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学生用合同法后总16-chapt 16 sale of goods

2011-07-02 50页 ppt 673KB 45阅读

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学生用合同法后总16-chapt 16 sale of goodsnullChapter 16 SALE OF GOODS**Chapter 16 SALE OF GOODS16.1 formation of the contract definition of contract for the sale of goods A contract for the sale of goods is a contract whereby the seller agrees to transfer the property in goods (ownership) to the b...
学生用合同法后总16-chapt 16 sale of goods
nullChapter 16 SALE OF GOODS**Chapter 16 SALE OF GOODS16.1 formation of the contract definition of contract for the sale of goods A contract for the sale of goods is a contract whereby the seller agrees to transfer the property in goods (ownership) to the buyer for a money consideration called the price and the buyer agrees to buy from the seller for the goods consideration called goods. Chapter 16 SALE OF GOODS- 16.1 **Chapter 16 SALE OF GOODS- 16.1 Let’s review the concepts studied in last term - “Contract” An agreement made between two or more persons, with the intention of creating certain legal rights and duties , which is enforceable at law. -“consideration” A price paid for the promise by the promisee Chapter 16 SALE OF GOODS- 16.1 **Chapter 16 SALE OF GOODS- 16.1 Let’s review the concepts studied in last term contract elements : (1) Intention (订约意图) (2) agreement () (3) consideration (对价) (4)capacity (订约能力) (5)consent (意思真实) (6)legality (目的合法) (7)form (形式合法) The sales contract will not become effective until those elements are present Chapter 16 SALE OF GOODS- 16.1 **Chapter 16 SALE OF GOODS- 16.1 (2) Definition of goods in the sale of goods legislation, it is defined as all tangible movable property.(有形的动产) it does not include: - land - rights - services Chapter 16 SALE OF GOODS- 16.2 **Chapter 16 SALE OF GOODS- 16.2 16.2 Contract of sale of goods or work and materials ? Not all contracts with goods fall within the sale of goods legislation; Look at the substance or essential character of the contract and the intention of the parties when trying and determining whether the main purpose of the contract is to transfer ownership of goods or not. • • •Chapter 16 SALE OF GOODS- 16.2 **Chapter 16 SALE OF GOODS- 16.2 16.2 Contract of sale of goods or contract for work and materials ? If the main part of the agreement is the skill and experience to be displayed by one of the parties in performance of the contract, then it is a contract for work and labor and supply of materials. Chapter 16 SALE OF GOODS-16.4 **Chapter 16 SALE OF GOODS-16.4 16.4 Implied terms under the sale of goods legislation implied terms (默示条款) - compulsory terms provided by sales law .They are different from express terms (明示条款) which are agreed terms through negotiation and finally written on sales contract . Title(物权) description(货物的规格) merchantable quality(货物的商销品质) fitness for purpose(购物的目的) Correspond with sample(符合样品) Chapter 16 SALE OF GOODS-16.4 **Chapter 16 SALE OF GOODS-16.4 Compare the implied terms under the sale of goods legislation with express terms in the sales contract Chapter 16 SALE OF GOODS-16.4.1 **Chapter 16 SALE OF GOODS-16.4.1 16.4 Implied terms under the sale of goods legislation 16.4.1 Title(物权): (1) Right to sell the goods —an implied condition that the seller has the right to sell the goods or will have the right to sell them (2) Quiet possession—an implied warranty that the buyer shall have quiet possession of the goods bought or not be disturbed. Ex. sued by third party. (3) Free from encumbrances(抵押权)—an implied warranty that the goods are free from any charge in favor of third party who is unknown to the buyer Ex. Storage charges have to be paid before the goods can be collected. Chapter 16 SALE OF GOODS-16.4.2 **Chapter 16 SALE OF GOODS-16.4.2 16.4.2 Sale by description (依据货物的规格销售) Sale by description is an implied condition, meaning : the goods shall correspond with the contract description ; and if the sale is by sample as well as description, the bulk of the goods will correspond with both. null** to conform to the contract description relates to the identity rather than the quality of the goods. If the goods are not of the expected quality but conform only to the contract description, there is no remedy.Chapter 16 SALE OF GOODS-16.4.3 **Chapter 16 SALE OF GOODS-16.4.3 16.4.3 Fitness for purpose(满足购物目的) An implied condition where the buyer makes known to the seller the particular purpose for which the goods are required and shows reliance on the seller's skill and judgment. For this rule, four conditions must be satisfied: (1) the buyer has made known either expressly or impliedly the particular purpose for which the goods are required 16.4.3 Fitness for purpose(满足购物目的)**16.4.3 Fitness for purpose(满足购物目的)For this rule, four conditions must be satisfied: (2) the buyer has relied on the seller's skill and judgment (3) the goods of a description is in the course of the seller's business to supply (4) the buyer must not specifically request the goods under their patent or trade namesChapter 16 SALE OF GOODS-16.4.4 **Chapter 16 SALE OF GOODS-16.4.4 16.4.4 Merchantable quality(达到商销品质) (1) An implied condition and this rule is applicable where: goods are bought by description from a seller who deals in goods of that description and the buyer has not had the opportunity to examine the goods. Here there is no need for the seller to know what the goods are to be used for. Merchantable quality does not apply to the situation where the goods has several uses. It means the goods is not required to be fit for anyone of these purposes. . Chapter 16 SALE OF GOODS-16.4.4 **Chapter 16 SALE OF GOODS-16.4.4 Merchantability, and its duration, means looking at the nature and purpose of the goods, in relation to: - price; - the description applied to the goods ; - whether the purpose for the goods had been made known to the seller; - any other relevant circumstances For this rule, there are four conditions that must be satisfied: - Has there been a sale by description? - Have the goods been bought from a seller who deals in goods of that description? - Has the buyer examined the goods? - Do the goods have one purpose or several?Chapter 16 SALE OF GOODS-16.4.4 **Chapter 16 SALE OF GOODS-16.4.4 16.4.5 Sometimes there can be a breach of both fitness for purpose and merchantable quality 16.4.6 Sale by sample(依据样品销售) An implied condition that the bulk shall correspond with the sample. For this rule, any one of the following three conditions must not be breached , if breached, buyer may reject the goods : - that the bulk shall correspond with the sample in quality; - that the buyer shall have a reasonable opportunity of comparing the bulk with the sample; - that the goods must be free from any defect which would not be apparent on a reasonable examination of the sample   17.10 The Vienna Sales Convention (CISG) **17.10 The Vienna Sales Convention (CISG) The intention and purpose of the convention is to establish a set of rules acceptable to trading nations in reducing the various problems caused by the application of different domestic sales laws of different counties. The main contracting states includes China/US/France/Germany/Italy/Switzerland/ Sweden/Canada/ Spain /Singapore/ Norway/Netherlands/ etc Japan/Britain are not contracting states the application of CISG (公约的适用)**the application of CISG (公约的适用) for the application of CISG two factors should be considered : - parties to the sales contract under CISG , - the sales under CISG. A. the parties to the sales contract under CISG relying on the principle of freedom of contract (契约自由原则) any parties to a contract could unconditionally agree to apply CISG as the governing law (适用法)of their contract or agree not to apply CISG. the application of CISG (公约的适用)**the application of CISG (公约的适用)if no stipulation as to application of governing law is provided for in the contract CISG will automatically apply in the either of following situations: (1) if the parties to the contract have their “places of business ”in the contracting states; (合同当事人营业执照上的“营业地”处于不 同的缔约 国) or (2) if the rules of private international law(国际私法冲突规范) leads to application of the contracting state null** if the rules of private international law leads to application of the contracting state rules of private international law are used to determine the proper law (准据法)when governing law is not expressly or implicitly set forth in the contract. the determination of proper law will be in most cases guided by the principle of closest and most real connection (最密切联系原则) ** This principle is sued to choose the proper law by trying to find which country’s law has the closet connections with the contract in question in view of following connecting factors : 1. where the contract was made ; 2. The place of performance; 3. residency of parties 4. language of contract; 5. currency used; 6. legal concept used ; 7. Where arbitration is heldprinciple of closest and most real connection ** Short summary of application of the contracting state using the rules of private international law(国际私法冲突规范) -if no stipulation as to application of governing law is provided for in the contract, i.e no governing law in the contract, then -proper law by using -principle of closest and most real connection, used by using -connecting factors (7 connecting factors) ** CISG has not defined the “goods” but listed some excluded sales in Article 2 , to which CISG can not be applied (a) goods for personal,family or household use; (b) goods to be sold by auction; (c) goods to be sold by authority of law; (d) stocks, shares, investment securities, negotiable instruments (汇票/本票/支票)and money; (e) ships ,vessels,hovercrafts, aircrafts; (d) electricity B. sales excluded under CISGnull**formation of contract under CISG Articles 14-24 set out the rules governing the offer and acceptancenull** rights and obligations of parties under CISG A. seller's obligations (1) to deliver the goods as prescribed in the contract (2) to deliver the documents as prescribed in the contract (3) implied duties such as : the right to sell the goods; goods must correspond with the description; the merchantable quality; fit for specified purpose; the bulk corresponds with the sample in quality; null** rights and obligations of parties under CISG B. buyer's obligations (1)  to pay the price of goods (2)  to take delivery of the goodsCase1: the application of CISG**Case1: the application of CISGBasic facts: An American company owns a number of caravans(大篷车)which are situated in a yard in Melbourne. The company sells those caravans to a French company which intends to retail them in Melbourne too. Question: As to formation of the contract is CISG applicable to this case? Case1: the application of CISG** Case1: the application of CISG Answer: CISG is applicable in this case Reason: Case2: the application of CISG**Case2: the application of CISG Basic facts: One Australian company owns a quantity of timber(木材)which is situated in Fiji and it sells that timber to another Australian company on terms that the timber is to be shipped to a mill(工厂)owned by the Australian buyer in New Zealand. Question: Does CISG apply to this case? Case2: the application of CISG**Case2: the application of CISGAnswer: Reason: null** -END-null*CHAPTER 20 AGENCY QUESTIONARE*QUESTIONAREIf you are asked to represent me to borrow RMB10,000 from L , who will be responsible to L for returning the borrowed money together with interests ,you or I ? If you are asked to buy me a bottle of drink who should pay the money to the seller, you or I ? 20.1 DEFINITION FORMATION OF AGENCY *20.1 DEFINITION FORMATION OF AGENCY definition: Agency is kind of legal relation where some person or organization called agent ,authorized by some other person or organization called principal , does business or other legal affairs in the name of the principal , the principal shall thus take the responsibilities or enjoy the benefits brought out by his agent’s actions. 20.1 DEFINITION FORMATION OF AGENCY *20.1 DEFINITION FORMATION OF AGENCY (2 ) Deals with third party in the name of either principal or exceptionally himself AGENT THIRD PARTY (代理人) (第三人 ) (1) agency agreement PRINCIPAL(委托人) (3) the principal accepts the legal results 20.2 CREATION OF AGENCY*20.2 CREATION OF AGENCYthe coverage of creation of agency - agency created by agreement - agency by operation of law A. agency by cohabitation B. agency of necessity - agency arising from ratification - agency presumed from principal’s action 20.2.1 AGENCY CREATED BY AGREEMENT*20.2.1 AGENCY CREATED BY AGREEMENTexpress authority (明示授权) -orally -in writing eg. power of attorney (委托) implied authority(默示授权)P364 the agent has authority to do anything that is incidental to or necessary for the carrying out of the acts within express authority the Snowy Mountains Hydro case (1966) the Snowy Mountains Hydro case (1966)*the Snowy Mountains Hydro case (1966)the principal , a Belgian manufacturer, appointed an Australian company as agent to collect progress payment checks in Australia and then remitted them to Belgian . Before remitting the money overseas the agent first deposited the collected money at its own Australian account , the bank allowed the agent to do this although the checks were made out to the name of the principal. The agent went into bankruptcy , all its assets including its principal’ bank account were seized by the creditors. The principal sued the bank, claiming it should never have allowed the agent to bank checks into agent’s account. the Snowy Mountains Hydro case (1966)*the Snowy Mountains Hydro case (1966) held: 20.2.2 AGENCY BY OPERATION OF LAW*20.2.2 AGENCY BY OPERATION OF LAW1. Agency by cohabitation (因同居关系而产生代理) basic concept of cohabitation: the unmarried wife, in the name of her husband , buys or sells reasonable household necessaries, the pledged husband is presumed financially responsible for the household necessaries or vice versa (反之亦然). legal position of Chinese law towards the cohabitation. 20.2.2 AGENCY BY OPERATION OF LAW*20.2.2 AGENCY BY OPERATION OF LAW2. Necessity of emergency ( 客观情况必须的代理) See: Great Northern Railway v. Swaffield ( p 362 ) the essential four conditions for occurrence of agency of necessity of emergency with reference to the above case P36220.2.3 AGENCY BY RATIFICATION *20.2.3 AGENCY BY RATIFICATION Concept of agency by ratification (追认的代理) : if agent has acted without the principal’s authority, however, the principal subsequently ratifies agent’s unauthorized action. See: Bolton Partners v. Lambert (1889) ( p362) Conditions for the creation of an agency by ratification ( p363) 20.2.4 AGENCY PRESUMED FROM PRINCIPAL’S ACTION*20.2.4 AGENCY PRESUMED FROM PRINCIPAL’S ACTION A. The concept of agency by estoppel agency by estoppel ,based on principle of estoppel (禁止悔言原则) , is kind of agency where the third party reasonably believes that the unauthorized agent has apparent authority to do legal matter because of principal’s action or non- action. 20.2.4 AGENCY PRESUMED FROM PRINCIPAL’S ACTION*20.2.4 AGENCY PRESUMED FROM PRINCIPAL’S ACTIONprinciple of estoppel (禁止悔言原则) The party is prevented by his own acts from claiming the right to detriment of other party who was entitled to rely on such conduct and has acted accordingly According to this principle , the principal is prevented from denying the acts made by the agent on his behalf for the third party has been made by the principal to reasonably believe the agent is authorized . 20.2.4 AGENCY PRESUMED FROM PRINCIPAL’S ACTION *20.2.4 AGENCY PRESUMED FROM PRINCIPAL’S ACTION conditions for the occurrence of apparent authority: a. the agent is not authorized; b. the unauthorized representation is made to a third party by the unauthorized agent ; c. principal’s action or non- action has made the third party reasonably believe the agent does have the authority and then relying on the representation by agent; 20.2.4 AGENCY PRESUMED FROM PRINCIPAL’S ACTION*20.2.4 AGENCY PRESUMED FROM PRINCIPAL’S ACTION B. Situations where apparent authority may occur -where a party is held out or represented as another’s agent and is not or never had been an agent ; or - where a party has ceased to be an agent ; or - where a party is represented or shown by the principal to a third party as having extensive authority than he has. null*C. Limitations on liability for apparent authority 1. third party is given notice of an agent’s restricted authority; 2. Notion of usual authority- common knowledge the liability of principal for an agent ‘s action, will be determined according to the degree of authority which would usually be held by that type of class of agent. eg. If a company has permitted an agent to act as a branch manager, without appointment to such effect. The company would be liable for all actions of agent falling within the usual authority possessed by branch manager. null*D. illustrations of agency of apparent authority - where a person not officially a partner of a firm is represented as such; - where a purchasing officer has had his authority to act as agent is terminated. E. Implied authority and apparent authority implied : recognized where a principal appointed an agent but has not given that person sufficient specific instructions; apparent : based on outward appearance of agency relationship in the eyes of third party. 20.3 CLASSIFICATION OF AGENTS *20.3 CLASSIFICATION OF AGENTS 1.Special or limited agents (专项代理) P360 - authorized to only make a particular type of contract. 2.General agents(专类代理) - authorized to make contracts of a class normal for that type of agency. 3.Universal agents (全权代理) - authorized to do almost anything principal can do. They are usually appointed under a power of attorney. eg. a person going abroad for a long time could empower a close friend or his parents , in his absence, to act as universal agents in dealing with any matters. 20.4 DUTIES AND LIABILITIES OF PARTIES IN AGENCY RELATIONS*20.4 DUTIES AND LIABILITIES OF PARTIES IN AGENCY RELATIONS Deals with third party in the name of either principal or exceptionally himself (2 ) Agent third party (代理人) (第三人 ) agency agreement(1) the principal accepts the legal results(3) Principal(委托人) 20.4.1 DUTIES OF AGENT TO THE PRINCIPAL*20.4.1 DUTIES OF AGENT TO THE PRINCIPAL(1) follows any lawful instruction given by the principal; failure
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