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卹国际商法案例及部分知识点
Contract Law for the
International Sale of Goods
Case 1
On July 27th, 1986, A company of our
country, at the request of B company of the
Netherlands, offered to
sell
100 tons
rice with
the price
3900
yuan per ton,
on CIF
terms,
Rotterdam.
After
receiving
the
offer,
B
company
requested
us
to
reduce
the
price, increase the
quantity and lengthen the time of the validity of
the offer again and
again. A company
then agreed to increase the quantity to 300 tons,
reduced the price
to
3800
yuan
and
lengthened
the
time
of
validity
of
the
offer
to
August
30th.
B
company agreed through the
telegram on August 26th. But at that time, we
found that
the
rice
price
had
risen
violently
in
the
world
market,
so
we
refused
to
fulfill
the
contract
and
replied to
B
company that we had sold
the
goods before receiving the
acceptance.
Definition of contract
In common law countries, contract means
a promise or set of promises, for breach of
which
the
law
gives
a
remedy,
or
the
performance
of
which
the
law
in
some
way
recognizes as a duty.
In
civil law countries, contract is a mutual assent
with which one person or more is
obligated to give a thing, to do or not
to do a thing to one person or more persons.
Form of contract
Form in
contract law means whether a contract is made in
writing or orally.
Discussion:
Can
we
make
the
contract
orally?Can
we
make
the
sales
of
contract
orally?
Under UCC, American
law requires that contracts for sale of goods or
$$500 or that
more must in writing.
Today, however, many exceptions to this UCC rule
make most
oral sales contract quite
enforceable.
Under the CISG
,
contracts for the sale of goods need not be in
writing.
Article
11
states:
“
A
contract
of
sale
need
not
be
concluded
in
or
evidenced
by
writing and is not
subject to any other requirements as to form. It
may be proved by
any means, including
witnesses.
Discuss the following cases
and decide whether there is an offer.
a. A advertised that they would be
prepared to pay $$100 to anyone catching influenza
after using their remedy, adding that
they had deposited $$1,000 with a bank to show
the genuineness of their offer. B
bought and used the remedy, and caught influenza.
But A refused to pay $$100 to the
plaintiff.
b. A advertised the holding
of an auction sale. B sued to recover the expenses
he had
incurred in attending at the
advertised place and time, only to find that the
sale had
been cancelled.
Lapse(
失效
) of an
offer
a. The offer is withdrawn by the
offeror.
b. The offer is revoked.
c. The notice of rejection reaches the
offeror;
d.
The
offeree
fails
to
make
an
acceptance
at
the
time
when
the
time
limit
for
acceptance expires;
e. The
offeree substantially alters the contents of the
offer.
Analyze the following case
On 1 October, A
(in Cardiff)
posted
an offer to
B (in New
York) who received the
offer on 11
October, and immediately accepted by
cable. On 8 October, A posted a
letter of revocation, which reached B
only on 20 October. Was the contract formed?
David offered to trade his camera to
Mary in exchange for her video recorder. Peter,
who
had
a
recorder
of
the
same
make
and
model,
overheard
the
offer
and
said
he
would
make the same swap. Did a contract result from
Peter
’
s acceptance?
Chan agreed to sell goods to Lee by a
document which stated:
“
This
offer to be left
over
until
Friday,
10
a.m.
Acceptance
should
be
by
post
”
.
On
Thursday
Chan
contracted to
sell the
goods
to
Wong.
Chan then wrote a letter to
Lee
revoking the
offer. The letter of
revocation reached Lee on Saturday, 11 a.m. On
Friday 9 a.m. Lee
posted
a
letter
of
acceptance
which
reached
Chan
on
Saturday
4
p.m.
Advise
Lee
according to Hongkong law.
A offered to
sell a farm to
B for $$1,000.
B refused and
intended to
buy it at
$$950,
which A refused. B then wrote
purporting to accept the original offer of $$1,000.
But A
refused. Was the contract formed?
Case analysis
Bob, who was
living in Boston, bought real estate by mail
through Tom, a real estate
agent
in
New
York.
Tom
sent
Bob
several
pictures
of
the
house
and
a
general
description
of
the
house
and
its
neighborhood.
Included
in
the
description
was
the
statement that the house
was
“
within easy walking
distance of school, churches, and
shopping
centers
”
.
After
moving
in,
Bob
discovers
that
the
closest
school
is
four
miles away. Is this misrepresentation
sufficiently material to justify rescission?
Decision
: The answer depends
on who Bob is. IF Bob is a retire, childless
widower,
the misrepresentation could be
judged to be immaterial. On the other hand, if Bob
has
a child in school, the nearness of
schools could well be considered material.
Validity of Contract
Jack agrees to sell Giant a goose for
$$20. Both parties think the goose is a regular
goose,
which
Giant
wants
for
breeding.
Before
the
goose
is
transferred,
the
goose
begins
laying
golden
eggs,
which
makes
her
priceless.
Jack
refuses
to
uphold
the
agreement and Giant sues to enforce the
contract.
Jack
is
building
himself
a
monument
and
needs
a
rock-
cutting
machine.
He
sees
Giant's ad in the
Bargain Trader Newspaper for a rock-cutting
machine for $$10,000,
Jack
goes
to
Giant's
house
and
inspects
the
machine,
Giant
accurately
answers
all
questions Jack asks.
Jack offers Giant $$10,000 for the machine. Before
the transaction
takes place, Jack finds
out the rock cutter will not be the type suitable
for cutting his
marble.
Case
analysis 1
Cometals
公司从一家英国商品
贸易公司
Tarbert
贸易公司购买肯里亚红豆。
一家南非公司
Agrimen
< br>作为
Tarbert
的贸易代表进行有关事项的协商。红
豆被储藏在
Amsterdam
的一间仓
库里。
Cometals
购买这批红豆后准备再出售给
Columbia
的一购买者。
按照
Columbia
的规定，
只有当卖方能提供原
产地证明
（由商会签署）
表明这批红豆来自欧洲共同体的成员国
，
这批
货才能进口。
Cometals
要求
Tarbert
提供类似的证件并
得到同意，但他们双方都明白这份证
件不可能通过合法途径得到，
因为肯里亚红豆原产于非洲。
之后，
被告因货物的劣质而拒收
这批货物，
因此原告上诉。
被告还声称
这份合同是无效的和不应执行的，
因为原告不可能提
供这批红豆
的欧共体原产地证明文件，除非是伪造。
Case
analysis 2
1989
年
7
月
17
日，中国某进出口公司
A
出售一批农产品
C514
。向美国某公司
B
发出实盘
如下：
“
报
C514
，
300
吨，即期装船。不可撤消即期信用证付款，每吨
CIF
纽约
US$$900
，
7
月
25
日前电复有效。
”
美国公司
B
于
7
月
22
日复电如下：
“
你方
7
月
17
日发
盘。我方接
受
C514
，
300
吨，即期装船。不可撤消即期信用证付款，每吨
CIF
纽约
US$$900
，除通常的
装运单据以外，要求提供产地证、植物检疫证明书，适合海洋运输的良好包装
”
。过了几日，
受盘人
B
未见发盘人
A
有回电。又于
7
月
29
日去电询问<
/p>
A
是否受到
B7
月
22
日电。发盘
人
< br>A
于
7
月
30
日复电如下，
“
你
7
月
22
日电收悉。由于
你方变更了我方
7
月
17
日发盘，
致该发盘失效。十分抱歉，由于世界市场价格变化，收到你
22
日电后，我货已另行出售。
”
受盘人
B
于
8
月
2
日又致电
A
公司，重申其已于
7
月
2
2
日电中接受
A
的发盘，买卖合同<
/p>
业已成立。并称：
“
我方在
7
月
22
日电中要求提供产
地证、植物检疫证明书等内容，并非拒
绝你方发盘。望你方履行已成立的合同，否则将请
求赔偿你方违约给我方造成的经济损
失。
”
A
公司坚持认为合同没有成立。双方发生激烈的争论。
B<
/p>
公司见磋商无结果，遂向我
国某市中级人民法院起诉。
Case
Bundesgerichtscof,
the
Dutch
seller
and
the
German
buyer
agreed
in
their
contract
that
the
goods,
cobalt
sulphate,
should
be
of
British
origin
and
accompanied
by
certificates of origin and quality. The
buyer avoided the contract on the ground that
the cobalt sulphate was made in South
Africa and that the certificate was wrong. In
addition, the buyer alleged that the
quality of the goods was inferior to that agreed
in
the contract. Could the buyer avoid
the contract?
Decision:
German
court
concluded
that
the
buyer
was
not
entitled
to
avoid
the
contract because the alleged breaches
were not fundamental. The court held that the
delivery of the wrong certificate might
be remedied by the seller, by
delivering the
correct one.
Case study 1
A(a Japanese
company) agreed to sell 100 machines to B(a
Chinese company) at the
price
of
$$400.
When
they
negotiated
for
the
contract,
the
buyer
has
told
the
seller
these machines are used to knit
sweater. After the delivery of the machines, B
found
that some of them
can
be normally used, while the others can be only
used to
knit
scarf. Suppose you are in charge of
this business, what are you going to do? Why?
Case study 2
A
(a Chinese company) concluded a contract with B(a
New Zealand factory) that A
would
buy
2000
typewriters
from
B
at
the
price
of
$$200,
CIF
term.
But
when
the
typewriters
were
checked
on
the
port
of
destination,
A
found
that
there
were
2200
typewriters. Since A was a trade
company, it needn
’
t surplus
typewriters. Therefore, A
took the
delivery of 2000 typewriters and contained the
others in the warehouse of the
port
of
destination
until
B
could
deal
with
the
goods
for
which
they
paid
$$1000.
Could A recover $$1000 from
B? Why?
Case study 3
A(an
Australian company) agreed to buy 200 tons of rice
from B(a Chinese company)
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