國際貿(mào)易法Chapter 2.1 brief introduction of contract law

1、Chapter 2 ITL Contract LawsThis chapter is very very very important!2022-4-28Chapter 2 ITL Contract Laws2Chapter 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!2022-4-28

2、Chapter 2 ITL Contract Laws3Unit 1 Brief Introduction of the Relevant Laws1.1 The Relevant National Laws 1.2 The Relevant International Conventions 1.3 Relevant International Customs 2022-4-28Chapter 2 ITL Contract Laws41.1 The Relevant National Laws 1. The Law Systems the civil law system1 the Angl

3、o-American law system2 11 民法法系民法法系 22 英美法系英美法系 “Law system”: a group of states or areas that have similar legal traditions. “l(fā)egal System”1 : a states department-law system2 1 法律體系法律體系 2 部門法體系部門法體系2022-4-28Chapter 2 ITL Contract Laws51.1 The Relevant National Laws 1. The Law Systems (1) The Civil La

4、w System /continental law system2, / 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 severa

5、l codes of law, i.e. the French Civil Code7, the German Brgerliches Gesetzbuch8 and the Swiss Civil Code9. 11 民法法系民法法系22 大陸法系大陸法系33 羅馬羅馬日爾曼法系日爾曼法系2022-4-28Chapter 2 ITL Contract Laws61.1 The Relevant National Laws 1. The Law Systems(2) The Anglo-American Law System/ Anglo-American law system1/ Engli

6、sh Law system2, / precedent 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 英國法系英國法系3 判例法法系判例法法系2022-4-28Chapter 2 ITL Contract Laws71.1 The Relevant National L

7、aws 1. The Law Systems(3) Main different between the two law systems legal origin legal procedure legal classification 2022-4-28Chapter 2 ITL Contract Laws8Civil 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 StructureC

8、odes slip law單行法單行法 and precedent lawJudges functionOnly use laws to judge Use laws and make laws litigation ProcedureNon-adversarial Proceeding 糾問式糾問式Adversary proceeding對抗式對抗式2022-4-28Chapter 2 ITL Contract Laws91.1 The Relevant National Laws 2022-4-28Chapter 2 ITL Contract Laws101.1 The Relevant

9、National Laws (a)2022-4-28Chapter 2 ITL Contract Laws111.1 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 priority2022-4-28Chapter 2 ITL Contract Laws121.2 The Relevant International Con

10、ventions The CISG is a popular 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 2022-4-28Chapter 2 ITL Contract Laws131.2 The Relevant International Conventions 1. The Drafting of the CISG

11、 By UNCITRAL (http:/www.un.or.at/uncitral/) 2022-4-28Chapter 2 ITL Contract Laws141.2 The Relevant 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. Formatio

12、n of the contractPART III. Sale of goods CHAPTER I. General provisions CHAPTER II. Obligations of the 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 provisions2022-4-28Chapter 2 ITL

13、 Contract Laws151.2 The Relevant International Conventions 3. China and CISG Contracting sate On 11 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 t

14、hat a contract of sale is necessarily in written form or by written proof. 11 保留保留2022-4-28Chapter 2 ITL Contract Laws161.2 The Relevant International Conventions 4. Application Scope of CISG (1) What is “international” in CISG? When studying International Trade Practice, how did you define “interna

15、tional trade”?2022-4-28Chapter 2 ITL Contract Laws171.2 The Relevant International Conventions 4. Application Scope of CISG (1) What is “international” in CISG? International:Place of Business (single standard)2022-4-28Chapter 2 ITL Contract Laws181.2 The Relevant International Conventions 4. Applic

16、ation Scope of CISG (1) What is “international” in CISG? multiple standard多重標(biāo)準(zhǔn)多重標(biāo)準(zhǔn). EG:UKs 1977 Unfair 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 de

17、livered to the other country but not the mentioned above.2022-4-28Chapter 2 ITL Contract Laws19DISCUSS:nWhat is Place of Business(PoB)?nWhat 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

18、parties at any time before or at the conclusion of the contract; if no, reference is to be made to his habitual residence.2022-4-28Chapter 2 ITL Contract Laws20Case nAn Austrian company, plaintiff, entered into a contract for the purchase and transport of sprits to Russia with the Swiss branch of a

19、company that had its headquarters in Liechtenstein. The contract was never performed because a dispute 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

20、damages for breach of contract.2022-4-28Chapter 2 ITL Contract Laws21nThe court held that, even though 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

21、 the contract and its performance. CISG art. 1, 102022-4-28Chapter 2 ITL Contract Laws221.2 The Relevant 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 th

22、e conclusion of the contract, neither knew nor ought to have known that the goods were bought for any 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 a

23、ircraft; (f) Of electricity. 1股票 2股份 3投資債券 4流通票據(jù)2022-4-28Chapter 2 ITL Contract Laws231.2 The Relevant 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 三來

24、一補三來一補.2022-4-28Chapter 2 ITL Contract Laws241.2 The Relevant International Conventions 4. Application 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

25、sold. (C) The liability of the seller for death or personal injury caused by the goods to any person. 2022-4-28Chapter 2 ITL Contract Laws25Case nThe defendants, two Swiss sellers of computer software, attached the Swiss bank accounts of the plaintiff, a French buyer, and asked for specific performa

26、nce of the sale of software contract, which had been declared avoided by the plaintiff.nThe court ruled 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 con

27、tracts concluded on or after 1 March 1991.2022-4-28Chapter 2 ITL Contract Laws26Case 2nThe defendant, 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

28、car was purchased for personal use, in accordance with its article 2(a), the CISG was not applicable 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 u

29、se” had been proved by the seller.2022-4-28Chapter 2 ITL Contract Laws271.3 Relevant International Customs 1. Principles of International Commercial Contracts(PICC)2. INCOTERMS 2000 2022-4-28Chapter 2 ITL Contract Laws281.3 Relevant International Customs 1. PICC(1) The Drafting of PICCthe Governing

30、Council of the International Institute for the Unification of Private Law (UNIDROIT) published the Principles in 1994. 2022-4-28Chapter 2 ITL Contract Laws291.3 Relevant International Customs 1. PICC(2) The contents of PICC after revision in 2004: preamble General Provisions (Chapter 1); Manner of F

31、ormation (Chapter 2); Validity (Chapter 3); Interpretation (Chapter 4); Content (Chapter 5); Performance (Chapter 6); Non-performance (Chapter 7); Set-off (Chapter 8); Assignment of rights and contract (Chapter 9) : Limitation periods (Chapter 10).2022-4-28Chapter 2 ITL Contract Laws301.3 Relevant I

32、nternational Customs 1. PICC(3) Comparison with CISG 2022-4-28Chapter 2 ITL Contract Laws311.3 Relevant International Customs 1. PICC(3) Comparison with CISG 2022-4-28Chapter 2 ITL Contract Laws321.3 Relevant International Customs 1. PICC(3) Comparison with CISG 2022-4-28Chapter 2 ITL Contract Laws3

33、31.3 Relevant International Customs 2. Incoterms2000(1) Brief Introduction (2) Why Incoterms? (3) What do they cover? (4) What are the 13 Incoterms? You Tell Me! 2022-4-28Chapter 2 ITL Contract Laws341.3 Relevant International Customs Concept and Role of Trade terms Concept: Trade terms/price terms;

34、 delivery terms: refer to some certain terms which are commonly and widely used in international business, these terms served as a shorthand method of expressing certain meanings in the area of goods shipping and risks allocating.2022-4-28Chapter 2 ITL Contract Laws351.3 Relevant International Custo

35、msRole: By using these certain trade terms, the parties to a sale contract can express their agreement immediately with little confusion and with little language problems. 2022-4-28Chapter 2 ITL Contract Laws361.3 Relevant International CustomsIncoterms 2000 include thirteen trade terms, according t

36、o relative responsibilities of each party and to the point at which the risk of loss passed from the seller to buyer, these 13 terms are classified into 4 groups, namely E terms, F terms, C terms and D terms.2022-4-28Chapter 2 ITL Contract Laws371.3 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,