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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二参考答案
 

I
简答题


Ⅰ. FOB, CIF, and CFR are all terms which relate to the delivery of the goods and they will affect the price of those goods.
FOB means Free On Board. This means that the goods will be deemed to be delivered to the Buyer at the point that the goods pass the ship's rail. Obviously, this will normally be as the goods are swung in their container onto the ship.
CIF means Cost, Insurance, and Freight. This means that the Seller is providing a price which includes the cost of the goods, the insurance of the goods for their journey to their destination port/unloading point, and the cost of the ocean freight or whichever method of freight is being used to transport the goods to the Buyer. Therefore, delivery of the goods when quoted CIF will usually take place at the port of unloading.
CFR is also sometimes termed as C&F. This means cost and freight, and is where the Seller is providing a price which includes the cost of the goods and of the freight, but NOT insurance. Therefore it is similar to CIF but does not include insurance of the goods on their journey to the Buyer.

II. The functions of the bill of lading include
(1)A receipt for the goods shipped;
(2)Evidence of the contract of carriage;
(3)A document entitling the holder to possession of the goods.
The bill of lading is different from other transportation documents, since it is the document of title.

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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 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).

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论述题


There are a number of remedies for breach of contracts under the CISG. Both the buyer and the seller may be liable for violating the contracts. You may find the relevant provisions in the CISG.
A. The major remedies for the breach of contract by the seller include:
B. The actual performance of the buyer
C. The delivery of substitute goods
D. The reduction of contract price
E. The declaration of the voidance of the contract
F. The damages
On the other hand, the remedies available to the seller in case that the buyer violates the contract are:
A. The declaration of the voidance of the contract
B. The actual performance of the obligation by the buyer including making payment, take the delivery and fulfill other obligations stipulated in the contract
C. The damages
D. If applicable, making specification by the seller (Art. 65, CISG)
It is notable that the damages could be claimed with other forms of remedies.



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