Convention on Contracts for the International Sale of Goods (CISG)

Name: Convention on Contracts for the International Sale of Goods (CISG)
Brand: Wolters Kluwer
Price: 92.49 EUR
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Joseph Lookofsky(Autor*in)

Wolters Kluwer (Verlag)

Erschienen am 21. Januar 2022

256 Seiten

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Beschreibung

Derived from the renowned multi-volume International Encyclopaedia of Laws, this practical analysis of the law of contracts in Convention on Contracts for the International Sales of Goods (CISG) and Wales covers every aspect of the subject - definition and classification of contracts, contractual liability, relation to the law of property, good faith, burden of proof, defects, penalty clauses, arbitration clauses, remedies in case of non-performance, damages, power of attorney, and much more. Lawyers who handle transnational contracts will appreciate the explanation of fundamental differences in terminology, application, and procedure from one legal system to another, as well as the international aspects of contract law. Throughout the book, the treatment emphasizes drafting considerations.An introduction in which contracts are defined and contrasted to torts, quasi-contracts, and property is followed by a discussion of the concepts of 'consideration' or 'cause' and other underlying principles of the formation of contract. Subsequent chapters cover the doctrines of 'relative effect', termination of contract, and remedies for non-performance. The second part of the book, recognizing the need to categorize an agreement as a specific contract in order to determine the rules which apply to it, describes the nature of agency, sale, lease, building contracts, and other types of contract. Facts are presented in such a way that readers who are unfamiliar with specific terms and concepts in varying contexts will fully grasp their meaning and significance.Its succinct yet scholarly nature, as well as the practical quality of the information it provides, make this book a valuable time-saving tool for business and legal professionals alike. Lawyers representing parties with interests in Convention on Contracts for the International Sales of Goods (CISG and Wales will welcome this very useful guide, and academics and researchers will appreciate its value in the study of comparative contract law

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Inhalt

Intro
Title Page
Copyright Page
The Author
Table of Contents
List of Abbreviations
Introduction
§1. INTERNATIONAL SALES AND THE CISG
I. The Law of Sales under Domestic Law
A. Sales Law as Contract Law
B. Domestic Sales Law Applied to Domestic and International Sales
II. International Sales Law: The CISG
III. Convention Preamble: Objectives of Signatory States
IV. Entry into Force: Initial Ratifications
V. Subsequent Ratifications: Three-Fourths of World Trade
VI. Major Significance
§2. HISTORICAL PERSPECTIVE: THE HAGUE SALES CONVENTIONS AND THE CONFLICT OF LAWS
I. Purely Domestic Sale Subject to Local Law
II. International Sale: Problem of Selecting Applicable Law
III. Pre-CISG: Choosing the Applicable Law
A. Limited Acceptance of ULIS/ULF
B. Choice-of-Law Rules Determine Applicable Domestic Law
C. Concrete Illustration
D. The 1955 Hague Convention
IV. After 1 January 1988: New CISG Regime Applies in Courts and Arbitral Tribunals
Chapter 2. Convention Overview
§1. CONVENTION CONSISTS OF 101 ARTICLES: PARTS I-IV
§2. SPHERE OF APPLICATION AND GENERAL PROVISIONS
I. Sphere of Application
A. Main Rules of Application
1. Parties in Different Contracting States
2. Convention Applies by Virtue of PIL
B. Contracts for the Sale of Goods
C. Validity Issues and Third-Party Rights Excluded
D. Product Liability
E. The CISG and Contractual Freedom
II. General Provisions
A. Interpretation
B. Usages of International Trade
§3. PARTS II AND III STATES MAY RATIFY ONE OR BOTH
§4. FORMATION OF CONTRACT
I. Offer and Acceptance
II. CISG Offer: Requirement of Definiteness
III. When Offer Effective: Revocable Versus Irrevocable Offers
IV. Acceptance as Indication of Offeree's Assent
V. Mirror-Image Rule and Battle of Forms
§5. SALE OF GOODS: CISG PART III
I. Obligations, Rights and Remedies
II. Part III Provisions Brief Overview of Chapters I-V
III. Obligations of the Parties
A. Obligations of the Seller
B. Obligations of the Buyer
IV. Remedies
A. Supplementary Remedial Regime
B. Enforceable Contracts and Remedies for Breach
C. Three Basic Forms of Remedial Relief
D. Relationship among Remedies
E. Specific Performance as Primary Convention Remedy
F. Monetary Compensation as Primary Remedy in Practice
G. Avoidance and the Right to Terminate
V. Passing of Risk
VI. Anticipatory Breach
§6. FINAL PROVISIONS: DECLARATIONS, ETC.
§7. OVERVIEW OF CHAPTERS 3-6
Chapter 3. Convention Scope and General Provisions
§1. SPHERE OF APPLICATION
I. Internationality under Article 1
A. Parties' Places of Business in Different Contracting States
B. Convention Application by PIL
C. Article 95 Declaration
D. Parties in Different States Disregarded in Exceptional Cases
E. Irrelevant Factors: Nationality, Civil-Commercial
II. Transaction Must Be a Sale of Goods Within Articles 1-3
A. Article 1: Sales, Goods (E.g., Computer Software), Etc.
B. Sales Contracts Expressly Excluded: Article 2
1. Consumer Sales
2. Additional Exclusions
C. Contract of Sale Versus Contract for Services: Article 3
III. Issues Excluded from Convention Scope: Validity, Property and Delict
A. Contractual Validity & Domestic Law
B. Delictual Obligations & Concurrent Remedies
C. Convention Not Concerned with Property in Goods
D. Product Liability
1. Liability for Death or Personal Injury
2. Damage to Buyer's Property Distinguished
3. Competition Between Convention and Domestic Delictual Rules
IV. Freedom of Contract: Convention as Supplementary Regime
A. Contracting Out
B. Contracting In
§2. GENERAL PROVISIONS
I. Convention Interpretation: Uniformity and Good Faith
II. Convention Interpretation: Matters Governed but Not Settled
III. Interpretation of Statements by Parties
A. Subject Matter of Article 8: Statements and Conduct
B. Subjective and Objective Tests
C. Due Consideration to All Relevant Circumstances
D. Common Law Parol Evidence Rule and Article 8
IV. Commercial Custom and Usage
A. Express Agreement and Inter Partes Course of Dealing
B. Implied Incorporation of Commercial Usage
V. Place of Business: Rules for Exceptional Cases
VI. No Writing Requirement for CISG Contract
A. Relation to Formal Requirements under Domestic Law
B. Article 12: (Article 96) Declarations in Derogation of Article 11
VII. Definition of Writing
Chapter 4. Sales Contract Formation
§1. THE OFFER
I. Minimum Requirements
A. Definiteness & Intention to Be Bound. Offer Addressed to Specific Persons
B. Problem of Price-Gap
C. Invitation to Make Offers Distinguished
II. Time Offer Takes Effect
Right to Withdraw
III. Offeror's Right to Revoke
A. Revocability Is General Rule
B. Modification: Offer Indicating Irrevocability
C. Offer Fixing Time for Acceptance
D. Modification: Action in Reliance
IV. Effect of Rejection
§2. ACCEPTANCE UNDER ARTICLES 18-22
I. Acceptance: Indication of Assent
II. Time Acceptance Takes Effect
A. When Assent Reaches Offeror
B. Receipt Theory
C. Acceptance Within Time Fixed or Reasonable Time
D. Assent by Performance of Act
III. Mirror-Image and Battle of Forms
A. Introduction
B. Non-matching Reply Is Rejection and Counter-Offer
C. Independent Communication Not Rejection
D. Limited Exception to Mirror-Image Rule
E. The Battle of Forms
1. Introduction
2. Materiality Test
3. Materiality Defined
4. Cases Not Resolved by Article 19
IV. Time Period for Acceptance: Default Rules
V. Official Holidays, Etc.
VI. Exceptions to Timely Acceptance Rule
A. The Rule and the Exceptions
B. Notification by Offeror Accepting Late Acceptance
C. Acceptance Timely in Normal Circumstances
VII. Withdrawal of Acceptance
§3. ACCEPTANCE EFFECTIVE
CONTRACT CONCLUDED
§4. DECLARATION OF INTENTION: DEFINITION OF REACH
Chapter 5. Obligations, Risk and Remedies
§1. SALE OF GOODS: FIVE CHAPTERS IN CISG PART III
§2. GENERAL PROVISIONS
I. Introduction
II. Avoidance and Fundamental Breach
A. Fundamental Breach Defined
B. Substantial Detriment
C. When Avoidance Declaration Effective
III. Delay or Error in Transmission
IV. Specific Performance
A. Specific Performance and Forum Law
B. Award of Specific Performance: Two-Step Process
V. Modification and Termination
A. No Formal Requirements
B. Relationship to Consideration under Common Law
C. Contract Requiring Written Modification or Termination
§3. OBLIGATIONS OF THE SELLER AND BUYER'S REMEDIES FOR BREACH
I. Introduction
II. Summary of Seller's Obligations
III. Delivery of the Goods and Handing Over of Documents
A. Introduction
B. Place of Delivery
1. Gap-Filling Rules
2. Incoterms
3. Contracts of Carriage: Delivery to First Carrier
4. Cases Not Involving Carriage
5. Notice of Consignment
6. Place of Delivery and Jurisdiction
C. Time of Delivery
D. Contracts of Carriage: Documents
IV. Conformity of the Goods and Third-Party Claims
A. Conformity of the Goods
B. Distinction Between Contractual and Delictual Claims
C. Conformity with Express Contractual Requirements (Description, Guarantee, Etc.)
D. Supplementary Convention Obligations
1. Introduction: Implied Obligations, Express Disclaimer, Etc.
2. Fitness for Ordinary Purposes
3. Fitness for Particular Purposes
4. Conditions and Warranties under Domestic Law Distinguished
5. Sample or Model
Packaging
E. Seller's Knowledge of Defect Irrelevant
F. Caveat Emptor and Pre-contractual Inspection of Goods
G. Disclaimer and Limitation of Liability
1. Introduction
2. Incorporation of Disclaimer
3. Interpretation of Disclaimer
4. Validity of Disclaimer
5. Examples of the Application of Domestic Validity Rules
6. Validity Versus Substance
7. Convention as Validity Yardstick
H. Time of Conformity Determination
1. Introduction
2. The General Rule
3. Subsequent Non-conformity
I. Seller's Right to Cure Defects
1. Cure in Context
2. Article 37, Fundamental Breach and Avoidance
J. Notice of Non-conformity Required
K. Examination of Goods
1. Timely Examination
2. Nature of Examination
3. Contract of Carriage: Examination May Be Deferred
L. Notice of Discoverable Defects & Consequences of Failure to Notify
1. The General Rule
2. Notice of Discoverable Defects & Consequences of Failure to Notify
3. Latent Defects under Article 39(1)
M. Absolute (Two-Year) Cut-Off Rule
N. Application of Two-Year Rule to Latent Defects
O. Express Contractual Cut-Offs and Periods of Guarantee
P. Relation to Prescription Convention and Other Statutes of Limitation
Q. Seller Aware of Defect
R. Obligation to Deliver Goods Free of Third-Party Claims
1. Introduction
Article 41
2. Third-Party Rights Distinguished
3. Article 42: Claims Based on Industrial or Intellectual Property
4. Seller's Knowledge of Third-Party Right or Claim
5. Buyer's Risk
6. Consequences of Failure to Notify
7. Seller Aware of Third-Party Right or Claim
S. Excuse for Failure to Notify of Breach
1. Nature of the Exception
2. Reasonable Excuse
V. Remedies for Breach of Contract by the Seller
A. Introduction
B. Performance, Avoidance and Damages for Breach
C. No-Fault Liability Based on Breach
D. Relationship among Remedies
E. No Grace Period in CISG Context
F. Specific Performance
1. Right to Require (Specific) Performance
2. Specific Performance and the Duty to Mitigate Damages
3. Specific Performance Limited by Forum Law
4. Require Delivery of Substitute Goods
5. Right to Demand Redelivery Limited by Forum Law
6. Buyer's Right to Require That Seller Remedy Non-conformity (Cure)
G. Nachfrist Warning: Fixing an Additional Performance Period
H. Seller's Right to Cure after the Delivery Date
1. Introduction
2. Relation Between Cure and Avoidance under Article 49
3. Proposals and Notice by Seller Regarding Cure
I. Buyer's Right to Avoid for Seller's Breach
1. Avoidance for Fundamental Breach
2. Declaration of Avoidance
3. Relationship to Cure
Avoidance as to Part
4. Avoidance for Non-compliance with Nachfrist Notice
5. Limitations Regarding Goods Delivered
6. Consequences of Avoidance
J. Proportionate Reduction in Price
K. Partial Non-conformity and Remedies for Breach
L. Avoidance: In Part or in Full
M. Delivery Before the Date Fixed
N. Delivery of Excess Quantity
§4. OBLIGATIONS OF THE BUYER AND SELLER'S REMEDIES FOR BREACH
I. Introduction
II. Summary of Buyer's Obligations
III. Payment of the Price
A. Introduction
B. Steps to Enable Payment of the Price
C. Contract with Open Price Term
D. Price Fixed by Weight
E. Place of Payment - Jurisdiction
F. Time of Payment
G. Contracts Involving Carriage
H. Buyer's Right to Inspect Before Payment
I. Payment Due Without Request or Formality
IV. Taking Delivery
V. Remedies for Breach of Contract by the Buyer
A. Introduction
B. Performance, Avoidance and Damages for Breach
C. No-Fault Liability Based on Breach
D. Relationship among Remedies
E. No Grace Period in CISG Context
F. Specific Performance
1. Right to Require (Specific) Performance
2. Other Convention Limitations
3. Specific Performance Limited by Forum Law
G. Nachfrist Warning, Fixing an Additional Performance Period
H. Avoidance
1. Seller's Right to Avoid for Buyer's Breach
2. Declaration of Avoidance
3. Avoidance for Non-compliance with Nachfrist Notice
4. Limitations Regarding Goods Delivered
5. Consequences of Avoidance
I. Seller's Right to Supply Specifications
§5. PASSING OF RISK
I. Introduction
II. Legal Effect of the Passing of Risk
III. Use of Trade Terms (CIF, C&F, FOB, FAS, CPT, CIP, Etc.)
IV. Contracts Involving Carriage: The CISG Gap-Filling Rule
V. Goods Not Identified to the Contract
VI. Goods Sold in Transit
VII. Passage of Risk in Other (Non-carrier) Cases
VIII. Buyer to Take Goods at Seller's Place of Business (Ex Works)
IX. Buyer to Take Goods at Another Place
X. Identification Required
XI. Seller's Fundamental Breach: Effect on Risk
§6. PROVISIONS COMMON TO THE PARTIES' OBLIGATIONS
I. Introduction
II. Anticipatory Breach and Instalment Contracts
A. Introduction
B. Right to Suspend Performance: Generally
C. Goods Dispatched: Stoppage in Transit
D. Notice: Adequate Assurance of Performance
E. Right to Avoid for Prospective Fundamental Breach
F. Damages for Prospective Fundamental Breach?
G. Notice. Adequate Assurance of Performance
H. Instalment Contracts: Avoidance for Fundamental Breach
III. Damages for Breach
A. Introduction
B. CISG Liability: Basis, Extent and Exemptions
C. Expectation Protection: The General Rule
D. Attorneys' Fees as Damages under Article 74?
E. Foreseeability and Certainty as Limitations
F. The Contract/Cover Differential
G. No Cover if Seller's Supply Exceeds Demand
H. The Contract/Market Differential
I. Mitigation: No Recovery for Avoidable Loss
J. Interest
K. Liability Exemptions for Failure to Perform
1. Introduction
2. Freedom of Contract and the Gap-Filling Rule
3. Requirements for Exemption and the Burden of Proof
4. Hardship: Governed by CISG or by Domestic Rules?
5. Non-performance Due to Failure of TP
6. Duration of Exemption
7. Notice of Impediment
8. Exemption Applies Only as Regards Damages
9. Non-performance Caused by Other Party
IV. Effects of Avoidance
A. Introduction
B. Release from Obligation
C. Damages for Breach, Arbitration Clauses, Etc.
D. Restitution
E. Buyer's Obligation to Return Goods in Condition Received
F. Exceptions to the Return-of-Goods Rule
G. Retention of Other Remedies Notwithstanding
H. Accounting for Interest and Other Benefits Received
V. Preservation of the Goods
A. Introduction
B. Seller's Duty to Preserve Goods on Buyer's Behalf
C. Buyer's Duty to Preserve Goods on Seller's Behalf
D. Deposit in Warehouse
Sale of Goods Preserved
Chapter 6. Final Convention Provisions
§1. OVERVIEW
§2. SIGNATURE, RATIFICATION, ENTRY INTO FORCE
§3. RELATIONSHIP TO THE 1955 HAGUE CONVENTION
§4. RESERVATIONS
I. Introduction
II. Article 92 Declarations
III. Contracting States with Territorial Units
IV. States Having Closely Related Legal Rules
V. PIL: Article 1(1)(b) and Article 95
VI. Preservation of Formal Requirements
§5. RELATIONSHIP TO ULF/ULIS
§6. CONTRACT FORMATION: ENTRY INTO FORCE
§7. SIX AUTHENTIC TEXTS
Appendix
Selected Bibliography
Index

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