Lecture 4 & 5 - CISG- International Contracts of Sale of Goods Contract The issues in this case is
-- what is the governing law?
-- Does CISG apply?
-- Is there a breach of contract by (seller) as regards to (a) Delay of delivery (b) quality if wines? -- What are the remedies available to (buyer)?
1. Is there a choice of law clause?
( Yes – Australian is the governing law )
( No- where there is no choice of law clause in the sale contract, courts will choose the law of nation which has the ‘ closest and most real link to the contract- The forum of the contract Currency of payment
Place of performance of contract
Place where contract is concluded
Residency of parties to contract
Subject matter of contract
Contract concluded in Aus, using AUD$, Performance is in Australia therefore, governing law of this contract is Australia.
The governing law is determined following the steps laid down in John Kaldor v Mitchell Kotts . Under Article 1(a) Vienna Convention 1980, both countries must be signatory of Vienna Convention. In fact, both (China and Australia) is signatory countries, there for VC will apply. Moreover, under Article 1( b) Vienna Convention 1980, if the governing law of contract and the country is the signatory of VC, VC applied. Furthermore, incoterm …
Offer and acceptance (Notes)
Under Article 23 of Vienna Convention, contract is concluded upon effective acceptance of an offer. Shown in the case of Societe Fauba v Siciete Fujitsu. In Article 14 and 15 of VC, the offer must be clear and communicated to the buyer. Article 18 VC, acceptance is effective when it reaches the offeror within the time frame or reasonable time. 2. Buyer will argue that seller has breached
Delivery of goods from seller to buyer usually involves the passing of property and risk in the goods a) Time of delivery of goods
Article 33 (a) – If a particular date of delivery is fixed in contract, goods must be delivered then OR
(b)- If a period of time is fived in contract, goods must be delivered within that period unless
circumstances show that B is to choose a date
(c)- If no date/period stipulated in contract, goods must be delivered within a reasonable time after
contract is concluded.
b) Time for Delivery of Documents
Article 34- Seller must hand over at the time and place and in the form required by the contract. If handed over
before such time, Seller may up to that time cure any lack of conformity in documents provided it does
not cause Buyer unreasonable inconvenience/expense. Buyer retain right to claim damages. Article 41- Seller must delever goods free from 3rd party rights/claim unless Buyer agreed to take subject to it. Article 42- seller must deliver goods free from 3rd party rights/ claim based on industrial or intellectual property,
under the law of the state where the goods were to be sold/ used or where Buyer has his place of
c) Goods must conform with Sale of Goods Contract
Article 35(1) – Express Terms
- Seller must deliver goods complying with contractual requirements as to quantity, quality,
description and packaging. Article 35 (2)- Implied Terms
- Unless expressly excluded by the parties, the goods must be (a) – Fit for the purpose for which goods of such description would ordinarily be used Case: Australian Knitting Mills v Grant
(b)- fit for any particular purpose expressly/ impliedly made known to the seller at the time of contract, except where buyer did not reply or unreasonable for buyer to rely on seller’s skill and judgment Case: Griffiths v Peter Conway Ltd
(c)- possess the qualities corresponding with the sample
(d) – Contained/ packaged in a manner usual for such goods or if no such manner, then in an adequate manner to preserve and protect the goods. Case: Silbert Sharpe v George Wills where damage due to poor packaging can also give rise to breach of merchantable quality.
Article 36 (1) –...
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