Contract (continue)

The defendant offered in writing to let a pub to the plaintiff at $ 63 per month . After a conversation with the defendant's clerk, the plaintiff accepted by letter, believing that the $ 63 rental was the only payment under the written contract. In fact, the defendant had intended that a premium would also be payable and he believed that his clerk had explained this to the plaintiff. Should the plaintiff pay the premium?

Parol Evidence Rule The parol evidence rule is a substantive common l

aw rule in contract cases that prevents a party to a written contract from presenting extrinsic evidence that contradicts or adds to the written terms of the contract that appears to be whole.

There is a valid complete written contract Prior contradicted evidence are excluded (both

written and oral )

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.

Issue: Is this misrepresentation sufficiently material to justify rescission?

某厂在发放工资时，摊派每个工人每券 1 元的奖券 3 张，将奖券抵作工资与工资一同发放。工人李某为王某代领工资，并为王抽出了 3 张奖券。围观的同事要求李把替王抽的奖券开奖，李揭开奖券后发现其中 1 张中了特等奖，奖金10000 元。李去王家，告知其代王抽了 3 张奖券，并问王如果中奖将如何处置。王称如果中奖，奖金一人一半。李即告知王中奖的事实。王一听中奖当即反悔。李为索要奖金 5000 元，将王起诉至法院。

Interpretation of the contract “The sale of the property includes the sale of

the furnitures inside the property.”

- The rules of interpretation

PICCARTICLE 4.1

- Intention of the parties (1) A contract shall be interpreted according to

the common intention of the parties. (2) If such an intention cannot be established,

the contract shall be interpreted according to the meaning that reasonable persons of the same kind as the parties would give to it in the same circumstances.

How to determine the intention of the parties?

ARTICLE 4.3

(a) preliminary negotiations between the parties;(b) practices which the parties have established between

themselves;(c) the conduct of the parties subsequent to the

conclusion of the contract;(d) the nature and purpose of the contract;(e) the meaning commonly given to terms and

expressions in the trade concerned;(f) usages.

1. A contract for the writing of a book between A and B, a publisher, indicates that the book should consist of “about 300 pages”. During their negotiations B had assured A that an approximate indication of the number of pages was necessary for administrative reasons and that A was not bound to stick precisely to that number of pages, but could exceed it, substantially if need be. A submits a manuscript of 500 pages. Has A breached the contract?

2. A, a Canadian manufacturer, and B, a United States retailer, conclude a number of contracts for the delivery of optical lenses in which the price is always expressed in Canadian dollars. A makes B a new offer indicating the price in “dollars” without further specification, but intending to refer again to Canadian dollars. But B claiming it should be referred to US. dollar. Whose intention should prevail?

ARTICLE 4.4

(Reference to contract or statement as a whole)

Terms and expressions shall be interpreted in the light of the whole contract or statement in which they appear.

ARTICLE 4.5

(All terms to be given effect)

Contract terms shall be interpreted so as to give effect to all the terms rather than to deprive some of them of effect.

1999 年 1 月，福州某矿泉水公司与福州郊区一村镇经济合作社签订了“租赁土地协议书”。合作社将 13873 平方米的土地租给矿泉水公司使用，租期 30 年。租金如下： 1999至 2000年度支付 5万元， 2000至 2001年度支付 8万元， 2001至 2002年度支付 11万元， 2002至 2003年度支付 15万元， 2003到 2008年度支付 17万元。 2005 年，矿泉水公司长期欠缴租金， 合作社起诉其违约。 双方对租金的条款存在争议。

ARTICLE 4.6

If contract terms supplied by one party are unclear, an interpretation against that party is preferred.

Exception: The parties have discussed the contract

ARTICLE 4.7 (Linguistic discrepancies) Where a contract is drawn up in two or more

language versions which are equally authoritative there is, in case of discrepancy between the versions, a preference for the interpretation according to a version in which the contract was originally drawn up.

Privity of the contract

The essence of privity is that only the parties to the contract can enjoy the benefits of that contract or be held liable for liabilities in that contract. the contract benefits the third party the contract incurs damage to the third party the breach of the contract attributed to the third pa

rty

Tweddle v Atkinson The father of the groom and the father o

f the bride entered and agreement in celebration of the marriage that they would each give a sum of money to the groom, William. All seemed fine but the bride’s father died without making his payment so William tried to enforce the agreement against the executors of the will.

INTERNATIONAL RULES FOR THE INTERPRETATION OF TRADE TERMS(Incoterms)

Two important parts of International Sales Law:CISG & Incoterms

The application of CISG and Incoterms: CISG - This Convention applies to contracts of sale of goods between

parties whose places of business are in different States: (a) when the States are Contracting States; or (b) when the rules of private international law lead to the application of th

e law of a Contracting State. Incoterms – Incoterms apply to a contract of international sale of goods o

nly if the parties have incorporated them into their contract.

Incoterms

International trade custom Incoterms define 6 problems:1) Who is responsible for obtaining export licenses and import

licenses? 进出口清关2) Who is responsible for arranging transport? 安排运输3) Who is responsible for obtaining insurance? 安排投保4) The place after the terms 后跟地名5) When is the risk transferred to buyer? 风险转移6) The applicable method of transportation 适用运输方式

E 组 – 启运地交货EXW EX Works 工厂交货（指定地点卖方工厂交货）

F 组 – 主运费未付，装运地交货，FCA Free Carrier 货交承运人 （指定地点）FAS Free Alongside Ship 船边交货 （指定装运港）FOB Free on board 船上交货（指定装运港）

C 组 – 主运费已付，装运地交货CFR Cost and Freight 成本加运费 （指定目的港）CIF Cost Insurance and Fright 成本，保险费加运费 （指定目的港）CPT Carriage Paid to 运费付至 （指定目的地）CIP Carriage and Insurance Paid to 运费，保险费付至（指定目的地）

D 组 到达地交货DAF Delivered at Frontier 边境交货（指定地点）DES Delivered EX Ship 目的港船上交货 （指定目的港）DEQ Delivered EX Quay 目的港码头交货（指定目的港）DDU Delivered Duty Unpaid 未完税交货（指定目的地）DDP Delivered Duty Paid 完税后交货（指定目的地）

FROM E –F-C-DThe obligation of seller increaseThe obligation of buyer decrease

Abbreviation for the obligation of the seller

E – take delivery at the seller’s factory F – take delivery at the place of shipment or place

of loading; freight unpaid C - take delivery at the place of shipment or place of

loading; freight paid D – take delivery at destination

1. Export and import licenses卖出买进除首尾卖出买进 - 都是卖方办出口手续，买方办进口例外： EXW: 均由买方 DDP ：均由卖方

2 ， Place of transferring risk The place of take delivery: EXW – seller’s factory F,C – place of shipment or loading D - destination When the goods pass the ship’s rail: FOB CFR CIF

3. Arrangement of transportation E, F ： Buyer C ， D ： Seller

4. InsuranceCIF, CIP ： Seller 5. Place after the termsE,F ： place of shipment or place of loadin

g C,D ： destination port or place

6. Transportation methodFAS, FOB, CFR, CIF, DES, DEQ ： shipment o

nly

甲国公司（卖方）与乙国公司订立了国际货物买卖合同， FOB 价格条件，采用海上运输方式。甲乙两国均为 CISG 缔约国，下列哪一选项是正确的？

A. 货物的风险应自货物交第一承运人时转移B. 因当事人已选择了贸易术语，《公约》整体不再适

用该合同C. 甲国公司应在装运港于约定日期或期限内将货物交

至船上D. 甲国公司在订立运输合同并装船后应及时通知乙国

公司办理保险C

根据 2000 年版国际贸易术语解释通则的规定，关于 FOB 贸易术语，下列哪一项是正确的？

A. 卖方应当在目的港交货B. 卖方应当自费去的货物保险C. 卖方无义务自费订立运输合同D. 该贸易术语适用于各种运输方式

C

根据 2000 年版国际贸易术语解释通则的规定，关于 CFR 贸易术语，下列哪一项是正确的？

A. 卖方应当在目的港交货B. 买方应负责办理出口清关手续C. 卖方应当自费取得货物保险D. 该贸易术语只适用于海运与内河运输

D

买卖双方采用 CIF 术语签订了国际货物买卖合同，合同约定装运港为旧金山 ，目的港为上海。下列何种表述是正确的？

A. 买方必须负责把货物运至上海B. 双方可约定 CIF 旧金山C. 对货物从装运港到目的港的灭损风险，由卖

方购买保险，买方承担风险D. 出口清关手续由卖方负责

CD

根据《国际贸易术语解释通则 2000 》的规定，下列哪一种贸易需由卖方办理进口手续 ? A． FAS B． DEQ C． DDP D． DDU

C

CISG United Nations Convention on Contracts

for the International Sale of Goods a binding agreement or contract between

nations. Once a country becomes a party of the

CISG, they should be bound by the Convention, unless they make any declarations or reservations.

What is the purpose of the CISG? Uniform the law governing international sales

contracts

It establishes a set of rules governing certain aspects of the making and performance of international sales contracts。

Development of CISG

UNCITRAL –联合国国际贸易法委员会 United Nations Commission on International

Trade Law Came into force generally on 1 January 1988

When does the CISG come into play? 1. The contract is one for the sale of goods;2. The parties have their place of business in

different countries; and the countries have ratified the convention.

3. The States are Contracting Parties to the CISG Convention (1980) or the rules of private international law lead to the application of the law of a Contracting State;

The contract is one for the sale of goods No definition in the convention a description can be derived from Article 30

and 53. A contract pursuant to which one party is

bound to deliver the goods and transfer the property in the goods sold and the other party is obliged to pay the price and accept the goods.

2. The parties have their place of business in different States Place of business – “the place from which a business

activity is defacto carried out [...]; this requires certain duration and stability as well as a certain amount of autonomy”

Nationality is not a criteria

When there is multiple places of busines:- the place of business is that which has the closest rel

ationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract;

- if a party does not have a place of business, reference is to be made to his habitual residence.

The States are contracting Parties to the CISG Convention Which countries are "Contracting

States?" How do we find out who they are?

http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html

3. The rules of private international law lead to the application of the law of a Contracting State

- China makes reservation to this clause.(also America)

When is CISG excluded?

Article 2 – the contract for selling specific goods

Article 3 – contract for manufacture Article 4 – validity of the contract and

ownership of the goods Article 5 – product liability Article 6 – excluded by the parties

Article 2 ：This Convention does not apply to sales: (a) of goods bought for personal, family or household u

se, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use;

(b) by auction; (c) on execution or otherwise by authority of law; (d) of stocks, shares, investment securities, negotiable

instruments or money; (e) of ships, vessels, hovercraft or aircraft; (f) of electricity.

Sales involving a combination of goods and services

Article 3(1) Contracts for the supply of goods to be manufactured

or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production.

Substantial - value and necessity

(2) This Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services.

CISG - governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract.

CISG is not concerned with:

(a) the validity of the contract or of any of its provisions or of any usage;

(b) the effect which the contract may have on the property in the goods sold.

Article 5

This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person.

what about the damage of property causes by the goods?

OPTING OUT The parties may exclude the application of this Conventi

on or, subject to article 12, derogate from or vary the effect of any of its provisions.

-- OPTING OUT

EXPRESS EXCLUSION ie: “The rights and obligations of the parties under this ag

reement shall not be governed by the CISG, rather, these rights and obligations shall be governed by the contract law of China. “

“The rights and obligations of the parties under this agreement shall not be governed by the CISG”

IMPLICIT EXCLUSION- By adopting the law in a non-contracting country

OPTING IN

The parties agree to adopt CISG. - principle of autonomy of will

Obligation of the seller

Articles 30-52 In general, the seller must deliver the goods

that conform to the contractual description, hand over documents relating to the goods and transfer the property in the goods. – Art 30

OBLIGATION 1 - Delivery of goods Actual delivery - transfer of possession from

one person to another Constructive delivery – the goods

themselves are not delivered, but the means of obtaining possession of the goods is delivered.

Place of Delivery – specified in the contract

Express term Incoterm Implied term

ie: free delivery Art 31

Place of Delivery – not specified in the contract

a) If the contract involves carriage of goods, the seller must hand the goods over to the first carrier for transfer to the buyer.

b) if, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place - in placing the goods at the buyer's disposal at that place

c) In all other cases, the goods are to be placed at the buyer’s disposal at the place where the seller has his place of business at the time the contract was made.

Time for Delivery: Art.33

The seller must deliver the goods:

(a) if a date is fixed by or determinable from the contract, on that date;

(b) if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date; or

(c) in any other case, within a reasonable time after the conclusion of the contract.

OBLIGATION 2 – the duty to hand over documents -Art 34

If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract.

documents relating to the goods: bills of lading, dock r

eceipts, warehouse receipts, insurance policies, commercial invoices, certificates of origin,etc

If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense.

OBLIGATION 3 - Conformity of the goods

Arts.35-44

Article 35

(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.

.

The seller’s assurance of the quality of goods

(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:

(a) are fit for the purposes for which goods of the same description would ordinarily be used;

(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;

(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;

(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.

EXEMPTION (3) The seller is not liable under

subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity

Seller’s right to remedy Article 37

- before the date for delivery

The seller has the right to: deliver any missing part make up any deficiency in the quantity of the goods delivered deliver goods in replacement of any non-conforming goods

delivered remedy any lack of conformity in the goods delivered

- Should not cause the buyer unreasonable inconvenience or unreasonable expense.

Buyer’s obligation of examination

The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.

- If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.

- If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination.

Buyer’s obligation of notifying the non-conformity

Article 39 - The buyer loses the right to rely on a lack of

conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

- In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee.

Article 40 The seller is not entitled to rely on the

provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer.

Obligation 4 – Assurance of ownership of the goodsArticle 41 The seller must deliver goods which are free

from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim.

However, if such right or claim is based on industrial property or other intellectual property, the seller's obligation is governed by article 42.

Article 42(1) The seller must deliver goods which are free from any right or

claim of a third party based on industrial property or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, provided that the right or claim is based on industrial property or other intellectual property:

(a) under the law of the State where the goods will be resold or otherwise used, if it was contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or

(b) in any other case, under the law of the State where the buyer has his place of business.

(2) The obligation of the seller under the preceding paragraph does not extend to cases where:

(a) at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim; or

(b) the right or claim results from the seller's compliance with technical drawings, designs, formulae or other such specifications furnished by the buyer.

OBLIGATIONS OF THE BUYER Article 53

The buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.

OBILGATION 1- Payment of the price Article 54 The buyer's obligation to pay the price

includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulations to enable payment to be made.

Obligation 2. Taking delivery

Article 60

The buyer's obligation to take delivery consists:

(a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; and

(b) in taking over the goods. .