国际经济法期末考试总结_国际经济法期末考试
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国际经济法期末考试总结
一.Explain the legal terms of art.1.Condition: a major term of a contract,which is regarded as being of the eence of the contract.Breach of a condition is a fundamental breach of contract which entitles the injured party to treat the contract as discharged.2.Anticipatory breach: a breach of contract caused by a party’s anticipatory repudiation,i.e.,unequivocally indicating that the party will not perform when performance is due.Under these circumstances,the nonbreaching party may elect to treat the repudiation as an immediate breach and sue for damages.3.Nachfrist is a German term describing the situation in which the innocent party sends a final notice to the breaching party requesting him or her to perform the contractual obligation within a specified period of time.4.The parole evidence rule excludes evidence of oral agreement which contradicts or varies the terms of a subsequent or contemporaneous written contract.the premise of whether to apply the parole evidence is ：1）must have a written contract 2)the written contract become effective or have legally binding;3）the written contract is parties final and all the meaning expreion.二.Multiple Choices Questions 1.The law which may affect a contract for the international sale of goods comes from:(ACD)A.International conventions B.the continental law C.Customs
D.domestic laws
2.These are eential elements in an international sale of goods:(BCD)A.There is an exchange of goods B.the subject matter of is goods C.There is a sale
D.the sale is involving international elements 3.FAS means:(AD)
A.The seller is required to clear the goods for export
B.The buyer is responsible for obtaining all export permits C.The seller makes contract of carriage
D.The buyer is responsible for making contract of carriage
4.The terms which can be used only for carriage of goods by maritime and inland waterway transport are:(BD)A.FCA B.CFR C.CIP D.DEQ 5.The CISG does not apply to:(ABCD)A.Sales of electricity B.sales by auction
C.a consulting contract
D.the liability of the seller for death or personal injury caused by the goods to any person.6.DEQ means:(CD)
A.The seller is required to clear the goods for import
B.The buyer is responsible for obtaining all export permits C.The seller makes contract of carriage
D.The buyer is responsible for risks after delivery
7.The terms which can be used for all modes of transport are:(AC)A.FCA B.CFR C.CIP D.DEQ
8.The CISG does not apply to:(ABCD)A.Sales of ships
B.sales on execution C.services contract
D.the liability of the seller for personal injury caused by the goods to any person.9.Under the Code art 52,a contract is invalid if it is:(ABCD)
A.concluded through the use of fraud or dure by one party to damage the interests of the State
B.a result of a conspiracy to harm the interest of the state C.harmful to public interest D.in contravention of law
10.A party is entitled to terminate a contract in any of the following situations:(BD)
A.the other party has lost his or her busine reputation
B.the purpose of the contract cannot be realized due to force majeure C.the other party‟s state of busine has seriously deteriorated
D.the purpose of the contract cannot be realized due to another breaching act
11.An obligor may suspend the performance of his or her obligations in any of the following situations:(ACD)
A.the other party‟s state of busine has seriously deteriorated B.the conduct of the other party in preparing to perform C.the other party has lost his or her busine reputation D.the existence of poibility of the other party losing in his or her ability to perform
12.The meaning of „fundamental breach‟ under the CISG can be understood as follows:(BCD)
A.the parties are not able to define the meaning in their contract B.a fundamental breach is determined byobjective test under art 25
C.under art 25 the detrimental effect of the breach must be foreseeable by the breaching party
D.art 25 appears to require an ability to foresee the extent of the detriment flowing from a breach.13.The delivery point under FOB, which is the same under:(BD)A.FCA B.CFR C.CIP D.CIF
14.The CISG does not apply to:(ABCD)A.Sales of consumer goods B.sales of money
C.a consulting contract
D.any legal iue concerning the validity of a contract.15.As has always been underlined by ICC, Incoterms deal only with:(BCD)
A.the relation between sellers and buyers under the contract of carriage B.the relation between sellers and buyers under the contract of sale
C.the seller's obligation to place the goods at the disposal of the buyer D.the buyer's obligation to take delivery
16.If the seller has delivered goods before the date for delivery, he may, up to that date,(ABCD)A.deliver any miing part
B.make up any deficiency in the quantity of the goods delivered，C.deliver goods in replacement of any non-conforming goods delivered
D.remedy any lack of conformity in the goods delivered
17.Under the Hamburg Rules,the carrier is responsible for the safety of goods from:(B)A.tackle to tackle B.port to port C.door to door D.tackle to port 三.Short Answer Questions 1.Seller, whose place of busine is in State A.and Buyer, whose place of busine is in Stale B.enter into a contract that stipulates that the UN Convention on Contracts for the International Sale of Goods applies.Neither State A nor State B is a contracting state.Does the Convention apply? No,the Convention does not apply.(2 marks)
(1)This Convention applies to contracts of sale of goods between parties whose places of busine are in different States:(a)when the States are Contracting States;or
(b)w hen the rules of private international law lead to the application of the law of a Contracting State.(4 marks)
(2)This Convention applies only to contracts concluded on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph(1)(a)or the Contracting State referred to in subparagraph(1)(b)of article 1.(2 marks)
2.On April 4, Company X, with its place of busine in China, sent an offer by e-mail to Company Y, with its place of busine in Australian.The offer concerned 50,000 meters hand-printed cotton cloth and said it would remain open until April 30.On April 10, Company Y answered by e-mail: “The price is too high, and we are not interested in the offer.” But, on April 20, the manager of Company Y changed his mind and sent another e-mail to accept the April 4 offer.Is there any contract between Company X and Company Y? Since both China and Australian are Contracting States to the CISG, according to Article l(l)(a)would apply here.(2 marks)
After receiving the offer of 50 ,000 meters hand-printed cotton cloth, on April 10, Company Y stated that they were not interested in the offer, which rejected the offer.(2 marks)
On April 20, the email sent to accept the April 4 offer should be regarded as a new offer instead of acceptance.(2 marks)
Therefore, there was no contract between Company X and Company Y.(2 marks)
3.Mr.Nelson, the manager of a US company, entered into a contract with an Italian company, Roma, to order some leather suitcases.The Goods were delivered on time, but with some of the zippers on the suitcases defective.Mr.Nelson contacted Roma and gave a notice that he wanted to cancel the contract.Roma responded that they only can give a reduction in the price.Who is legally right? Roma was legally right.(2 marks)
The defectivene of some of the zippers on the suitcases could not account to a fundamental breach under the CISG Article 25(4 marks)
Therefore Mr.Nelson had no right to cancel the contract but could have other remedies, such as reducing the price.(2 marks)
4.Seller agreed to ship 10,000 tons of potatoes FOB Tacoma, Washington, to Buyer in Japan.Buyer designated the SS Ruet to take delivery at pier 7 in Tacoma.On the agreed date for delivery, Seller delivered the potatoes to pier 7, but the ship was not at the pier.Because another ship using the pier was slow in loading, the Ruet had to anchor at a mooring buoy in the harbor and Seller had to arrange for a lighter to transport the potatoes in containers to the ship.The lighter tied up alongside the Ruet and a cable from the ship's boom was attached to the first container.As the container began to cro the ship's rail the cable snapped.The container then fell on the rail, teetered back and forth for a while, and finally crashed down the side of the ship and capsized the lighter.All of the potatoes were dumped into the sea.Buyer now sues Seller for failure to make delivery.(1)Is Seller liable?
(2)Suppose, the contract had been FAS Tacoma.Would Seller be liable?(1)The Seller is liable.(1 marks)“Free on Board” means that the seller delivers when the goods pa the ship's rail at the named port of shipment.The seller must, subject to the provisions of B5, bear all risks of lo of or damage to the goods until such time as they have paed the ship's rail at the named port of shipment.This means that the buyer has to bear all costs and risks of lo of or damage to the goods from that point.(3 marks)
(2)Suppose, the contract had been FAS Tacoma.The Seller would not be liable.(1 marks)
“Free Alongside Ship” means that the seller delivers when the goods are placed alongside the veel at the named port of shipment.The seller must, subject to the provisions of B5, bear all risks of lo of or damage to the goods until such time as The seller must place the goods alongside the veel nominated by the buyer.This means that the buyer has to bear all costs and risks of lo of or damage to the goods from that moment.(3 marks)5.A seller contracted for oranges to be sent from Spain to England.Before the contract of carriage was concluded the shipowners promised the shippers orally that they would arrive in London by 30th November 1947, but they did not actually arrive until December 5th.The arrival date was important to the shipper not merely because the oranges might deteriorate, but also because import duty was imposed from December 1st.However, the bill of lading also had a printed liberty clause allowing the carrier to stop on the way.The carrier did stop on the way and thus did not get to London until 5 December.The seller sued the carrier for deviating from the route and the carrier relied on the written liberty clause.The iue of the case was that the actual terms of the contract were—were they those in the bill of lading or the oral agreements that were made.Is the bill of lading in itself a contract? Although a bill of lading may include the full terms of the contract between the consignor(the seller)and the carrier(the shipping company)but it is not the contract itself.(2 marks)
The logical is because in the most cases the contract will have been made before the bill of lading is iued.In effect, it is very good evidence of the contract of carriage and it can be rebutted.Therefore the parties can show that the actual contract contains different terms.(4 marks)
In the case the seller proved that there was an actually verbal agreement between them, so the carrier was in breach of the contract of carriage and should be liable.(2 marks)
6.On December 1, Seller sent to Buyer an offer to sell 5,000 widgets to Buyer for $25 apiece.The offer slated: “'The offer will remain open until December 31.” On December 10, Buyer answered: “The price is too high, I don't accept your offer.”Then.on December 15, Buyer changed his mind and sent a telegram stating: “'I accept your December 1 offer after all.” Seller replied: “Your acceptance is too late.since you already rejected the offer.” In turn, Buyer answered: “The acceptance is good, since you promised to keep your offer open until December 31.” Is there a contract under the CISG? No,there is not a contract.(2 marks)
After receiving the offer of 5 ,000 widgets, on December 10, buyer stated that The price was too high, he didn't accept the offer., which rejected the offer.(2 marks)
On December 15, the email sent to accept the December 1 offer should be regarded as a new offer instead of acceptance.(2 marks)
Therefore, there was no contract between seller and buyer.(2 marks)
8.A contract for sale of Christmas tree lights was established, in which a letter of credit was used.The credit required the seller to produce a certificate of inspection, along with other documents.This was done and the iuing bank paid against them.The bank then sought reimbursement but the buyer refused, contending that there should have been an inspection to make sure that the lights were working.It should be noted that the certificate of electrical inspection was required by the contract but not specified in the letter of credit.(1)Can the bank seek reimbursement from the buyer?
(2)How to solve the problem between the seller and buyer?
（1）the bank can seek reimbursement from the buyer.Because The main iue is whether the banks are liable to the applicant when the commercial documents or bills of exchange which appear to be consistent with the terms and conditions of the credit are not genuine.Article 13 of UCP 500 requires that banks 'must examine all documents stipulated in the Credit with reasonable care, to ascertain whether or not they appear, on their face, to be in compliance with the terms and conditions of the Credit'.The banks' responsibility-is Limited to the ostensible conformity of the documents.However, it must be emphasised that the doctrine of strict compliance requires a bank to ensure only that the documents appear to be consistent with the terms of the credit(art 14 of UCP 500), and thus give rise neither to a duty to ascertain the conformity of the goods, nor an obligation to investigate analleged fraud.'Second, the complexity ot international trade means that the banks as agents of the buyer or seller are not able to understand and appreciate all technical terms(some of which are interchangeable)or the technical differences between goods of similar functions or nature.(6 marks)
（2）The seller solves the problem between them in accordance with their contract.(2 marks)
9.Retailer in State A decides to go into the catalog sales busine in State B.Both countries are parties to the CISG.Retailer purchases a mailing list from Ace Credit Card Company.The list has the names and addrees 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 addreed 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 under the CISG? No,the retailer has not made an offer.(2 marks)
Under art 14(1)of the CISG,A proposal for concluding a contract addreed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance.A proposal is sufficiently definite if it indicates the goods and exprely or implicitly fixes or makes provision for determining the quantity and the price.According to the facts,it is an invitation to treat.(4 marks)
(2)No,if John accepts, there will not be a binding contract under the CISG.it is an offer.(2 marks)10.Buyer received a letter in her mail on January 1 offering to sell Buyer 5,000 widgets for $20 apiece.Seller‟s letter closed with the following statement:I know that this offer is so attractive that I will aume that you accept it unle I hear otherwise by January 31.”Buyer did not reply.Seller shipped the widgets on February 1.What are Buyer‟s responsibilities under the CISG?
First the buyer has rights to refuse goods.(2 marks)
After receiving the offer of 50 ,000widgets for $20 apiece, Buyer did not reply, which rejected the offer.(2 marks)
Under art 18(1)of the CISG,Silence or inactivity does not in itself amount to acceptance.(2 marks)
Therefore, there was no contract between Seller and Buyer.(2 marks)
11.Buyer and Seller entered into a contract governed by the CISG for Seller to deliver a sophisticated computer to Buyer by January 1.Seller was late in delivering the machine,so Buyer wired Seller on January 12.Anxious to take delivery of the computer.Hope that it arrives by February 1.”Seller delivers the computer on February 5,but Buyer refuses to accept it and declares that the contract is avoided because Seller failed to hand over the computer before the February 1 date specified in the January 2 telegram.Both Buyer and Seller agree that there has not been a fundamental breach.Is Buyer able to avoid the contract under these circumstances? Yes,the buyer is able to avoid the contract.(2 marks)
Under CISG,a buyer may avoid a contract if either(1)the seller commits a fundamental breach or(2)the buyer gives the seller a Nachfrist notice and the seller rejects it or does not perform within the period it specifies.A buyer’s Nachfrist notice is the fixing of “an additional period of time of reasonable length for performance by the seller of his obligations.”.(4 marks)
The period must be definite,and the obligation to perform within that period must be clear.Once the Nachfrist period has run,or once the fundamental breach becomes clear,the buyer has a reasonable time in which to avoid the contract.(2 marks)
13.Cee Company in Canada agreed to sell 10,000 gallons of maple syrup to Dee Company in Denmark.Dee Company arranged for a letter of credit with its bank in Copenhagen.The credit required payment on the presentation of a bill of lading and an inspection certificate iued by a quality control company,Vigilance,Inc.,of Toronto.Cee Company produced both the bill and the inspection certificate.The Copenhagen bank refused to pay because the inspection certificate stated that“based on a sample taken from 5 gallons,the maple syrup is not of the kind ordered.”The bank argued that the certificate,on its face,did not certify the regularity of the entire order.Was the bank correct in refusing payment?
The bank was correct.(2 marks)
Because The main iue is whether the banks are liable to the applicant when the commercial documents or bills of exchange which appear to be consistent with the terms and conditions of the credit are not genuine.Article 13 of UCP 500 requires that banks 'must examine all documents stipulated in the Credit with reasonable care, to ascertain whether or not they appear, on their face, to be in compliance with the terms and conditions of the Credit'.The banks' responsibility-is Limited to the ostensible conformity of the documents.However, it must be emphasised that the doctrine of strict compliance requires a bank to ensure only that the documents appear to be consistent with the terms of the credit(art 14 of UCP 500), and thus give rise neither to a duty to ascertain the conformity of the goods, nor an obligation to investigate an alleged fraud.' Second, the complexity of international trade means that the banks as agents of the buyer or seller are not able to understand and appreciate all technical terms(some of which are interchangeable)or the technical differences between goods of similar functions or nature.(6 marks)14.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 meage on the answering machine at Buyer‟s place of busine: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 the CISG? No,there is not a contract.(2 marks)
After receiving the offer of 5 ,000 widgets, On January 7, seller withdrew the offer.(2 marks)
Article 15(2)provides that an offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer.(2 marks)
Therefore, there was no contract between seller and buyer.(2 marks)
15.Dealer in the United States owned a cargo of 10,000 barrels of oil that had been shipped from Mexico on January 1 for arrival in the United States on February 1.On January 15,Dealer informed Buyer that the oil was en route and they concluded a contract.On arrival,inspection showed that the oil had been contaminated by seawater at some indeterminate time during the voyage.Auming the CISG applies,who bears the risk? Buyer bears the risk.(2 marks)
Article 68 provides that the risk in respect of goods sold in transit paes to the buyer from the time of the conclusion of the contract.However, if the circumstances so indicate, the risk is aumed by the buyer from the time the goods were handed over to the carrier who iued the documents embodying the contract of carriage.16.Seller agreed to deliver three software programs to Buyer that are specially designed for Buyer‟s busine.The first was to be delivered in January,the second in February,and the third in March.The program delivered in January worked fine,but the one delivered in February was defective.It not only failed to function properly,it also made the other two programs effectively worthle.Seller was unable to correct the defect,and no suitable replacement could be found from another supplier.What CISG remedies are available to Buyer?
The buyer may declare the contract avoided in its entirety.(2 marks)
Because Article 73(3)provides that a buyer who declares the contract avoided in respect of any delivery may, at the same time, declare it avoided in respect of deliveries already made or of future deliveries if, by reason of their interdependence, those deliveries could not be used for the purpose contemplated by the parties at the time of the conclusion of the contract.(4 marks)
At the same time Seller was unable to correct the defect,and no suitable replacement could be found from another supplier.(2 marks)
17.Seller in Bombay sells 5,000 bales of cotton to Buyer,FOB Liverpool.Seller transports the cotton to the Bombay harbor and to the ship designated by Buyer,the SS Allthumbs.Due to an error in counting,only 4,987 bales were loaded.The ship‟s bill of lading,however,shows a quantity of 5,000 bales.Seller then signs over the bill of lading to Buyer in exchange for payment in full of the cotton.When the Allthumbs arrives in Liverpool,the quantity error is discovered,and Buyer sues the ship for the lost value of the miing bales.Is the ship liable?Would it matter if Seller admitted that the error was not the ship‟s fault,but that of Seller?
(1)The ship is liable.(2 marks)Because under The Hamburg Rules1.If the bill of lading contains particulars concerning the general nature, leading marks,number of packages of pieces,weight or quantity of the goods which the carrier or other person iuing the bill of lading on his behalf knows or has reasonable grounds to suspect do not accurately represent the goods actually taken over or, where a“shipped” bill of lading is iued, loaded, or if he had no reasonable means of checking such particulars, the carrier or such other person must insert in the bill of lading a reservation specifying these inaccuracies,grounds of suspicion or the absence of reasonable means of checking.2.If the carrier or other person iuing the bill of lading on his behalf fails to note on the bill of lading the apparent condition of the goods, he is deemed to have noted on the bill of lading that the goods were in apparent good condition.(6 marks)
(2)Under the Hague-Visby Rules,Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3(a)The leading marks neceary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage.(b)Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper.(c)The apparent order and condition of the goods.Therefore, The ship isn‟t liable.(6 marks)
If Seller admitted that the error was not the ship‟s fault,but that of Seller,it would matter.(2 marks)
