UIA Training Course International Sale of Goods Rechtsanwalt Prof. Dr. Piltz www.brandi.net
We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts. U.S. Supreme Court 1972 (Bremen Case)
assessment from a national point of view state A Competent Court according to the legal rules valid in state A Applicable Law according to the legal rules valid in state A double approach state B Competent Court according to the legal rules valid in state B Applicable Law according to the legal rules valid in state B
PIL is national/domestic law with the function to settle international cases domestic law choice of applicable law no solution solution could be an internationally harmonized PIL, but even then remains: party autonomy not accepted worldwide differing approaches to decide whether the PIL points to the national law applicable choice of law is made validly national law applicable sometimes difficult differing range of choice of law reference law to discern and to apply consent by both parties required special connecting factors overriding rules ordre public no European B2B-sales law striking differences between the statute laws of European countries solution: international uniform law
subject matter 1. sales contract of goods 2. no exception according to Art. 2 or Art. 3 territorial 1. places of business in different States 2. contact with at least one Contracting State both places of business in Contracting States PIL of the forum leads to a Contracting State temporally formation of contract or offer to contract after CISG entering into force in the respective Contracting State
exports Contracting State imports German law others CISG foreign laws
language General terms and conditions (the text and the indication of its application) have to be put down either in the native language of the other party or in the language of the negotiation or the contract indication An indication to the existence and application of general terms and conditions is neccessary, at the latest when concluding the contract, clearly and in the due language. delivery General terms and conditions must be completely at hand of the other party at the latest when the contract is concluded (duty of information). express or implicit agreements prevail
If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: (a) if the contract of sale involves carriage of the goods in handing the goods over to the first carrier for transmission to the buyer; (b) if, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place in placing the goods at the buyer s disposal at that place; (c) in other cases in placing the goods at the buyer s disposal at the place where the seller had his place of business at the time of the conclusion of the contract.
A collection of the goods by the buyer at the seller s place of business is definitely not a sale which involves carriage of the goods even if the buyer should transport the goods subsequently Consequently, a sale involving carriage of the goods does not comprise any possible constellation in which this being typical in international contracts of sale goods are transported subsequently On the other hand, taking into account the bearing of costs and the passing of risk, a sale which involves carriage of the goods cannot be qualified as a contract where the seller must transport the goods or have them transported at his own expenses and risk to the place of business of the buyer Therefore, a sale involving carriage of the goods in the meaning of Art. 31(a) CISG seems to be restricted to situations where neither the buyer has to take delivery at the seller s place of business nor the seller has to deliver at the buyer s place of business
If the place of delivery and the place of taking delivery are not identical the transport of the goods must be arranged: Art. 32(2) and Art. 31(a) However, the carriage as such is not an obligation of the seller Looked at it in a different point of view: If the place of delivery and the place of taking delivery are identical, in the meaning of Art. 31(a) CISG no carriage of the goods is necessary in order to fulfil the contract of sale irrespectively of the fact that the goods are transported The fact that the transport of the goods is carried out by an independent carrier is a typical feature of a sale involving carriage of the goods, but does not amount to the decisive criterion In case of doubt, delivery transactions governed by the CISG are sales which involve carriage of the goods pursuant to Art. 31(a)
EXW FOB CIF DAT COD F.O.B. DDP
The obligations of the seller and the buyer regulated by the Incoterms Rules concern in particular: responsibility for export, import and transit clearance including security clearance contracts of carriage and insurance place/point of delivery and of taking delivery act of delivery, loading and unloading transfer of risks allocation of costs notices and assistance with information packaging and marking
The Incoterms 2010 consist of 11 different clauses These 11 clauses are arranged in 2 groups according to the mode of transport 4 groups according to systematic characteristics The clauses DAF, DES, DEQ and DDU fell away Newly introduced are the clauses DAT and DAP E F C D
FCA free carrier FAS free alongside ship - any mode of transport - especially designed for dispatch in container - handing over the goods or placing them at disposal - only for sea or inland waterway transport - placing at disposal FOB free on board - only for sea or inland waterway transport - placing on board the vessel or procuring goods already so delivered
Gütersloh Hamburg FCA Buenos Aires Mendoza the place of delivery may be fixed at the place of business of the seller or at any place between Gütersloh and Hamburg Intersection for: place of delivery and place of taking delivery allocation of costs transfer of risks carriage export clearance up to the seller to obtain import and transit clearance up to the buyer to obtain
CFR cost and freight CIF cost insurance and freight - only for sea or inland waterway transport - placing on board the vessel or procuring goods already so delivered - only for sea or inland waterway transport - placing on board the vessel or procuring goods already so delivered - insurance cover during carriage
CPT carriage paid to - any mode of transport - handing over to the carrier CIP carriage and insurance paid to - any mode of transport - handing over to the carrier - insurance cover during carriage
CPT und CIP Gütersloh Hamburg Buenos Aires Mendoza the place of delivery may be fixed at the place of business of the seller or at any place between Gütersloh and Hamburg Intersection for: place of delivery transfer of risks agreed upon insurance export clearance up to the seller to obtain Intersection for: place of taking delivery carriage allocation of costs import and transit clearance up to the buyer to obtain
costs initiative / mode risk transit EXW S B B B B B B FCA S S B B B B B packaging, marking seller s - - - - - - places of business - - - - - - buyer s act of delivery main-transport exportclearance importclearance FAS S S B B / ship B B B FOB S S B B / ship B B B CPT S S S S B B B CIP S S S S B B B CFR S S S S/ ship B B B CIF S S S S/ ship B B B DAP S S S S S S B DAT S S S S S S B DDP S S S S S S S place of delivery place of taking delivery placing at disposal observations seller s minimum obligations 2 modes depending on place of delivery seller has to insure the transport seller has to insure the transport seller has to unload seller s maximum obligations handing-over
If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may..., Art.45(1) If the buyer fails to perform any of his obligations under the contract or this Convention, the seller may..., Art. 61(1) uniform term of breach of contract
remedies by the seller reduction in price repair substitute delivery avoidance damages additionally: interest insofar as reasonable for the seller only in case of a fundamental breach of contract only in case of a fundamental breach of contract additionally: interest art. 50 art. 46(3) art. 46(2) art. 49(1)a in principle intact restitution required within a reasonable time art. 45(1),(2)