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31 terms

CH4 LSB

STUDY
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Sales contracts
the uniform method of conducting commercial transactions
Sales contracts contains
rights and duties of parties'
terms and conditions
quantity and price
choice of law and form
law of sales
body of law which governs contracts for the present or future sale of goods
sales law is a subcategory of...
contract law and commercial law
Contractual uncertainty
trades will be made with foreign countries and and without law of sales contacts can get tricky; lawyers of one country do not know all the laws of another country so we use law of sales for all trade
strict contract law
strict rules and must be followed
must identify a specific offer acceptance
include price, date, etc
unification of law
process of making national laws more uniform
UNCITRAL
United Nations Commission on International Trade Law; led to successful effort in unifying the law applicable to the international sale of goods and the adoption of CISG
CISG
United Nations Convention of Contracts for the International Sale of Goods; 1988; implements national codes and statutes for more than 70 nations
CISG main purpose
developed a code acceptable to the common law countries and civil law countries, including developed and developing countries as well as socialist countries.
Contract law in China
based on socialist and western civil law principles
Contract law OF china
1999; the Contract law for the People's Republic of China; applies to sales and electricity, water, loans, construction, transfer of energy, agency and brokerage agreements
UCC
Uniform commercial code; primary body of law for domestic transactions in the US; has been adopted in 50 states + DC but with some individual state variation
Article 2 of UCC
applies to transaction in goods; goods are personal property that is tangible and moveable; does not apply to intangibles (patents) or real property
applicability (CISG applies is...)
-contract is for commercial sale of goods
-between parties whose places of business are in different countries
-parties' places of business are location in countries that have ratified the convention
Who does CISG apply to?
anyone who chooses it because any country can opt in and if you have ratified it already, you dont even have to use it! If no law is mentioned, CISG is the rule used.
Choice of law:CISG
parties may insert their choice of law in the contract to try and avoid the conflict of law problems (case Asante Tech v. PMC-Sierra, Inc.)
UCC v. CISG Writing requirement
UCC requires contracts for the sale of goods $5,000 + to be in writing
CISG does not require a writing(russia has not included this provision)
Problems of Contract Interpretation
Parol Evidence; Customs, Practice and Trade Usages
Parol Evidence UCC vs CISG
UCC: if contract is final written expression, then parole evidence is not admissible to contradict(courts are not able to look up any written or oral statements before the contract was made)
CISG: Courts may consider all relevant circumstances(EX: MCC Marble Ceramic v. Ceramica Nuova)
Customs, Practice and Trade Usages
trade usages are from customs of an industry, practices of merchants in their past dealings, and usages of trade terms and lang.
Cus, Prac, Usage - UCC v. CISG
UCC: allow past practice and industry to fill in gaps
CISG: limited to those which parties agree to or past dealings; or those usages that the parties ought to have known are observed in trade or industry
CISG Warranties (implied)
the warranties are fit for ordinary purposes based on description, for for particular purpose if seller knows of particular purpose, match sample or model, contained and packaged in a usual manner
Disclaiming implied warranties UCC v. CSIG
UCC: seller may disclaim only by conspicuous words "as is"
CSIG: no limitations
Performance of Buyer, Inspection and notice of nonconformity
buyer must inspect goods within as short as period as possible under the circumstances;
buyer must give notice of nonconformity as soon as practicable. Notice must be specific, not vague.
Seller's right to remedy
seller has the right to cure or remedy and the buyer can not avoid until the time for performance expires.
Remedy: Nachfirst Period
-additional time to perform if it does not cause "unreasonable delay" or "unreasonable inconvience". If seller does ask for extra time and buyer does not respond, the seller may have additional time.
Remedy: Right to avoidance
when one party fails to perform the contract is not automatically terminated, the contract or certain provisions, must be "avoided" by one of the parties;
Buyer: can avoid and declare fundamental breach
Seller: can avoid if buyer fails to take delivery or pay
Events beyond control of parties
Impossibility: supervening illegality;
commercial impracticability: extreme hardship, difficulty or unreasonable expense or unforeseen events
Force Majeure clauses
in a contract, excuses a party from failing to perform the occurrence of one or more specified events: war, bloackaid, act of gov, inability to obtain export license, acts of god, acts of public enemies, failure of transportation, quarantine restrictions, strikes
CISG exemptions for impediments beyond control
party is not liable for a failure to perform any obligations if it was due to impediment beyond control, impediment was not reasonably foreseeable at the time of contract was concluded, impediment was unavoidable and could not be overcome, and notice was given to the other party of the impediment and its effect on the contact