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课程负责人
 
王 衡
西南政法大学
国际法学院教授
西南政法大学研究生导师,法学博士、国际投资与金融法律研究中心副主任。兼任(以时间为序)(世界)国际经济法协会常务理事、亚洲国际经济法网络常务理事、中国国际经济法学会理事、中国法学会国际经济法学研究会理事、西班牙马德里仲裁院仲裁员、国际可持续发展研究院董事等职。(更多
 
 
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货物买卖法成案试卷一
 

 

本试卷

8

 

6 个问题

 

 

SOUTHWEST UNIVERSITY OF POLITICAL SCIENCE AND LAW

TAKE-HOME

Final Examination--- 2007 2008 学年第 学期

 

 

 

Cover Sheet

 

 

Course Title:

Case Study on International Trade Law

(Former Course Title: International Trade Law)

Course No. and Section:

 

Professor:

Wang Heng

Time Allowed:

24 Hours

Materials Allowed:

Open Book

 

 

 

 

 

Please indicate whether students are limited to a specific number of pages. Any other specific instructions can be indicated here.

 

 

 

 

 

 

 

Limit of 3000 words for entire exam. See additional instructions on first sheet of exam.

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Examinational Rules. Please READ Carefully.

1. There are three cases for you to analyze and some relevant questions to answer in this examination. The relative value of each question is stated in each case.

2. With the exceptions stated in these instructions, this is an open-book examination. Thus, you may use any materials, but there is no reason for you to consult anything other than the materials we used in class.

3. You may work on this examination for any consecutive 24-hour period between June 28 and June 29.

4. You may NOT discuss or have communication about the examination or your answers with any other person once you have begun the examination until the end of the exam period. This prohibition includes phone conversations, face-to-face conversations, e-mails, eye winks, head nodding, or any other form of communication. For instance, asking the question “Have you finished this exam yet?” or answering such a question would be considered a violation of this Rule. This prohibition covers communications with all persons, whether or not they are students at the Law School. I will treat violation of this Rule as cheating.

5. You need not retain or submit any notes that are not part of your final answer. You will, of course, only receive credit for what you submit at the end of the examination.

6. WORD LIMIT: THE ANSWERS TO YOUR EXAMINATION MAY NOT EXCEED A TOTAL OF 3000 WORDS. THIS IS THE TOTAL NUMBER OF WORDS FOR THE ENTIRE EXAM, NOT FOR EACH QUESTION. I WILL DEDUCT SUBSTANTIAL POINTS FROM YOUR ANSWER IF YOU EXCEED THE 3000 WORD LIMIT. You should be able to complete your exam with fewer words and should not feel compelled to reach the limit.
 
 
 


Good luck!

 

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I
简答题(20%)


Ⅰ. What are the matters with which the United Nations Convention on Contracts for the International Sale of Goods (CISG) does not deal?

 

 

 

 

 


II. What are the remedies available to both buyers and sellers under the CISG?

 

 

 

 

 


II
案例分析题(80%)


请阅读以下案例,并回答问题。

Ⅰ.
Facts:
The buyer demands reimbursement of its prepayment for a non-performed delivery of 20 tons of cheese from the seller. This was a partial delivery out of a not fully performed contract for 300 tons of cheese. Both parties are commercial enterprises in the form of corporations. The respondent is registered in the Czech Republic as "spolecnosts rucením omezeným (spol. s. r. o.)," thus, as a Czech corporation with limited liability. On 21 January 1998 the parties agreed on delivery of 15 truckloads of cheese, 20 tons a piece, at $2,520 U.S. per ton each payable per TT telegraphic transfer within five days after delivery in form of collection at the plant distribution depot in the Czech Republic. G, an Austrian company acting as broker had claim to a commission. On the same day the buyer confirmed the purchase contract for the specified 300 tons of cheese for February at $2,520 U.S. per ton, delivery at the plant ex warehouse, with "payment: 5 days after taking delivery." Under "special conditions" only "Hamburg Friendly Arbitration" was agreed upon. The first installment of 20 tons at $2,520 U.S. each, totaling $50,400 U.S., was, as per agreement and upon prepayment by the buyer, loaded on to one of buyer's trucks on 13 February 1998. After a second prepayment of $50,400 U.S. on 16 February 1998 the second installment was not delivered. Since until the end of the February, the month for delivery in the contract, no more deliveries were made, the buyer demanded that the seller return the prepayment of $50,400 U.S. offering to cover the costs involved. Thereafter, through intervention by G, two partial deliveries for 4 March 1998 were planned; however, the seller refused them.
The buyer initiated the arbitration proceedings of the contractually agreed upon "Hamburg Friendly Arbitration" by serving papers on the seller. The buyer demanded the return of the performed prepayment of $50,400 U.S. with interest at 9.5% from 16 February 1998. It also expressly declared the contract avoided due to non-performance and refusal to perform. The buyer named an arbitrator and requested the seller to do the same. As the seller delayed in naming an arbitrator, the Hamburg Chamber of Commerce named one for it upon petition by the buyer. The action was mostly successful. Germany and the Czech Republic are contracting states of the CISG.

Question:
What substantive law should be applied in the case at hand?

 

 

 

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II.
Facts:
The Italian [seller] brings a claim against the German [buyer] for the amount still owing for two deliveries of wall tiles. The parties have been in an ongoing business relationship since 1982. The [buyer] ordered tiles from the [seller]. Under "Terms of Payment" in Order No. 1853 is written: "14 Days 3%-30 Days net." And in Order No. 1856: "as in the past." These represent written confirmations sent to the [buyer] of orders which were previously communicated orally. Underneath, on the right side, is written: "We thank you for this order, which was accepted under reservation of confirmation according to our delivery and payment conditions; respectively, delivery and payment conditions of the shop for which this order is destined." The [seller] debited the [buyer's] account on February 22, 1990 in the amount of 8436.92 DM and, on June 7, 1990, in the amount of 8466.30 DM. The invoice of the [seller] contained the following printing: ". . . complaints will be acknowledged only before the installation of the goods; in any case the goods may be rejected only up to 30 days from the date of the invoice." The [buyer] paid only an installment payment. She gave notice of lack of conformity of the "Anna" tiles which were invoiced on February 22, 1990, and were already installed. Based on the foregoing, the [seller], the [buyer] and the layer of the tiles agreed that the delivery of replacement tiles be without charge and that the [buyer] be credited. The replacement delivery of tiles was never installed due to reported defects. The [buyer] maintains that the second shipment of tiles displayed an even higher number of defects than the original one. She therefore asserts a set-off claim for damages.
She additionally specifies a set-off claim of damages for further deliveries of defective tiles; in the alternative, she claims a right of retention arising out of a claim for the remedy of the nonconformity by repair of the tiles. At issue are tiles bought from the [seller], which were sold to the customers on October 25, 1988 and in the year of 1990, the latter from the delivery invoiced on June 7, 1990. The [buyer] refers to the rejections by her customers, which she immediately communicated to the [seller]. Finally, the [buyer] takes the position that the invoices were due only 90 days after they were issued. The complaint was in substantial part valid.

Question:
Did the seller breach her obligation under the contract to deliver goods fit for the purposes for which goods of the same kind would ordinarily be used?

 

Ⅲ.
Facts:
The plaintiff, a Swiss buyer, placed an order with the defendant, an Italian seller. The order contained a request that the goods be delivered within the following 10 to 15 days. Almost two months later, the seller, after asking the buyer to confirm its order, specified the purchase price and assured the buyer that all the goods would be dispatched within a week. Two months later, the buyer had not yet received the goods. As a consequence, the buyer sent the seller a notice canceling the order and requiring refund of the price. The seller admitted that it had handed over the goods to the carrier only after receiving the notice of cancellation from the buyer, and that, moreover, the delivery was partial. The buyer refused to accept the late and partial delivery and, as the seller did not refund the purchase price, commenced legal action claiming avoidance of the contract for breach by the seller. The buyer also claimed a refund of the purchase price with interest and damages.

Question:
Was the buyer entitled to avoid the contract and to recover the full purchase price already paid to the seller?

 

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Ⅳ.
Facts:
The plaintiff buyer asserts a claim for damages against the defendant seller, due to a delivery of adhesive foil covers which did not conform to the terms of the agreement. Seller is a German firm, buyer an Austrian firm. In March of 1995, the buyer ordered 7,500 square meters of foil from the seller, for a price of 0.57 DM per square meter. The foil was supposed to be self-adhesive, and suitable for being peeled from polished premium steel sheets so that no adhesive residue would remain. The foil, which was delivered on March 28, 1995, did not meet these specifications because the acrylic adhesive which was applied was not suitable for that particular purpose. The [buyer] inspected the foil for correct quantity and readily apparent defects, but did not conduct an experimental removal of the foil from the metal sheets. On April 20, 1995, the B. Metal and Baths Construction Corporation B. GmbH Company, which has a contract with the buyer, informed the buyer that after removal of the foil "the entire adhesive residue remained on the polished surface, like an adhesive film." On Apri1 21, 1995, the buyer informed the seller of the lack of conformity. B. GmbH Company cleaned the steel sheet surfaces at a cost of 492,240 Austrian Schillings SA, for which they were reimbursed by the buyer.
The parties attempted to reach an agreement. In the various conversations and written correspondence that ensued, the seller never mentioned that she found fault with the fact that the buyer had first informed her of the lack of conformity on April 21, 1995. The buyer demands compensation of 492,240 SA from the seller. She maintains that this amount was absolutely necessary for the cleaning of the metal sheets. Furthermore, the buyer contends that the complaint about the defective quality was made within the period prescribed by the CISG, given that the General Business Terms and Conditions established by the seller, which indisputably provide for a deadline of complaint of eight days, did not become part of the contract. The defect only became apparent after further processing of the adhesive film.
The buyer was of the opinion that the seller had maliciously deceived her. Previously, the seller had indeed used unvulcanized rubber adhesive, which did not cause any such problems.
The seller denied the complaint. According to her, the complaint regarding the defective quality was not made within the prescribed deadline. Furthermore, the seller maintains that this particular acrylic adhesive had been used on prior occasions. It was not that the adhesive was unsuitable, but rather that an incorrect adhesive charge was used in processing. The seller could not have foreseen this result. She also raised an objection based upon the time limitation stated in Paragraph 477 of the Bürgerliches Gesetzbuch (BGB ).
  The Heidelberg trial court rendered a decision that the claim was justified and ordered the seller to pay the buyer 35,160 sA. To avoid repetition, reference will be made to the factual findings and decisive factors of that decision. The seller appealed the trial court's decision. She repeats and emphasizes her initial pleading. She considers a claim made after twenty-five days untimely, regardless of whether one considers Number 13 of the seller's General Business Terms and Conditions, Paragraph 377 of HGB, or Articles 38 and 39 of the CISG.
The seller moves for the reversal of the Heidelberg trial court decision of October 2, 1996, and requests that the suit be dismissed. The buyer moves for the dismissal of the appeal.
In addition to the arguments the buyer made to the trial court, the buyer contends that she is excused under Article 44 of the CISG, since extensive sample testing was not necessary to inspect the delivered goods. Moreover, the buyer argues that the seller could not protest the possibly untimely complaint, since the seller raised no objections in prior negotiations regarding the claim for damages. Finally, the seller behaved in bad faith within the meaning of Article 40 of the CISG, because she was aware of the lack of conformity in the delivered foil.
Due to the prolonged dispute of the involved parties, reference will be made to the written correspondence, including enclosures.

Question:
Is the plaintiff [buyer] entitled to damages against the defendant [seller], due to a delivery of adhesive foil covers which did not conform to the terms of the agreement?

 

 

 

 

END OF EXAM



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