Unit One :Introduction of International Trade Law
Outline
Definition of ITL
The Scope of ITL （调整范围）
History of ITL
Comparison of ITL and In. Business Law
Sources of ITL( 渊源）
Question How to understand the word “international law”here?
What is International Law?
―A rule… that has been accepted as such by the international community.‖
Includes :Customary international law.
International treaties and agreements.
General principles common to major legal systems.
Public vs. Private International Law
Public International Law.
–Involves relationships between countries and applies ―norms regarded as binding on all members of the international community‖
Private International Law.
–Is described as conflict of laws or “domain of rights, duties, and disputes between and among persons from different places.
Part I Definition
国际贸易法：调整跨越国界的货物贸易、技术贸易和服务贸易关系以及这些贸易关系有关的其他关系的法律规范和规则的总和。
(a) The body of norms and rules
–Private law: governs transnational Relationships of Private Persons ( International transaction Law)
e.g. the law of international sales, trade finance, licensing agreement etc.
–Public law: laws that make up the legal framework within which international business takes place.
e.g. the treaties of EU, GATT agreement, NAFTA
(b) the scope of ITL（调整范围）
Trade in goods, Trade in service，Trade in technology,other international business field
Part III History of International Trade Law
?Customs and usages Law
?Decentralization Unification
Part IV: In. Business Law
(a ) the same origin
the commercial usages
(b) The different content
Part V. Sources of In. Trade Law
(a ) International Treaties and Conventions
(b) International Trade Usages
(c) Domestic Law
(d) International Model Law(国际示范法)
The Law of Treaties
Treaties are binding agreements between two or more nations.
A ―convention‖ is a treaty.
Bilateral vs. multilateral treaties.
such as: ―FNC Treaty‖友好通商条约, EU, WTO :
FNC : friendship, navigation and commerce
–Subject matter: liberalization of trade or unification of law
Protocol(议定书) is an agreement on matters less significant than those addressed in a treaty.
The Law of Treaties
Vienna Convention of the Law of Treaties: codified in 1980 the customary law regarding treaties.
Self-Executing and Non-Self-Executing Treaties.
–Self-Executing is one that has a ―domestic law effect.‖
–Non-Self-Executing requires some Congressional action before it becomes law.
(d) International Model Law
?UNIDROIT PICC (国际统一私法协会的国际商事合同通则）
Principles of International Commercial Contract (PICC) by the International Institute for the Unification of Private Law (UNIDROIT)
2. the Functions of international model law
roles of international model law
International model law is not international treaties or conventions and is of no certain legal validity
Its important roles:
? A model for national and international legislature.
? A means of interpreting and supplementing existing uniform law
?Rules governing the contract.[back]
International and Comparative Approach
Compare: civil law, common law and concepts from different legal system
Compare: U.S. law, Chinese law and relevant treaties.
–Sample: Comparative sales laws, administrative regulations of international trade
Activity
Group discussion:
Compare ―International Trade Law‖ with ― International Economic Law‖.
Unit TwoInternational Trading of Goods
Outline:Introduction of CISG
Part I: CISG?Part II CISG sphere of application?
Part III: CISG scope of application? Part IV CISG rules and principles?
Part V: General Provisions of the CISG? （the KEY point)
Part I: the Drafting of CISG
●the United Nations Commission on International Trade Law ( UNCITRAL)
●The mandate of UNCITRAL is the unification and harmonization of international trade law
Four pieces of legislative work by UNCTRAL
?the United Nations Convention on International Sale of Goods (CISG)
―联合国国际货物销售合同公约―
(2) the Convention on the Limitation Period in the International sale of goods
―国际货物销售时效期限公约‖
(3) the United Nations Convention on the Carriage of Goods by sea of 1978 （the Hamburg Rules)
―联合国海上货物运输公约‖或―汉堡规则‖
(4) the Convention on International Bills of Exchange and International Promissory Notes
国际汇票和国际本票公约
Part II: CISG sphere of application?
- International sales law of countries that account for over 2/3 of all world trade
- Most notable exceptions: Japan United Kingdom(plus Ireland & Portugal in the EU)
P a r t I I I:C I S G s c o p e o f a p p l i c a t i o n?
(1) The buyer and seller must have their places of business in different states.
----the place of business criterion (营业地标准), NOT nationality criterion(未采纳国籍标准)
(2) Additionally, either:
(2)(a)Both of the states must be contracting parties to the Convention or
(b) the rules of private international law must ―lead to the application of the law of a contracting states.‖
案例Seller has a place of business in State A (a noncontracting state) and Buyer a place of business in State B (also a noncontracting states). They enter into a contract in State C (which is a contracting state )and the Seller breaches performance on State C. Buyer brings an action in State B, whose choice-of-law rules point to the laws of State C as applying to the contract.
?1] Note: CISG may apply even if the buyer’s and seller’s places of business are not in a contracting state.
2] Exception: RESERVATION for this application.
2.(a) Application of CISG led by choice of law rules
(b) Opting In and Out
?The parties to a contract may exclude or modify the CISG’s application by a ―choice of law‖ clause(法律选择条款）.
CISG: Choice of Law (P106)
?Choice of Law: Parties may insert their choice of law in the contract to try to avoid the conflict of laws problem.
?Case Asante Technologies, Inc. v. PMC-Sierra, Inc. (2001). →
Asante Technologies v. PMC-Sierra
?Facts: Assante placed order for parts through distributor in California to PMC in Canada. Assante‘s order stated that laws of buyer‘s
address should control. PMC‘s confirmation stated that the laws of Canada would apply. Assante filed suit in California state court. Case transferred to Federal court. Assante argued the case belonged in state court in California.
Asante Technologies v. PMC-Sierra
?Issue: Which law will be applied?
?Holding: CISG. The case involves parties from two different countries and thus the CISG applies. The parties‘ order and confirmation
language was not sufficient to opt out of the CISG.
Sales excluded from CISG
?Consumer goods.Auction.Stocks.Vessels, aircraft, ships.Preponderant part for labor or services.
?Death or personal injury.Opt out.
Validity and Enforcement of International Sales Contracts
?Illegal Contracts: (P114)
example Tarbert Trading, Ltd. v. Cometals, Inc. (1987) (a contract calling for the delivery of a fraudulent certificate of origin is illegal and contrary to public policy).
Validity and Enforcement of International Sales Contracts (P113)
?Writing requirement: UCC requires contracts for the sale of goods $500 or more ($5,000 new limit) to be in writing.
?Many countries do NOT have this requirement.
?CISG does NOT require a writing (but Russia and China has not included this provision).
Writing
?UCC: contracts for the sale of goods $500 ( $5,000 new limit) or more must be in writing to be enforceable
?However, there are many exceptions
?CISG: need not be in writing.
5) CISG rules and principles?
PART I - Sphere of Application and General Provisions
Chapter I - Sphere of Application
Chapter II - General Provisions
PART II - Formation of the Contract
PART III - Sale of Goods
Chapter I - General Provisions
Chapter II - Obligations of the Seller
Section I - Delivery of the goods and handing over of documents
Section II - Conformity of the goods and third party claims
Section III - Remedies for breach of contract by the seller
Chapter III - Obligations of the Buyer
Section I - Payment of the price
Section II - Taking delivery
Section III - Remedies for breach of contract by the buyer
Chapter IV - Passing of Risk
Chapter V - Provisions Common to the Obligations of the Seller and of the Buyer
Section I - Anticipatory breach and instalment contracts
Section II - Damages
Section III - Interest
Section IV - Exemptions
Section V - Effects of avoidance
Section VI - Preservation of the goods
PART IV - Final Provisions
Part IV: General Provisions of CISG
?Consider the following sources, in the following order:
?1) The Convention.
?2) The general principles on which the Convention is based.
?3) The rules of private international law
?Interpretation of the convention
a. Article 7 directs a court to consider:
(a) the international character of the Convention(国际性）
(b)the need to promote uniformity in the Convention’s application, （公约适用的统一性）
(c) the observance of good faith（遵守诚信)
b. Rules of interpretation.
?1) ―Plain meaning‖: Look at the words of Convention itself.
?2) Look to the CISG’s legislative history to determine its intent.
?3) Precedent: Use case law to interpret the CISG.
（2）Interpretation of the contract itself
?我国《合同法》第125条第1款规定：―当事人对合同条款的理解有争议的，应当按照合同所使用的词句、合同的有关条款、合同的目的、
交易习惯以及诚实信用原则，确定该条款的真实意思。‖
（2）Interpretation of the contract itself
CISG establishes the two ways:
(1) Use the subjective intent of a speaker
Subjective intent approach(主观方法):
?Rule in many civil law countries.
(2)When a speaker’s intent is not clear, look at ―objective‖ intent.
Objective intent approach:(客观方法）
?Rule in the common law countries
Subjective intent approach:
Rule that contracts should be interpreted according to the actual intent and understanding of the parties at the time they made their agreement. Subjective intent approach（CISG）
(a)where the parties have a common understanding or intent (共同意图)concerning the meaning of a provision, that common understanding is to be used in any interpretation.
(b) Where the understandings or intent of the parties diverge（不同）, and one party ―knew or could not have been unaware‖ of the other party’s intent, under Article 8(1）the latter party’s interpretation prevails（依一方的真实意图解释合同）
案例Raffles V. Wichelaus and Another
?it was agreed between the plaintiff and the defendants, to wit, at Liverpool, that the plaintiff should sell to the defendants, and the
defendants buy of the plaintiff, certain goods, to wit, 125 bales of Surat cotton, guaranteed middling fair merchant's dhollorah, to arrive ex Peerless from Bombay; and that the cotton should be taken from the quay, and that the defendants would pay the plaintiff for the same at a certain rate, to wit, at the rate of 17.25 d. per pound, within a certain time then agreed upon after the arrival of said goods in England. Averments: that the said goods did arrive by said ship from Bombay to England, to wit, at Liverpool, and the plaintiff was then and there ready and willing and offered to deliver that said goods to the defendants, etc. Breach: that the defendants refused to accept the said goods or pay the plaintiff for them.
Facts?Contract for sale of 125 bales of cotton
?Shipment from Bombay to Liverpool via ship “Peerless”
?Two ships Peerless
?Seller had in mind delivery on December Peerless
?Buyer had in mind delivery on October Peerless
?Buyer rejected and seller sued
Decision
?Court found no contract because no “consensus ad idem”
?no agreement on same thing
Subjective theory of contract
?Raffles usually cited as example of subjective theory of contract
?Existence of contract requires actual agreement of parties
?Must have “meeting of the minds”
Objective intent approach（客观法）
The rule that contracts should be interpreted according to the understanding that a reasonable person would have had at the time the agreement was made.
?Look only at the circumstances as they would seem to an impartial bystander.
Subjective theory of contract
?Raffles usually cited as example of subjective theory of contract
?Existence of contract requires actual agreement of parties
?Must have “meeting of the minds”
?Q: How to evaluate the conduct and statement of ―reasonable person‖?
a court can look to the negotiating history of the contract and to the actual administration of the terms of the contract by the parties
Objective intent approach under CISG(客观法)
(c) where the parties were unaware of the divergence, their statements and conduct are each to be subjected to a ―reasonable
person‖standard under Art.8(2)
CISG Article 8(3)
―In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties.‖
在确定一方当事人的意旨或一个通情达理的人应有的理解时，应适当地考虑到与事实有关的一切情况，包括谈判情形、当事人之间确立的任何习惯作法、惯例和当事人其后的任何行为。
US parol evidence rule.
口头证据规则(P115)
?Art. 8(3) is a clear rejection of the US parol evidence rule.
?parol evidence rule provides that a written agreement is the final expression of the agreement of the parties, not to be modified by oral or
written negotiations
?口头证据规则要求，一旦双方当事人之间达成最终的书面协议，在这之前全部的口头的或书面的洽谈、协议均被认为已经完全地融入
该书面合同之中，最终的书面合同是双方当事人的合意的最终的和完整的陈述。
MCC-MARBLE CERAMIC, INC. v. CERAMICA NUOVA D?AGOSTINO SpA
?United States Eleventh Circuit Court of Appeals, 1998
?FACTS: MCC’s president (who did not speak Italian) signed a pre-printed contract form in Italian in Italy with Ceramica for the
purchase of tiles. The contract specified price, quality, quantity, delivery, and payment. On its reverse side it specified the procedure to follow if the tiles delivered by Ceramica were non-conforming. Under the signature line on the front was a statement in Italian that said that the buyer was aware of all of the conditions of the reverse of the form. Later, when Ceramica sent non-conforming tiles, MCC did not follow the procedure specified on the reverse of the signed form. Instead, it reduced the amount of its payment to Ceramica (as it is entitled to do under the UN CISG). Later yet, when Ceramica did not satisfy several orders, MCC sued for breach of contract.
Ceramica responded that it was under no obligation to deliver the order because MCC had not fully paid for previous shipments and had not followed the procedure for complaining of non-conforming shipments. MCC sought to introduce evidence to show that the terms on the reverse of printed contract form were not intended to be part of the contract. The trial court rejected MCC’s offered evidence and relied solely on the terms of the contract. It granted Ceramica’s motion for summary judgment.
ISSUES: (1) Must the subjective intent of the parties be considered in determining the term of a CISG contract?
(2) Does the parol evidence rule apply to CISG contracts?
Problems In Contract Interpretation: Parole Evidence
?UCC: If contract is final written expression, then parole evidence is not admissible to contradict.
?CISG: Court may consider all relevant circumstances.
?MCC Marble Ceramic v. Ceramica Nuova
Unit 3Contract Law for the International Sale of Goods
Outline
?Definition of Contract
?Forms of Contract
?Requirements of a Valid Contract under common Law
?Offer and Acceptance
?Consideration
Part I. What agreement can be applied by “Contract Law” in China?
Law of Sales: China
?Contract Law in China: based on both socialist and western civil law principles.
?In 1999, China enacted a single comprehensive Contract Law for The People’s Republic of China.
?Applies to sales, but also electricity, loans, construction, transfer of technology, agency, and brokerage agreements.
Law of Sales: UCC Article 2
?American Law: UCC Article 2 governs sales transactions.
?Art. 2 applies to transaction in goods:
?Goods are personal property that is tangible and movable.
?Does not apply to intangibles (patents) or real property.
?Standardized sales law in 50 states with some individual state variation.
Definition of Contract
Art.2 of China Contract Law:
A contract in this Law refers to an agreement establishing, modifying and terminating the civil rights and obligations between subjects of equal footing, that is, between natural persons, legal persons or other organizations.
Definition of Contract
common law:
1.Contract means a promise or set of promises.(允诺或一组允诺)
2.These promises will be legally binding.
Civil Law: contract is a ―meeting of minds ‖or ―mutual assent ‖ (意思的一致) with the legally binding effect. with legally binding effect
? It means the intention between the parties being to create legal relations. ? Not merely to exchange mutual promises.
? Within such relations, the obligations of the parties are enforced or recognized by the law.
Requirements of a Contract (under common law)
The four requirements that constitute what are known as the elements of a contract are:Agreement Consideration Capacity Legality Agreement----Requirements of the Offer&Acceptance
Requirements of the Offer( common law)——intent communication definiteness
An offer (要约）– a definite promise or proposal made by the offeror to the offeree with the intention to be bound by such promise or proposal without further negotiation. Intent ( common law)
? a person ? intention corresponding to the reasonable meaning of his words and acts. ? whether a statement is intended as an offer? ? The outward expression —objective (preferred)
? the secret or unexpressed intent ---subjective (NOT) ? The words and acts are judged by reasonable standard.
Joke ( Lucy v. Zehmer )
? Ida Zehmers, owners of the Ferguson farm, operated a local restaurant. One evening their old friend W. O. Lucy met them at the
restaurant, and after a few drinks and a lot of talk, the Zehmers signed a writing that said that they promised to sell W. O. Lucy the Ferguson farm for $50,000 cash.
Consider the following questions when reading the case.
? Did A. H. Zehmer believe that his writing was an offer or a joke? ? Did W.O. Lucy believe that Zehmer ’s writing was an offer or a joke?
? Would a reasonable person, viewing the events at the restaurant, believe that the writing was an offer or a joke? Advertisement (Lefkowitz v. Great Minneapolis Surplus Store)
? Compare the following two advertisements. Are both ad. offers, or are they simply invitations to negotiate?
Offer (details)
An advertisement may sometimes be an offer and sometimes be an invitation to treat – the crucial point – definite intention to be bound
Carlill v Carbolic Smoke Ball [1893] 1 QB 256 Partridge v Crittenden [1968] 2 All ER 421 Definiteness
Where the offer is clear, definite, and explicit, and leaves nothing open for negotiation, it constitutes an offer, otherwise, invitation of offer (要约之引诱,要约邀请)
Offer must be distinguish from ―invitation to offer‖/‖invitation to treat‖
Starting point: Is there a contract/agreement ? (check the definition of a contact/agreement) - Ask: Is there any acceptance (check the definition of acceptance)
- The step before acceptance is an offer.
-
The step before an offer is invitation to offer. Case for communication:案例
Retailer in State A decides to go into the catalog sales business in State B. Both countries are parties to CISG. Retailer purchases a mailing list from Ace Credit Card Company. The list has the names and addresses of 500,000 persons owning Ace credit cards in State B, and Retailer uses this to prepare mailing labels. John Q Public receives a catalog addressed to him personally from Retailer. The catalog describes various types of widgets and gives prices for each one. Has the Retailer made an offer to sell the widgets? If John accepts, will there be a binding contract? Termination of offer(失效）
? By acceptance
?
By rejection – a counter-offer is a rejection ; a request for information is not a rejection
Saturday 9 A.M.Sharp 3 Brand New Fur Coats Worth to $100.00 First Come First Served $1 Each
Saturday 9 A.M. 1 Black Lapin Stole Beautiful,
Worth $139.50 … $1.00 First Come First Served
?By revocation（撤销）
?By lapse of reasonable time（过期）
After termination, the offer is no longer a valid offer and cannot be accepted.
Revocation of offer (要约的撤销）
Revocation of offer means that the offeror notifies the offeree before acceptance of the invalidity of the offer so as to be free from it .
CISG
Art.16 of CISG and some civil law countries have the similar opinion on revocation of offer.
General Rule:
Untill a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. Exception:
(1) The offeror must expressly state the offer is irrevocable, or
(2) An offeror’s promise to keep an offer open for a fixed period is enforceable.
(3)The offeror’s conduct must imply that the offer is firm.
Offer (details)
Revocation of promise（common Law)
General Rule: promise can be revoked at any time before acceptance
Exception1:
(1)when the offeror undertakes a contractual obligation or
(2) the offeror “receives consideration” to keep the offer open
(3)Another binding contract signed and sealed
Exception2: (UCC Art.2-205)
(1)when the offeror undertakes a contractual obligation
Or(2) an offer for sale of goods is in writing and signed
Acceptance
?Mutual Assent: Consent
?Communication of Acceptance
?The Mirror Images
?The battle of Forms
Mutual Assent: Acceptance
?Express or implied consent is required.
?Under CISG may accept by sending goods or payment (article 18), if this is accepted in the trade or was a practice with the parties.
?Generally silence is not acceptance
Exception(common law):
?There is some evidence that the silence was intended by the offeree as accetance,or prior dealing or other circumstances impose on the offeree a duty to reply.
Acceptance: When Effective
?Common law: acceptance effective upon dispatch.
?CISG: acceptance is effective when it reaches offeror (Article 16). Thus an acceptance can be withdrawn (撤回)if it overtakes the acceptance.
?Case Chateau des Charmes Wines Ltd v. Sabaté (2003). →
案例ateau des Charmes v. Sabaté
?Facts: A oral contract was negotiated for the sale of corks between a French company‘s U.S. subsidiary and a Canadian company. They agreed by phone on the quantity, price, payment and shipping terms. An invoice with each shipment stated that disputes would be heard in Perpignan (France). The buyer sued alleging that the wine corks(软木塞) distorted the taste of wine. Chateau argued that they had an oral contract without a forum selection clause(法院选择条款). Issue: Was the verbal contract binding under the CISG?
Holding : Yes. Because the contract was governed by the CISG, the telephone agreement formed the contract. The subsequent confirmation with the forum selection clause did not modify the contract
Acceptance（communication)
When parties are not face to face
?By post and telegram – Postal Rule
?Other instantaneous means of communication
Acceptance:
instantaneous communications（即时性到达）
Contracts concluded by instantaneous means of communication like email, telex, telephone, fax, etc. – acceptance must be received by the offeror
Entores Ltd v Miles Far East Corporation [1955] 2 QB 327: P in London sent a telex to D in Amsterdam offering to buy goods from D. D sent a
telex in return to P accepting the offer. Held: acceptance must be received.
The mirror image rule (镜相原则）
The mirror image rule requires that an acceptance be unconditional and that in not attempt to change any of the terms proposed in the offer.
______under traditional common law
Traditional Contract Law
?The parties enter into preliminary negotiations seeking a contract.
?At some point, one party makes an offer.
?The other party reviews the offer and decides whether to accept.
?The other party can accept, reject, or make counter-offer.
?The process continues until a contract is formed or the parties break off negotiations.
Background (2)
?Modern contract making often does not proceed in this way.
?In commercial transactions, one party will often submit an order using its standard form document.
?The other party will respond using its own standard form document.
Background (3)
?Sometimes there may be negotiations over basic terms such as price and delivery date.
?Standard terms are rarely discussed.
?Parties often behave as if a contract exists, even though standard terms do not agree or are in conflict.
?This situation is commonly referred to as the “battle of the forms”.
Questions:
?Does contract exist?
?If the contract exists, are the terms disagreed the terms of contracts?
Leading case to-Lith, Ltd.v. F.P. Bartlett & Co. (First Circuit Court of Appeals 1962)
Facts
?Plaintiff manufactured cellophane bags used for wrapping vegetables.
?Defendant supplied a chemical used to seal the bags.
?Plaintiff placed an order for the chemical using its standard order form.
?Defendant accepted using a form that disclaimed all warranties.
Facts (2)
?Defendant’s acceptance stated that plaintiff must notify defendant immediately if its terms were not acceptable.
?Plaintiff did not object and accepted delivery of the shipment of chemicals.
?The chemical was defective and the plaintiff brought suit for breach of warranty.
-------“battle of the forms”
Decision
?The court held that the defendant seller’s form constituted a counteroffer rather than an acceptance.
?The buyer accepted the counteroffer by receiving the chemical without objection.
?Therefore, the defendant’s disclaimer of warranties was part of the contract.
“last shot”
?So long as the parties act as if they have a contract, then a contract exists.
?This contract’s term consists of :
(1)The terms on which they agreeed
And (2)which are added by one party’s form without objection by the other party.
***Confilicting terms or those on which they disagree are disregarded.
Decision
?The court held that the defendant seller’s form constituted a counteroffer rather than an acceptance.
?The buyer accepted the counteroffer by receiving the chemical without objection.
?Therefore, the defendant’s disclaimer of warranties was part of the contract.
-------“battle of the forms”
Current US law
?Roto-Lith is now governed by UCC §2-207, which was revised recently.
UCC §2-207 (2004 rev.)
Terms of Contract; Effect of Confirmation
(1) Subject to Section 2-202, if (i) conduct by both parties recognizes the existence of a contract although their records do not otherwise establish a contract, (ii) a contract is formed by an offer and acceptance, or (iii) a contract formed in any manner is confirmed by a record that contains terms additional to or different from those in the contract being confirmed, the terms of the contract are:
UCC §2-207
(a) terms that appear in the records of both parties;
(b) terms, whether in a record or not, to which both parties agree; and
(c) terms supplied or incorporated under any provision of this Act.
Roto-Lith under revised 2-207
? A contract exists by virtue of the conduct of the parties.
?The parties did not agree on a disclaimer of warranties, nor does that term appear in both forms.
?Therefore the contract includes terms supplied by the Code
?Disclaimers are not implied terms
?Warranty of merchantability(商品的适用性担保) is an implied term, UCC §2-314.
?If the chemical was defective, the plaintiff could recover for breach of this warranty and the disclaimer would not apply.
Result under UCC
?So under UCC, there was a contract, but the disclaimer would not apply, which of result of the suit is quite different with the case’s decision.
Battle of the Forms
under CISG, Art. 19
?Acceptance containing new terms that do not materially alter become part of the contract unless there is a prompt objection
CISG Art.19(2)(P124)
(2) CISG cont‘d
?if the terms materially alter then it is rejection of the offer and a counteroffer (not a contract without the new terms)
?Materiality defined broadly including price, payment, quality, quantity, place and time of delivery, liability
Analysis of CISG on battle of the forms
?Result unclear but appears to adopt traditional view of Roto-Lith decision.
?However, sufficiently unclear that courts could reach results similar to current UCC 2-207.
Consideration
合同（英美法）分为签字蜡封的合同和简式合同.字蜡封的合同的有效性无对价要求，简式合同必须有对价
leading case mer v. Sidway (NY 1891) 案例
Facts
?Wedding celebration
?William Story, Sr. uncle of William Story, 2d
?Uncle, in presence of guests and family, promised that if nephew “would refrain from drinking, using tobacco, swearing and playing cards or billiards for money until he became twenty-one years of age he would pay him a sum of $5,000”
?Nephew “assented” and fully performed
?Uncle died and estate refused to pay.
Analysis of Hamer
?Estate argued no consideration because nephew benefited rather than harmed by refraining from various activities.
?Court finds promise enforceable.
?Consideration consists of either a benefit received by promisor or detriment suffered by promisee because of promise.
?Nephew suffered detriment because refrained from doing things that had right or power to do.
Consideration (对价)
Consideration is broken down into two parts:
(1)something of legally sufficient value must be given in exchange for the promise
作为对允诺的回报,给予合法的、真实的、有价值的东西。
(2)there must be a bargained-for exchange
必须存在相互交换性
(简单地说, 对价是购买某种―允诺‖的对价）
General Rules on Consideration
(1)Consideration required for all simple contracts.
(2)Consideration must have a value that is recognized by the law but need not be equal to the promise.
S u f f i c i e n c y o f C o n s i d e r a t i o n
?To be legally sufficient, consideration must involve a legal detriment to the promisee(受允诺人受损）, a legal benefit to the promisor（允诺人获益）.
?One incurs a legal detriment by doing something that one had no prior legal duty to do.(法律上的义务不能作为对价）
Adequacy of Consideration
?Adequacy of consideration relates to “how much” consideration is given and whether a fair bargain was reached.
?The general rule is that courts will NOT inquire into the adequacy of the consideration.
(3)Consideration must be present or future and cannot be past.
(4)Consideration must be legal.
(5)Consideration must move from the promisee(受允诺方).
Modern US Law
?US law still requires consideration to enforce standard contract.
?Restatement (Second) of Contracts §17. ：
（1）Except as stated in Subsection (2), the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.
（2）. . .
?BUT Some contracts except simple contract do NOT need the consideration.
CISG: Contract Law
?CISG §11
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.
Flexibility on Consideration
(Exceptions to the Consideration Requirement)
?Contract under seal does not need consideration.
?Promissory Estoppel(禁止反言)
Promissory estoppel allows a variety of promises to be enforced despite the fact that they lack what is formally regarded as consideration. Where denying enforcement of promise would produce a serious injustice, the promisor (允诺人)has to the legal enforcement of the promise without consideration.
CASE:ernie Blowhard tells Arthur Artist that Blowhard has a contract to make a movie and wants Artist to paint the background scenery in return for a percentage of the profits. Artist paints, and Blowhard then admits he needed the scenery to try to get a movie deal which fell through and there are no profits to share. Artist sues.
Q:(1)Was there consideration?
(2) Was Blowhard?s promiser enforcable? Why?
The judge finds that Blowhard cannot deny a contract with Artist and gives Artist judgment for the value of his work.
Promissory Estoppel(禁止反言)
?Certain elements must be established to invoke promissory estoppel:
? A promisor:one who makes a promise—so that he should reasonably have expected to induce action or forbearance of a definite and
substantial character on the part of the promisee
?The promisee justifiably relies on the promise. A substantial detriment —that is, an economic loss—ensues to the promisee from action
or forbearance.
?Injustice can be avoided only by enforcing the promise.
案例the Senior Chief Assistant in the law department of Mega Branch Industries (MBI) you have been assigned to oversee the negotiation and signing of one of the largest contracts that MBI has ever been involved in. The MBI subsidiary that is most directly involved is located in a state that is a member of the UN Convention on Contracts for the International Sale of Goods (CISG). Three other firms are also going to be parties to the contract. One is located in another country that is a member of CISG; the other two are not. One of the latter is located in a state that has a civil law legal system; the other is located in state that has a common law legal system.
(1)Must the contract be in writing? Must it be under seal?
(2)If one of the parties makes an offer and promises to keep it open for a period of 30 days, can it later change its mind and withdraw the offer?
(3)When does an acceptance become effective? Does it matter if the acceptance calls for minor changes in the terms contained in the offer?
Case:
On January 1, Seller sent a letter to Buyer offering to sell to Buyer 5,000 widgets for $25 apiece. The letter also stated: ―This offer is binding and irrevocable until February 1.‖ On January 5, prior to Buyer’s receipt of the letter, Seller called Buyer on the telephone and left the following message on the answering machine at Buyer’s place of business: ―Ignore my letter of January 1. I have decided to withdraw the offer contained in it.‖ On January 7, after listening to her answering machine and reading the letter that arrived that same day, Buyer sent Seller the following telegram:― I accept your offer of January 1.‖ Is there a contract under CISG?
UNITED TECHNOLO-GIES INTERNATIONAL, INC. v. MAGYAR LéGI K?ZLEKEDéSI VáLLALAT
?Hungary, Metropolitan Court of Budapest, 1992
?FACTS: Pratt and Whitney (P&W) offered to sell Málev Hungarian Airlines (MHA) either two or three PW4000 series engines for installation in a Boeing aircraft or two or three PW4100 series engines for installation in an Airbus aircraft. The offer stated different prices for the different series engines. One week later, MHA sent a letter accepting the offer for the PW4000 series engines. When MHA reneged on going forward with the purchase, P&W sued to obtain a declaratory judgment that a contract existed.
(1) Was there an offer?
(2) Was there an acceptance?
Case abstracts
?The [seller], an American manufacturer of aircraft engines, further to extensive negotiations with the [buyer], a Hungarian manufacturer of Tupolev aircraft, made two alternative offers of different types of aircraft engines without quoting an exact price. The [buyer] chose the type of engine from the ones offered and placed an order.
?an issue was whether a valid contract was concluded.
?The court of first instance held that a valid contract had been concluded on the ground that the offer indicated the goods and made provision for detemining the quantity and the price.
?The Supreme Court found that the offer and the acceptance were vague and, as such, ineffective since they failed to explicitly or implicitly fix or make provision for determining the price of the engines ordered (Article 14(1) CISG). The Supreme Court considered that the acceptance was a mere expression of the intentions of the [buyer] to conclude a contract for the purchase of the engines chosen and, as such, the acceptance could not operate as a counter-offer. The Supreme Court therefore overturned the decision of the first instance and held that there was no valid contract concluded.
Unit 3 (still continued)Remedies for Breach of Contract
Outline
?Performance of Contract
?Breach of Contract
English Common Law American Law CISG
?Remedies for Breach of Contract
specific performance Damages Rescission
?Events Beyond the Control of the Parties
Performance of Contracts
?Performance of the Seller.
?Primary responsibility is to deliver conforming goods.
?Implied Representations.
?UCC: creates implied warranties(默示担保See P126) on goods.
?CISG: seller must deliver goods that are of the quantity, quality, and description required by the contract.
?Goods Fit for a Particular Purpose.
Disclaiming Implied Warranties
?UCC: seller may disclaim only by conspicuous words ―as is‖
?DISCLAIMER OF ADDITIONAL WARRANTIES; REMEDIES. "As Is".
不承担额外担保和补偿责任声明。―声明条文照旧‖。
?CISG: 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. The notice must be specific, and cannot be vague, such as ―poor
workmanship.‖See P129
Types of Breach of Contract
?English Common Law
?Breach of conditions(违反条件)
---claim of damages and cancellation of contract
?Breach of warranties(违反担保)
---only claim of damages
?Breach of intermediate (违反中间条款)
---cancellation of contract is determined by the seriousness of breach.
Types of Breach of Contract
?A m e r i c a n C o n t r a c t L a w
?M a t e r i a l B r e a c h“重大违约”
?M a t e r i a l b r e a c h d e p e n d s u p o n t h e s e r i o u s n e s s o f t h e b r e a c h a n d t h e p r o b a b i l i t y t h a t t h e i n j u r e d p a r t y c a n o b t a i n w h a t i t b a r g a i n e d f o r u n d e r t h e c o n t r a c t.
?M i n o r B r e a c h轻微违约
?A m i n o r b r e a c h,a p a r t i a l b r e a c h o r a n i m m a t e r i a l b r e a c h
?T o d e t e r m i n e w h e t h e r a b r e a c h w a s m a t e r i a l(判断标准),a c o u r t l o o k s t o t h e t o t a l a m o u n t o f p e r f o r m a n c e t h a t t h e n o n-b r e a c h i n g p a r t y
h a s a l r e a d y r e c e i v e d a t t h e t i m e o f t h e b r e a c h
?
?.
?Avoidance of the contract.
?Seller‘s right to remedy or cure.
?Seller‘s additional time to perform.
?Price reduction.
?Money damages.
?Specific performance.
Avoidance (Rejection )
?UCC:
?perfect tender rule
?See the next page
?CISG: buyer can avoid only if fundamental breach
?Buyer need not take delivery- avoid the contract
?Avoidance: cancel contract and notify seller ( must protect goods)
perfect tender rule under UCC
?It means that in a contract for the sale of goods, if the goods fail in any respect (whether as to quality, quantity or manner of delivery) to
conform exactly to the description in the contract the buyer may reject the goods and rescind the contract.
?Exceptions and limits to the perfect tender rule include usage of trade, course of dealing and course of performance.
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.
?See the example P131
Seller’s Right to Remedy:
Nachfrist Period(催告期)
?A d d i t i o n a l t i m e t o p e r f o r m.
?I f i t d o e s n o t c a u s e“u n r e a s o n a b l e d e l a y”o r“u n r e a s o n a b l e i n c o n v e n i e n c e.”
?I f s e l l e r a s k s f o r a d d i t i o n a l t i m e a n d t h e b u y e r d o e s n o t r e s p o n d,t h e s e l l e r m a y h a v e t h e a d d i t i o n a l t i m e.
?C I S G t r i e s t o k e e p p a r t i e s i n t h e i r c o n t r a c t.
?U C C d o e s n o t h a v e t h i s p e r i o d p r o v i s i o n.
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.
Price Reduction
?If there is only a partial shipment or goods are nonconforming, buyer may adjust price.
?May use whether or not breach is fundamental.
Types of Monetary Damages
Incidental Damages Compensatory Damages Consequential Damages Nominal Damages
Liquidated Damages
Compensatory Damages
?Award of money intended to compensate a non-breaching party for the loss of the bargain.
?They place the non-breaching party in the same position as if the contract had been fully performed by restoring the “benefit of the
bargain.”
Consequential Damages
?C o n s e q u e n t i a l d a m a g e s(间接损害)a r e d a m a g e s t h a t d o n o t r e s u l t d i r e c t l y a n d i m m e d i a t e l y f r o m a b r e a c h b u t r a t h e r f r o m t h e r e s u l t s o f
t h a t b r e a c h
?F o r e s e e a b l e d a m a g e s t h a t a r i s e f r o m c i r c u m s t a n c e s o u t s i d e t h e c o n t r a c t.
?T o b e l i a b l e f o r t h e s e d a m a g e s,
?T h e b r e a c h i n g p a r t y m u s t k n o w o r h a v e r e a s o n t o k n o w t h a t t h e b r e a c h w i l l c a u s e s p e c i a l d a m a g e s t o t h e o t h e r p a r t y.
Incidental Damages
?i n c i d e n t a l d a m a g e s(附带损害)c o m p e n s a t e f o r r e a s o n a b l e c o s t s t h a t t h e i n j u r e d p a r t y i n c u r s a f t e r t h e b r e a c h i n a n e f f o r t t o a v o i d f u r t h e r
l o s s.
?S e e t h e d i f f e r e n c e s b e t w e e n U C C a n d C I S G P133(E x h b i t4.6)
Consequential damages 间接损害damages that do not result directly and immediately from a breach but rather from the results of that breach
incidental damages附带损害reasonable costs that the injured party incurs after the breach in an effort to avoid further loss.
Buyer: expenses reasonably incurred in inspection, receipt, transportation.
Reliance damages信赖损害costs expended by the injured party in preparation for or partial performance prior to the time of breach. Liquidated Damages(约定损害)
?Damages to which parties to a contract agree in advance if the contract is breached.
?To be lawful,
?The actual damages must be difficult or impracticable to determine, and
?The liquidated amount must be reasonable in the circumstances.
?Punitive Damages.(惩罚性损害赔偿)
?Available when tort is also involved.
?Nominal Damages.(名义的损害赔偿)
?No financial loss, just to clarify the rights and obligations in the contract.
2. What are required for damages?
civil law: (1) There is damage available.
(2) The debtor must be at ―fault‖
3) Damage must be resulted by debtor’s fault.
Anglo-American law: (1) Breach of contract may lead to the action of damage recovery.
(2) No fault is required.
(3) No actual damage are required.
NOTE: No actual damage(实际损失), no rights to claim material damages(实质赔偿), but nominal damages(名义上的赔偿)
4. Liquidated Damages vs. Penalties
?Liquidated Damages.(违约金)
?A contract provides a specific amount to be paid as damages in the event of future default or breach of contract.
?Penalties.(罚金)
?Specify a certain amount to be paid in the event of a default or breach of contract and are designed to penalize the breaching party
?Germany Law
Liquidated damages can be penalty. Liquidated damages and other damages can be claimed in the same time.
?Anglo-American Law
Penalty is not permitted. If the amount in the contract is judged as liquidated damages, other damages could still be claimed.
Money Damages under CISG
?Article 74 –―sum equal to the loss.‖
?May include consequential damages ( lost profits) if foreseeable.
?Case Delchi Carrier, SpA v. Rotorex Corp (1994)P132: Plaintiff was awarded compensatory damages and lost profits that can be
established by reasonable certainty.
Mitigation of Damages
?When breach of contract occurs, the innocent injured party is held to a duty to reduce the damages that he or she suffered.
?This duty is all required by civil law, Anglo-American Law (incidental damages) and CISG
Specific Performance
?UCC: limited to special circumstances.
?CISG: draws from civil law tradition.
?Specific performance available.
?Exemption for countries that do not have such a provision under their own law.
Anticipatory Breach
?Either party may suspend performance after notice of anticipatory breach.
?Right to Suspend Performance.
?Right to Avoid for Anticipatory Breach.
?Avoidance of Installment Contracts.
Events Beyond the Control of the Parties: Excuses for non performance (1) P137
?Impossibility履行不能: in cases involving the death of one of the parties, the destruction of the specific subject matter of the contract, or
when performance of the contract has been rendered illegal or made impossible due to the fault of the other party. _____ physical impossibility.
?Example: a U.S. company is under contracts to ship computers to Iraq.
After Iraq‘s invasion of Kuwait, the U.S. government declared that conducting business with Iraq or shipping goods there was illegal. Because the contract has been rendered illegal, nonperformance is excused.
Events Beyond the Control of the Parties: Excuses for non performance (2)
?Frustration of Purpose (rare)(合同目的落空).P137 :
?Frustration is sometimes called commercial frustration which occurs when unexpected events arise making the performance of the
contract meaningless (no value) to a party.
? a frustration defense can only be used if the contract has lost all of its value.
?It will fail if a contract has only lost some value or has not met profit expectations.
Events Beyond the Control of the Parties: Excuses for non performance (2)
?Force majeure clauses (superior force).不可抗力条款
It excuses a party from failing to perform on the occurrence of an event specified in the clause itself
Harriscom case →Harriscom Svenska v. Harris
?RF( a division of Harris) appointed Harriscom (Swedish) firm to distribute radio products in Iran. The contract had a force majeure
clause. The U.S. government prohibited all sales to Iran. RF agreed to voluntarily withdraw from further sales to Iran. Harriscom sued RF for breach of contract.
?Issue: Does the force majeure clause relieve RF/ Harris from supplying Harriscom?
?
1.Specific performance is available to a non-breaching party who prefers it as compensation for his or her injury rather than accepting damages.
2. Specific performance may be available in a contract for the sale of goods if the goods are unique.
3.Specific performance is not available when the breach is a failure to pay money.
Exercises (cont?d)
4.Liquidated damages are those imposed on the parties by the court.
5.Parties to a contract may agree upon what damages will be in the event of a breach and incorporate this agreement in a provision known as a liquidated damage clause.
6.All liquidated damage clauses are enforceable.
7. Liquidated damage clauses that are classified by the court as penalties are unenforceable.
As the Senior Chief Assistant in the law department of Mega Branch Industries (MBI) you have been assigned to oversee the negotiation and signing of one of the largest contracts that MBI has ever been involved in. The MBI subsidiary that is most directly involved is located in a state that is a member of the UN Convention on Contracts for the International Sale of Goods (CISG). Three other firms are also going to be parties to the contract. One is located in another country that is a member of CISG; the other two are not. One of the latter is located in a state that has a civil law legal system; the other is located in state that has a common law legal system.
(1)If a party does breach, can the other parties avoid their obligations to perform? Can all of the provisions of the contract ---including the choice of law clause ---be avoided?
(2)If a party fails to perform, can a court intervene and order the party to perform? Are there any limits on what a court may order a party to do?
(3)If nothing is said in the contract, where must the seller deliver the goods? When must delivery be made? Where and when must documents of title be turned over?
(4)What must a buyer do to reject nonconforming goods?
(5)At what point in time will the buyer become liable for any accidental loss or damage suffered by the goods?
(6) What duty does a party have to keep the damages caused by another party’s breach to a minimum?
U N I T4I n t e r n a t i o n a l C a r r i a g e o f G o o d s
M e t h o d s o f t h e d e l i v e r y运输方式
Ocean transport 海洋运输Railway transport 铁路运输Air transport 航空运输
Container Transport 集装箱运输Land Bridge Transport 大陆桥运输International Multimodal Transport 国际多式联运
O c e a n T r a n s p o r t海洋运输
1Shipping by chartering or tramp 租船运输又称不定期船运输
2Liner transport 班轮运输
Section A. International Carriage of Goods by Sea I Liner Transportation
A liner is a vessel with regular sailings and arrivals on a stated schedule between specific ports. 1. fixed time 2. fixed line 3. fixed ports 4. fixed rate
The carrier is responsible for loading and unloading operations. II. Bill of Lading (B/L)
1. Definition of B/L (sample)
A bill of lading is a document which serves as an evidence of the contract of carriage of goods by sea and the taking over or loading of the goods by the carrier, and based on which the carrier undertakes to deliver the goods against surrendering the same. 2. Types of B/L
(1) Straight B/L(2) Order B/L(3) Bearer B/L(4) Clean B/L(5) Foul B/L(6) Transshipment B/L
1.The shipper delivers goods to the carrier
2.The carrier or his agent issues the B/L
3.The shipper delivers the B/L to the bank
4.The bank pays the shipper in advance
5.The consignee pays the bank
6.The bank gives the B/L to the consignee
7.The consignee surrenders B/L
8.The carrier delivers goods to the consignee
Legal Functions of B/L
III. Legal Framework of the laws governing B/L 1. International Conventions
(1) Hague Rules (International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, 1924) (2) Visby Rules (The Hague Rules as Amended by the Brussels Protocol, 1968)
(3) Hamburg Rules (United Nations Convention on the Carriage of Goods by Sea,1978) Liability of Carriage of Goods by Sea (COGSA)
History- a codification of The Hague Rules ; great liability for the carrier.
Carriage of Goods by Sea Act (COGSA) carries this tradition that try to limit liability.
COGSA Principles
CARRIER MUST USE DUE DILIGENCE AT THE BEGINNING OF THE VOYAGE.
But carrier is protected from certain claims from fire, storm, navigation and ship management
Shipper has the burden of proving that the goods were loaded in good condition and delivered in damaged condition.
Written notice of the damage must be given to the carrier before or at the time of taking the goods or if the damage is not visible then within 3 days of delivery.
A claim must be filed within one year.
Failure to give notice creates a rebuttable presumption that the goods were in good condition.
COGSA
Burden shifts to the carrier.
Carrier is liable for damage to the cargo from failure to use due diligence to make the ship seaworthy at its departure. Warranty of seaworthiness. Carrier ’s Immunities
Under the Hague Rules and Hague-Visby rules, there are the 17 immunities to excuse the carrier’s liability.
These two conventions exempt carriers from almost all liability from damages.
The main differences on Carrier’s immunities between the Hague Rules and the Hamburg Rules.
1. the carrier’ period of responsibility :
Hague Rules: From Tackle to Tackle
Hamburg Rules: From the time the carrier has taken over the goods to the time he has delivered the goods.
2. The Hamburg Rules cancelled carrier’s immunities from the act, neglect, or default of the master, marine, pilot, or the servants of the carrier in the navigation or in the management of the ship.
Exceptions to Liability under COGSA
●Errors in navigation or management.2、Fire unless the fault is shippers, e.g. cigarette.3、Perils of the Sea.4、Act of God.（天灾）5、Act of war.6、Act of public enemies.7、Legal seizure.8Quarantine(隔离检疫）9、Labor strikes.10、Insufficient packing. 11、Riots.12、Saving life or property at sea.13Inherent defect in goods.14、Inadequate marking of goods.15、Latent (hidden) defects in ship.
The 17th Exception: the ―Q-Clause‖P189
B asically a general exception as long as the carrier can prove it wasn‘t his fault and can show what was the cause of the los s.
Carrier‘s Liability for Cargo Shortages
Carrier may be responsible unless can use Q clause defense.
The Q-clause defense
The Q-clause defense: a carrier is not liable for “any other cause arising without the actual fault and privity of the carrier… but the burden of proof shall be on the (carrier) to show tha neither the actual fault…not the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.”
The burden of proof is on carrier.
WestWay Coffee v. Netuno :
Westway, the consignee, purchased 1710cartons of coffee from Dominium, S.A, of Sao Paulo, Brazil. The cartons were loaded into six cargo containers under the supervision of a government officer who inspected an counted the cartons going into the containers. Dominium sealed and padlocked the containers. The containers were then driven from Sao Paulo to the port of Santos, where they were stored in a customs bonded warehouse prior to loading onto the MV Netuno, a vessel owned by Netumar. Netumar issued an onboard bill of lading listing the serial numbers of the containers, along with the gross weight of the containers filled with coffee and the number of cartons within therr.. Netumar did not count the cartons. The bill of lading contained disclaimers stating that the containers were “said to contain” a quantity of cargo described by the shipper, that the cargo was the “shipper’s load and count,” and that the “contents of packages are shipper’s declaration.” After the Netuno’s arrival in New York, th padlocked containers were opened , revealing a shortage of 419 cartons or approximately twenty tons of coffee. Westway purchased the bill of lading and then brought this action against the carrier under the Carriage of Goods by Sea Act .
Is carrier liable?
How the judge explained?
D ecision : The carrier was not permitted to relieve itself of liability for the shortage by claiming that the weight or quantity of cargo
stated on the bill of lading was the weight or count of the shipper.
●Appeal: the Second Circuit confirmed that the carrier would have had a defense against a claim for shortage of weight if it had weighted the container at loading, listed that weight on the bill of lading , and then weighed it again at unloading and found the same weight.
Carrier‘s Liability for Cargo Shortages(P190)
B ut see Plastique tags v. Asia Trans.
is the carrier liable for the shortages?
carrier was not liable.
. Why the different result?
Answer:
“Said to Contain 5600
boxes/4.437,500 plastic bags.”
Container’s disclaimer :the
Shippers Load and Count”
the serial numbers of the containers,
along with the gross weight of the
containers filled with coffee and the
number of cartons within them
Carrier’s disclaimer:“shipper’s w eight,
load, and count”
Plastique tags v. Asia Trans
WestWay Coffee v. Netuno
The bill of lading
‘s words
Because in Plastique bill of lading only referenced the number of boxes and bags, no weight, that it was impossible for the carrier could not verify the accuracy of the shipper‘s representation
VI. Charter Party or Tramp 租船运输又称不定期船运输
A tramp is a freight-carrying vessel which has no regular route (航程) or schedule of sailings (船期表).
?Voyage Charter 航次租船
According to the route stipulated in the charter party, the ship-owner（船东）is responsible for delivering the goods to the port of destination and for managing the ship as well as bearing all expenses.
1、Single voyage charter 单航次租船
2、Return voyage charter 来回航次租船
3、Successive voyage charter 连续航次租船
?Time Charter 定期租船
The charterer (租船者) charters the ship for a period of time during which the ship is deployed (调度) and managed by the charterer.
Charterer‘s expenses: loading, unloading, stowing, trimming, fuel expenses(燃料费), port expenses usw.
Shipper-owner‘s expenses: wages and board expenses (膳食费用) of the crew (全体船员), seaworthiness expenses（船舶）适航and the vessel insurance premium
?Demise Charter or Bareboat Charter 光船租船
The ship-owner only provides the charterer with a bareboat, the charterer shall employ the crew by himself.
Charter Party 租船契约或租船合同
A contract concluded between the ship-owner and the charterer when the latter charters the ship or booking shipping space from the former.
It stipulates the rights and obligations of the two parties, such as freight, time of chartering, loading and unloading expenses etc.
Standard form of charter party
Uniform Time Charter (BALTIME) 标准定期租船合同
Uniform General Charter (GENCON) 标准杂货租船合同
GENCON)
(航次租船合同）
1。Lay days (装载期)
Charter is responsible for loading or unloading.
Lay days are the time specified in the charterparty for loading or unloading.
2航次租船合约的装卸条款（Loading/Discharging Clause）
装卸费用/有关术语Terms
出租人负担货物的装卸费用(Liner Terms)出租人不负担装货费用（Free In – F.I.）
出租人不负担卸货费用（Free Out – F.O.）出租人不负担装卸费用（Free In and Out – F.I.O.）
出租人不负担装卸、积载和平舱费用（F.I.O.S.T）出租人仅负担装货费(Liner In, Free Out)
出租人仅但负担卸货费(Free In, Liner Out)
装卸费用/风险与责任Risks and Liabilities
合约双方未有明确约定装卸费用的负担如何？应默示推定由船方承担与装卸、航行有关的费用。
即使是由承租人负担装卸等费用，船长仍对于船舶的安全装卸作业负有监管责任(under the supervision of the Master)。
装卸时间的计算Calculation（1）
按日计算：每日（per day）、每日每舱口（per hatch per day）、“每日每作业舱口”（per workable hatch per day）或“每日每可作业舱口”
按习惯尽快装卸(Customary quick despatch-CQD)
以船舶能够收货或交货的速度(As fast as the vessel can receive/deliver)
装卸时间的计算（2）- 按日计算/术语Terms
“日”的多种形式：日历日(calendar day)、工作日(working day)、晴天工作日(weather working days – W.W.D.)、连续24小时晴天工作日(weather working days of 24 consecutive hours)、晴天工作日，星期日和节假日除外(weather working day, Sunday and holiday excepted – W.W.D. SHEX)
装卸时间的起算Commencement （1）
自船长或出租人的代理人，向承租人或其代理人递交“装卸准备就绪通知书”（Notice of readiness) (“NOR”）后，经过一定时间开始起算。
装卸时间的起算Commencement （2）
船舶必须到达合同规定的港口或泊位，即船舶必须是一艘到达船舶(Arrived vessel)。
出租人为了在港口拥挤船舶不能立即靠泊时，避免等泊引起的时间损失，常常要求列入“到达即可靠泊”(Reachable on arrival),“不论靠泊与否”(Whether in berth or not-WIBON),或者“等待泊位所损失的时间计为装货／卸货时间”(Time lost waiting for berth to count as
loading/discharging time)的规定。
装卸时间的起算Commencement （3）
船舶在各方面(in every aspects)已做好装卸货物的必要准备，吊杆或吊车，起货机及其它装卸工具；
办妥海关，边防检查机关或移民局，港航监督机关，卫生检疫部门的各项必要的手续。
Demurrage（滞期费）and Dispatch Money（速遣费）
Demurrage(滞期费)is paid by charterer
-----if loading and/or discharging takes longer than the time agreed (the lay days装载期).
Dispatch Money（速遣费）is paid by owner of vessel
----- if loading and/or discharging take less than the time agreed (the lay days装载期).
B/L issued under C/P
（1）承租人是收货人情况下的提单关系
航次租船合同下承租人是收货人的关系，提单仅是租船合同的证明。租船合同是收货人与出租人的运输合同。
（2）承租人不是收货人情况下的提单关系
租船合同约束出租人与承租人的关系。
提单约束提单持有人与出租人的关系。
（3）提单中的并入条款（incorporation clause)
租船合同中的规定事项适用于提单。
Time charter
Payment of hire
(1)Monthly payment and daily payment
(2)An installment for payment is usually paid beforehand.
The effect for the fail to pay the hire: withdrawal of the ship by the shipowner.
Stop paying the fire: breach of C/P or Off-hire clause
Offhire (停租条款）under time charter
It is the exception for the payment of the hire that charterer has the right to stop the payment under the certain circumstance.
所谓停租条款是指在船舶租用期内，因约定的原因而影响或妨碍对船舶的使用时，租船人有权对无法使用船舶的时间中止支付租金的规定。
制订停租条款的原因
因航过失而靠怕碰撞、搁浅、船舶维修进坞，不可护拒的天灾、员工伤亡等情况都会在不同程度上影响租船人正常使用船舶。对于那些既非船东违约行为亦非租船人自身原因而无法正常使用船舶的情况，有必要作出相应的约定。
停租事项：
1.人员不足。船东应配备足够合格的船员以确保船舶的适航性，人员不足指实际配员不足，另指船员自身原因或生病、纠纷等外来因素
影响正常工作。
2.海损事故。船舶因海损事故会影响船舶正常使用，但不包括共同海损。与停租有关的海损必须具备两个条件：海损事故必须是意外的，
并且发生了实质性损害。
3.船舶坞修。一般期租合同中都明确规定进坞修理可以停租。
4.船舶设备故障。船东必须保持船舶的适航性，设备了生故障必须及时修复，一量影响船舶使用，租船人有权要求停租。
5.火灾。火灾是租约所规定的停租原因之一，但必须造成船期损失。
6.航速不足和燃料消耗超额也可构成停租。在签订期租合同时，船东必须谨慎对待航速条款和燃料消耗定额。
7.其它原因。停租条款中经常以“其它原因”来说明未列明的原因，但必须以妨碍船舶正常工作为前提。
停租条款实务
净时间损失条款（net loss of time clause）。通常规定“That in the event of the loss of time from…”，
需要承租人举证停租事件的发生和持续时间以及因此而受到的时间损失
期间损失条款（period clause）：通常规定“在各停租的事项要停租，直到船恢复有效的情况来提供服务”（The payment of hire shall cease until the vessel is again in an efficient state to resume her service）。
借助于停租事件本身所持续的时间长短来计算停租时间的，而不考虑该事件的时间损失的长短。
Section B Carriage of Goods by Air
I. Definition of International Carriage of Goods by Air
1. Warsaw Convention (1929)
2. Hague Protocol (1955)
3. Montreal Convention (1999)
Represents a movement from protection of the airlines to protection of travelers.
Warsaw Convention
The carrier is not liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.
Note -There is a limitation on liability.
Damage to cargo at about $10 per pound.
$75,000 death, personal injury limit.
May be exceeded if airline ―reckless.‖
So if shipper wants protection must declare and pay higher value.
Montreal Convention
On ly applies to passengers ticketed for international travel, if approved by all countries involved in the ?legs‘ of the journe y.
W ill not have to prove airline at fault in case of personal injury or death.
Montreal Convention – Application to International Carriage
S trictly liable for all damages up to $146,000 approximately
C arrier is liable for damages above that UNLESS not due to its negligence or was the sole result of negligence or wrongful acts of third parties Section C. Multimodal Transport
I. Definition of Multimodal Transport
In accordance with Article 1 of the United Nations Convention on International Multimodal Transport of Goods,
“ international multimodal transport” refers to “the carriage of goods by at least two different modes of transport on the basis of a multimodal transport contract from a place in one country at which the goods are taken in charge by the multimodal transport operator to a place designated for delivery situated in a different country”.
II. Laws governing international multimodal transport
1. United Nations Convention on International Multimodal Transport of Goods (Draft)
Drafted by UNCITRAL in 1980.
2. UNCTAD/ICC Rules for Multimodal Transport Documents
III. International multimodal transport document (sample)
1. The meaning of multimodal transport document
“Multimodal transport document” means a document which evidences a multimodal transport contract, the taking in charge of the goods by the multimodal transport operator, and an undertaking by him to deliver the goods in accordance with the terms of that contract.
IV. Liability of the multimodal transport operator (MTO)
1. Period of responsibility
The responsibility of the multimodal transport operator for the goods covers the period from the time he takes the goods in his charge to the time of their delivery.
2. Basis of liability
The multimodal transport operator shall be liable for loss resulting from loss or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay in delivery took place while the goods were in his charge, unless he proves that he, his servants or agents or any other person took all measures that could reasonably be required to avoid the occurrence and its consequences.
Unit 5PAYMENT OF INTERNATIONAL TRANSACTION
Part I Collection of Documentary Bill of Lading
1.Collection (托收）
the seller makes instructions to the bank to present for acceptance or for payment a documentary bill .
―Uniform Rules for Collection‖ (URC522)
2.Type of Collection
(1)Documents against Acceptance (D/A) 承兑交单
D/A means the documents shall be delivered to the buyer on acceptance of the bill.
(2)Documents against Payment (D/P)付款交单
This means the documents shall be delivered to the buyer on actual payment of the bill .
?The Process of Collection
?The legal relationship between applicant and collecting bank
?The legal relationship between collecting band and Presenting bank
?The risks to seller under D/P or D/A
Letter of Credit
?Documentary Letter of Credit.
–L/C is a contract –a promise by a bank (usually Buyer’s Bank) that it will pay to seller the amount of the contract price.?Issuing Bank (Buyer‘s bank), account party (Buyer), beneficiary (seller).
?Bank promises to pay the beneficiary‘s draft upon presentation of the specified documents.
?Bank‘s promise to pay is better than buyer‘s.
Law Applicable to Letters of Credit
?Art. 5 UCC.
?Uniform Customs & Practice (UCP) incorporated into LOC.
?NY law states UCP not UCC is applicable.
?Presumed Irrevocable.
?The LOC is independent of the sales contract between the buyer and seller
(案例)Independence: Maurice O’Meara v. Nati onal Park Bank of New York
?NPB issued letter of credit to Ronconi (beneficiary) at request of Sun Herald to cover a delivery of newsprint. Ronconi presents invoice and draft to bank, but bank refused because it could not test strength of paper. During this time the price of newsprint dropped over $20,000. Ronconi transferred their right to collect to O‘Meara.
?Issue: Was was bank correct under the law to refuse to pay on the letter of credit despite presentation of the proper documents because it wanted to assure itself that the paper was the proper weight?
?Holding: No, the bank wan not correct. The bank‘s obligation is to pay when presented with the documents called for in the le tter of credit. ?The contract between the buyer and seller is separate from the obligation of the bank on the letter of credit. The buyer still has a separate right of action against the seller for breach of contract.
Strict Compliance: Courtalds N.A. v.
North Carolina National Bank P229
?Bank opened letter of credit for buyer Adastra with Courtald‘s, seller, as beneficiary. The LOC covered ―100% acrylic yarn.‖ Seller presented documents with invoice ―imported acrylic yarn‖ as well as a packing list ―100% acrylic.‖Bank refused to pay. In the meantime the buyer went into bankruptcy. Lower court holds for seller and the bank appealed.
?Issue: Did the bank violate the UCP and the state law in insisting on strict compliance with the letter of credit and refusing to pay the seller upon presentation of the documents.
?No, the bank was correct in refusing to pay when the documents did not match the letter of credit. ―There is no room for documents which are almost the same or which will do just as well.‖
The UCP 600 Rule
?Changes to UCP in 2007 indicate move to modified strict compliance rule.
?Substantial standard of compliance (used by courts in United States and some European countries).(实质相符)
Substantial standard of compliance
Article 3：
–―where applicable, words in the singular include the plural and in the plural include the singular.‖单复数可忽略.
article 14d:
?Data, need not be identical
?Must not be conflicting
–出口商所交单据不一定要完全与信用证相同，只需不相抵触即可
exercise:
Under a contract to sell vanilla beans, payment was to be made by confirmed letter of credit. This called for payment against certain documents including ―a certificate of quality issued by experts who are sworn brokers‖. The seller tendered a certificate issued by a single expert and was paid by the bank, who in turn demanded payment from the buyers. In fact there was a fraudulent sale and the buyers received mainly rubbish; they refused to reimburse the bank.
Q: Should the buyer reimburse the bank under UCP600?
Substantial standard of compliance
article 14 e says:
?In documents other than the commercial invoice, the description of the goods, services or performance, if states, may be in general terms not conflicting with their description in the credit.
–除发票以外，其余单据上对货物名称的表达只要求使用与信用证不相矛盾的统称
article 18c UCP says
the description of the goods, services or performance in a commercial invoice (发票)must correspond with that appearing in the credit. ?发票上的记载仍需采用严格相符原则
5. Standby L/C (备用信用证)P231
It is issued b y the seller‘s bank and runs in favor of the buyer and payable against a writing which certifies that the seller has not perf ormed its promises.
Why? Performance guaranty.
Standby L/C (备用信用证)cont’d