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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二
 

 

本试卷

6

 

5 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.

 

$$分页$$

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!

 

$$分页$$

I
简答题(30%)
Ⅰ. Please explain what FOB, CIF, CFR stands for.

 

 

 

 

 

II. What are the functions of the bill of lading? What are the major differences between the bill of lading and other transport documents?

 

 

 

 

II

案例分析题(40%)
请阅读以下案例,并回答问题。

Ⅰ.
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?
 

 

II.
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 "spolecnost s 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?

 

 

 

论述题(30%)

Please analyze the remedies for breach of contract under the CISG.

 

 

 

 

 

END OF EXAM



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