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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一参考答案
 

I
简答题


Ⅰ. Article 4(a) provides that the convention is not concerned with the validity of the contract or any of its provisions or of any usage.
By Art 2(a) the Convention does not apply to sales of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew or ought to have known that the goods were bought for any such use.
Article 4(b) provides that the Convention is not concerned with the effect which the contract may have on the property in the goods sold.
Article 5 provides that the Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person.

II. The remedies available to both buyers and sellers are
(1)Suspension of performance;
(2)Voidance in anticipation of a fundamental breach;
(3)Avoidance of an installment contract, and
(4)Damages.

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II
案例分析题


Ⅰ. The applicable substantive law is determined by German private international law. Under German private international law the choice of arbitration venue in Hamburg not only leads to local procedural law but, absent other agreement, also to the choice of German substantive law .Under German as well as Czech law, UN sales law applies for sales contracts between parties in different States (United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, CISG). Here both the prerequisites of Art. 1(1)(a) and Art. 1(1)(b) CISG are present, since the states of both parties' places of business are Contracting States (1)(a), and the rules of private international law lead to application of the law of a Contracting State (1)(b).

II. The seller breached her obligation under the contract to deliver goods fit for the purposes for which goods of the same kind would ordinarily be used. (Article 45, in connection with Article 35(2)(a) CISG). This is established by virtue of expert opinion. This defect of the tiles is substantial, contrary to the position taken by the [seller]. It is without significance that the [seller] subsequently delivered a greater number of tiles than had been ordered, so that, probably, enough tiles of one of the two kinds would have been present, such that the room for which they were intended could have been decorated. It cannot be expected or required of the buyer to open all packages, to sort out the tiles, to test to see if enough of one sort were delivered and then to pack them again. The [buyer] has not lost her grounds for appeal over these defects because of the fact that the [seller] was prepared to make subsequent delivery without acknowledging any legal obligation to do so . . . That means no waiver of liability for potential defects. Insofar as the [buyer] refuses to pay the sales price for the orders ("Anna" and twice "Anna Decor"), she does not demand damages, but has, rather, partially avoided the contract. (Article 51(1); Article 49(1)(a) CISG). The sales price is reduced. Contrary to the position taken, the right to avoid encompasses also that portion of the contract which relates to the decorative tiles. As the similar designation demonstrates, they too concerned the "Anna" tiles. Without the floor tiles, the decorative tiles would have been of no interest to the [buyer].

Ⅲ. According to the statements and conduct of the parties the contract was to be considered concluded at the time the order was confirmed, and that the seller was bound to dispatch all the goods within the following week. The delay by the seller in delivering the goods, together with the fact that two months after the conclusion of the contract the seller had delivered only one third of the goods sold, amounted to a fundamental breach of the contract according to article 49(1)(a) CISG.

Ⅳ. The CISG was applicable under both articles 1(1)(a) and 1(1)(b) CISG. The buyer's claim should be dismissed. For durable goods, a reasonable period for examination would be 3 or 4 days (article 38(1) CISG), the extent and intensity of examination being dependent upon the type of goods, packaging and testing possibilities. Although there had been long-standing business relations between the parties, spot-checks and test treatments were required where the lack of conformity would have become evident only upon use. As subsequent testing indicated, had the buyer begun tests within 3 or 4 days after delivery, the defect would have been discovered within 7 days. For durable goods, notice should be given to the seller within 8 days after the lack of conformity ought to have been discovered. Therefore, as notice was given after the expiry of a reasonable notice period, the buyer lost its right to rely on the lack of conformity (article 39(1) CISG). Moreover, although under article 44 CISG the buyer could raise a reasonable excuse for failure to give the required notice in accordance with article 39(1) CISG, the former article did not apply to a failure to examine in keeping with article 38(1) CISG. Further, it was insufficient that the seller had knowledge of the glue glazing. The buyer had to prove that the seller knew this would constitute a lack of conformity (article 40 CISG). By negotiating over the lack of conformity, the seller did not forfeit its right to plead that notice was given out of time. Taking into consideration the principle of good faith, such forfeiture could only be recognized if special circumstances so indicate (articles 7(1) and 80 CISG).



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