法硕国经课件2

The form of the contract
• Articles 11 &13 • (1) writing: including telegram and telex • (2) oral: face to face or by phone , to make sure the conditions of trade . • (3) any other form: it maybe proved by any means ,including witnesses.
I.The Sphere of Application of CISG
1. ―International‖
2. ―Sale‖
3. ―Contract‖
4. ―Goods‖
5. Autonomy of Will
International
A. Two Conditions : (1) Direct Application － [Article 1(1)(a)]; (2) Indirect Application－ [Article 1(1)(b)]
The interpretation of statements made by and other conduct of a party
• (1) according to one party’s intent where the other party knew or could not have been unaware what that intent was （Article 8） • Case: 1月1日，孟买的A电告伦敦的B：“可供苏拉特 皮棉1000包，每包150美元，无敌号下一航班自孟买 发运。” B 查船期了解到，名为无敌号的一条船通 常运送煤炭，预计从孟买起航后，2月1日到达利物浦。 另一艘名为无敌号的杂货船从孟买起航后，预计5月1 日到达利物浦。B接受了要约，卖方运送棉花的杂货船 无敌号果然于5月1日到达利物浦。
B. The business places in different states (1) More than one business place→the closet relationship; (2) No business place→the habitual residence
Sale （1）
Contract （1）
• Article 4 This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is 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.
Goods
• Article 2 This Convention does not apply to sales: （d）of stocks, shares, investment securities, negotiable instruments or money; （e）of ships, vessels, hovercraft or aircraft; （f）of electricity.
Article 2 This Convention does not apply to sales:
（ a ） of goods bought 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 such use; （b）by auction;
The interpretation of statements made by and other conduct of a party
• (2) according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances • Case : 孟买A向伦敦B发出与上例同样的要约，B回 电接受了要约。孟买的船期表列出一艘名为无敌号 的杂货船预计5月1日到达利物浦；而伦敦当地的船 期表列出一艘名为无敌号的杂货船预计2月份到利物 浦，后来买方发现2月份到港的杂货船并不是卖方所 指的杂货船。
Contract （2）
• Article 5 This Convention does not
apply to the liability of the seller for
death or personal injury caused by the
goods to any person.
Autonomy of Will in the CISG
The relationship between the convention and usages ＆ practices
• The relationship between the convention and practices: The convention should give priority to practices. • Case: 供应商甲长期向乙钢铁厂供应炼钢用锻烧镁矿 石，在已经顺利履行的五笔合同交易中每次装运时， 甲方都要在装货船舶的底舱垫上编织布，以防潮和防 污染，买方乙从来没有提出异议。在第六次合同交易 的履行中，买方卸货不慎，将垫布混入矿石中，产生 一些过筛成本，乙认为这是甲在舱底垫布不当所致， 向其索赔.该索赔难以成立，卖方在舱底垫布的行为已 成为当事人同意的习惯做法。
第五讲：CISG: PART I
1、http://www.cisg.law.pace.edu/
２、王京禾：《<联合国国际货物销售合同公约>解释》， 中国对外经济贸易出版社１９８７年版
３、张玉卿：《<联合国国际货物销售合同公约>释义》， 中国对外经济贸易出版社１９９８年版。 4、李慧妮译： 《<联合国国际货物销售合同公约>评 释》，北京大学出版社２００６年版。 ５、李巍：《<联合国国际货物销售合同公约>评释》， 法律出版社２００２年版。
The relationship between the convention and usages ﹠ practices
• The relationship between the convention and usages : The convention should give priority to usages. • The definition of usage: (1) have impliedly made or proclaimed in writing applicable to their contract (2) the parties knew or ought to have known (3) widely known in international trade and regularly observed by Article 9
（c）on execution or otherwise by authority of law;
Βιβλιοθήκη Baidu
Sale （2）
• Article 3
（ 1 ） Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production. （2）This Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services.
The interpretation and application of the convention
• The general principles of the interpretation and application of this convention: • (1) considering its international character • (2) promoting uniformity in its application • (3) observing trade Article 7 good faith in international
The interpretation and application of the convention
• The approaches of filling the legal vacancy: • (1) firstly, in conformity with the general principles • (2) secondly ,in conformity with the law applicable by virtue of the rules of private international law Article 7
II. GENERAL PROVISIONS OF THE CISG
1. The interpretation and application of the convention 2. The interpretation of statements made by and other conduct of a party 3. The relationship between the convention and usages ＆ practices 4. The definition of the place of business 5. The form of the contract 6. The Reservation and its effectiveness
Article 6 The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.
The reservation and its effectiveness
• Article 12 • States Parties to the Convention are allowed to make a reservation on any provision of article 11,article 29 or party Ⅱ of this convention that allows a contract of sale or its modification or termination by agreement or any offer ,acceptance or other indication of intention to be made in any form other than in writing.