles 1-13: the sphere of application of the Convention and general provisions. 2. Articles 14-24源自文库 formation of contract.
7
Section 2 Application of the CISG
Case 3-1 This litigation is between parties of two different Contracting States – Canada & US. Therefore, CISG applies.
3
Section 1 Structure and Contents of the CISG
3. Articles 25-88: sale of goods, obligations of the seller and the buyer, passing of risk. 4. Articles 89-101: final provisions including how and when the Convention comes into force, permitted reservations and declarations, and the application of the Convention to international sales where both States concerned have the same or similar law on the subject.
13
Section 3 Formation of International Sales Contract
Case 3-4 Counter-offer or Acceptance ? Facts: An Italian seller and a Belgian buyer wanted to enter into a contract for the sale of textiles. The seller provided samples of its fabrics to the buyer on the bases of which, the latter determined its collection of sandals to be presented to its customers. After selecting a certain fabric the buyer placed an order. However, the seller proposed a substitute for the ordered fabric and, shortly after that, it communicated the impossibility of delivery unless a larger quantity of fabric was ordered. The buyer refused both these proposals. Was there a contract concluded?
5
Section 2 Application of the CISG
In accordance with Articles 1 and 95 of CISG, the application of CISG can be described as follows: 1. The contract is for the commercial sale of goods; and 2. The contract is between parties whose places of business are in different countries (nationality or citizenship of individuals is not a determining factor); and 3. The places of business are located in countries that have ratified the CISG.
11
Section 3 Formation of International Sales Contract
Case 3-2 It was sufficiently definite as to type of goods, price and quantity, and it indicated the offeror’s intention to be bound.
12
Section 3 Formation of International Sales Contract
Case 3-3 Is the Proposal an Offer? Facts: An Austrian buyer ordered from a German seller a ‘certain quantity’ of medium to good quality Chinchilla furs, at a price ranging from 35 to 65 German Marks apiece. The seller sent 249 furs, 239 of which were sold on by the buyer to an Italian customer. The buyer paid only 2400 Marks to the seller, who then commenced an action to recover the rest of the price due. Question: Was buyer’s proposal definite enough to be an offer?
国际贸易实务与操作
International Trade Practice and Operation
1
Chapter 3 Formation of the International Sales Contract (CISG)
Teaching Objectives 1. Outline the structure and contents of CISG. 2. Understand the application rules of CISG. 3. Discuss the legal features of offer and acceptance in CISG. 4. Introduce UNCITRAL Model Law on Electronic Commerce.
4
Section 1 Structure and Contents of the CISG
CISG does not govern: validity, transfer of property, limitation of claims, product liability, legality of a contract. The gap-filling is left to the applicable national contract law.
10
Section 3 Formation of International Sales Contract
Case 3-2 (Was the Contract Made?): Facts: A French company (the seller) sent a fax in English to a German company (the buyer) proposing the delivery of twenty truck loads of tomato concentrate. The buyer replied by fax accepting delivery. Thereafter, only one truck load was received by the buyer. Question: Was there a contract established between the seller and the buyer?
8
Section 3 Formation of International Sales Contract
1. Offer An indication of willingness to do or refrain from something that is capable of being converted by acceptance into a legally binding contract. An offer is made from an offeror to an offeree and is capable of being accepted only by someone who knows of its existence. The offer must be communicated directly to the offeree to be a legal contract. An offer cannot be accepted without knowledge of it.
Section 3 Formation of International Sales Contract
Article 14 (1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. (2) A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal.
6
Section 2 Application of the CISG
Case 3-1 Asante Technologies, Inc. v. PMC-sierra, Inc. Facts: The Asante (P), in California, purchased electronic parts from the PMC (D), whose office and factory were in Canada. P directly corresponded with D at D’s Canadian address. P placed its orders through D’s authorized distributor, Unique Technologies, located in California. Invoices were sent from Unique, and payment remitted to Unique. P claimed that the goods did not meet its specifications. What law is applied to this case?
2
Section 1 Structure and Contents of the CISG
The United Nations Convention on Contracts for the International Sale of Goods (CISG) was ratified by 71 countries by 2008. CISG has 101 articles in total, which fall into four parts: 1. Articles 1-13: the sphere of application of the Convention and general provisions. 2. Articles 14-24源自文库 formation of contract.
7
Section 2 Application of the CISG
Case 3-1 This litigation is between parties of two different Contracting States – Canada & US. Therefore, CISG applies.
3
Section 1 Structure and Contents of the CISG
3. Articles 25-88: sale of goods, obligations of the seller and the buyer, passing of risk. 4. Articles 89-101: final provisions including how and when the Convention comes into force, permitted reservations and declarations, and the application of the Convention to international sales where both States concerned have the same or similar law on the subject.
13
Section 3 Formation of International Sales Contract
Case 3-4 Counter-offer or Acceptance ? Facts: An Italian seller and a Belgian buyer wanted to enter into a contract for the sale of textiles. The seller provided samples of its fabrics to the buyer on the bases of which, the latter determined its collection of sandals to be presented to its customers. After selecting a certain fabric the buyer placed an order. However, the seller proposed a substitute for the ordered fabric and, shortly after that, it communicated the impossibility of delivery unless a larger quantity of fabric was ordered. The buyer refused both these proposals. Was there a contract concluded?
5
Section 2 Application of the CISG
In accordance with Articles 1 and 95 of CISG, the application of CISG can be described as follows: 1. The contract is for the commercial sale of goods; and 2. The contract is between parties whose places of business are in different countries (nationality or citizenship of individuals is not a determining factor); and 3. The places of business are located in countries that have ratified the CISG.
11
Section 3 Formation of International Sales Contract
Case 3-2 It was sufficiently definite as to type of goods, price and quantity, and it indicated the offeror’s intention to be bound.
12
Section 3 Formation of International Sales Contract
Case 3-3 Is the Proposal an Offer? Facts: An Austrian buyer ordered from a German seller a ‘certain quantity’ of medium to good quality Chinchilla furs, at a price ranging from 35 to 65 German Marks apiece. The seller sent 249 furs, 239 of which were sold on by the buyer to an Italian customer. The buyer paid only 2400 Marks to the seller, who then commenced an action to recover the rest of the price due. Question: Was buyer’s proposal definite enough to be an offer?
国际贸易实务与操作
International Trade Practice and Operation
1
Chapter 3 Formation of the International Sales Contract (CISG)
Teaching Objectives 1. Outline the structure and contents of CISG. 2. Understand the application rules of CISG. 3. Discuss the legal features of offer and acceptance in CISG. 4. Introduce UNCITRAL Model Law on Electronic Commerce.
4
Section 1 Structure and Contents of the CISG
CISG does not govern: validity, transfer of property, limitation of claims, product liability, legality of a contract. The gap-filling is left to the applicable national contract law.
10
Section 3 Formation of International Sales Contract
Case 3-2 (Was the Contract Made?): Facts: A French company (the seller) sent a fax in English to a German company (the buyer) proposing the delivery of twenty truck loads of tomato concentrate. The buyer replied by fax accepting delivery. Thereafter, only one truck load was received by the buyer. Question: Was there a contract established between the seller and the buyer?
8
Section 3 Formation of International Sales Contract
1. Offer An indication of willingness to do or refrain from something that is capable of being converted by acceptance into a legally binding contract. An offer is made from an offeror to an offeree and is capable of being accepted only by someone who knows of its existence. The offer must be communicated directly to the offeree to be a legal contract. An offer cannot be accepted without knowledge of it.