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CHAPTER3CONTRACTSFORTHEINTERNATIONALSALEOFGOODS 07/10/2013 Lecturer: Nguyễn Thị Minh Hà 1 CHAPTER3 MATERIALS • Textbook “Foreign Trade Techniques”; • Incoterms 2010 (ICC); • UN Convention on ContractsfortheInternationalSaleof Goods; • UNIDROIT Principles ofInternational Commercial Contracts; • Civil Code (2005); • Commercial Law (2005); • Sample Contracts; 07/10/2013 Lecturer: Nguyễn Thị Minh Hà 2 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODS 1. Concept 1.1. Contractsfor purchase and saleofgoods 1.1.1. Contractsfor purchase and saleof property Civil Code 2005, Article 428: A contract for purchase and saleof property is an agreement between the parties whereby the seller has the obligation to hand over the property to the purchaser and receive payment, while the purchaser has the obligation to accept the property and make payment to the seller. 07/10/2013 Lecturer: Nguyễn Thị Minh Hà 3 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODS 1.1.2. Contractsfor purchase and saleofgoods Commercial Law 2005, Article 3: Purchase and saleofgoods mean commercial activities whereby the seller is obliged to deliver goods, transfer ownership ofgoods to the purchaser and receive payment; the purchaser is obliged to pay the seller, receive thegoods and the ownership thereof as agreed. Goods include: • All types of movables, including those to be formed in the future; • Things attached to land. 07/10/2013 Lecturer: Nguyễn Thị Minh Hà 4 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODS Contracts for purchase and saleof goods: Contractsfor purchase and saleofgoods is an agreement between the parties, according to which the seller has the obligation to deliver goods, transfer the ownership ofthegoods to the buyer and receive payment, the buyer has the obligation to arrange payment, receive thegoods and the ownership thereof. Note: Commercial Law 2005 does not provide any concept forcontractsfor either domestic or international purchase and saleof goods. 07/10/2013 Lecturer: Nguyễn Thị Minh Hà 5 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODS 1.2. ContractsfortheinternationalsaleofgoodsContractsfortheinternationalsaleofgoods = Contractsfor purchase & saleofgoods + international elements. 1.2.1. International Law 1.2.1.1. Convention relating to a Uniform Law on theInternationalSaleofGoods (Hague Convention 1964) Article 1, Chapter I, Annex (Uniform Law on theInternationalSaleof Goods): The present Law shall apply to contractsofsaleofgoods entered into by parties whose places of business are in the territories of different States, in each ofthe following cases: 07/10/2013 Lecturer: Nguyễn Thị Minh Hà 6 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODS (a) where the contract involves thesaleofgoods which are at the time ofthe conclusion ofthe contract in the course of carriage or will be carried from the territory of one State to the territory of another; (b) where the acts constituting the offer and the acceptance have been effected in the territories of different States; (c) where delivery ofthegoods is to be made in the territory of a State other than that within whose territory the acts constituting the offer and the acceptance are effected. The application ofthe present Law shall not depend on the nationality ofthe parties. 07/10/2013 Lecturer: Nguyễn Thị Minh Hà 7 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODS 1.2.1.2. United Nation Convention on ContractsfortheInternational Sales ofGoods (CISG 1980) CISG, Article 1, Chapter I, Part I : This Convention applies to contractsofsaleofgoods between parties whose places of business are in different States; Neither the nationality ofthe parties nor the civil or commercial character ofthe parties or ofthe contract is to be taken into consideration in determining the application of this Convention. CISG does not define exactly the concept ofcontractsfortheinternationalsaleof goods. 07/10/2013 Lecturer: Nguyễn Thị Minh Hà 8 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODS 1.2.2. Vietnam Law 1.2.2.1. Temporary Regulation on concluding foreign trade contracts (Regulation 4794/TN-XNK, issued by the Ministry of Trade on 31/7/1991) - Foreign trade contracts are those with international elements; - International elements: Traders are of different nationalities; Goods are transported across borders; Payment currency is foreign to at least one party. Nationality is one ofthe most important elements. 07/10/2013 Lecturer: Nguyễn Thị Minh Hà 9 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODS 1.2.2.2. Commercial Law 1997 Contractsfor purchase and saleofgoods with foreign traders are contracts entered into between a Vietnamese trader and a foreign trader What is the crucial element? A contract entered into between a Chinese trader and a Vietnamese one, both based in Vietnam? A contract entered between two Vietnamese traders based in different countries? 07/10/2013 Lecturer: Nguyễn Thị Minh Hà 10 [...]... according to which the Seller (the Exporter) is obliged to deliver goods, and transfer the ownership thereof to the Buyer (the Importer); the Buyer is obliged to receive ofthegoods and the ownership thereof, and arrange payment 07/10/20 13 Lecturer: Nguyễn Thị Minh Hà 13 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODS 2 Major features ofcontractsfortheinternationalsaleofgoods 2.1 General... relations involving foreign elements) or other Laws; Real estate sold to foreigners? What is on-spot import/export? Your opinion on the listing of forms ofinternational purchase and saleof goods? 07/10/20 13 Lecturer: Nguyễn Thị Minh Hà 12 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODSContractsfortheinternationalsaleofgoods is the agreement between parties whose places of business are...OVERVIEW ON CONTRACTS FOR THEINTERNATIONAL SALE OFGOODS 1.2.2 .3 Commercial Law 2005 Chapter II, Article 27.1.: International purchase and saleofgoods shall be conducted in form of export, import, temporary import for re-export, temporary export for re-import and transfer through border-gates Legal definitions of forms ofinternationalsaleof goods: Article 28 -30 , Commercial Law 2005;... DRAFTING CONTRACTS FOR THEINTERNATIONAL SALE OFGOODS b Name ofgoods + place of origin c Name ofgoods + manufacture’s name d Name ofgoods + brand name e Name ofgoods + major specifications E.g.: 14-inch TV; 29-seat bus f Name ofgoods + main use E.g.: Cotton for medical use g Name ofgoods + HS code E.g: Automobile air conditioner 8415.20 To specify the goods, a-g are often combined 07/10/20 13 Lecturer:... DRAFTING CONTRACTSFORTHEINTERNATIONALSALEOFGOODS3.3 .3 Theoretical weight M (mass) = D (density) x V (volume) 3. 3.4 Commercial weight 100 + W0 G0 = G1 x 100 + W1 - Goods whose mass is sensitive to moisture change - G0 : Commercial weight W0: Standard moisture - G1 : Actual weight W1: Actual moisture 07/10/20 13 Lecturer: Nguyễn Thị Minh Hà 30 DRAFTING CONTRACTS FOR THEINTERNATIONAL SALE OFGOODS3. 4... 07/10/20 13 Lecturer: Nguyễn Thị Minh Hà 17 OVERVIEW ON CONTRACTS FOR THEINTERNATIONAL SALE OFGOODS 4 Content ofContracts for theinternational sale of goods: 4.1 Preamble: - Contract date and number; - Date and place of signing contract; - Parties’ information; - Legal basis ofthe contract (if necessary); - Definition of terms (if necessary) 07/10/20 13 Lecturer: Nguyễn Thị Minh Hà 18 OVERVIEW ON CONTRACTS. .. OFGOODS e As per technical documents f As per specifications ofgoods g As per volumetric weight ofgoods h As per general customary criteria E.g.: FAQ, GAQ, GMQ i As per content of essential components j As per ratio of products form k As per brand ofgoods l As per description ofgoods 07/10/20 13 Lecturer: Nguyễn Thị Minh Hà 24 DRAFTING CONTRACTSFORTHEINTERNATIONALSALEOFGOODS 2.2 Content of. .. 2005; Commercial Law 2005 and nationality? 07/10/20 13 Lecturer: Nguyễn Thị Minh Hà 11 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODS - The movement ofgoods across national and/or customs borders - Contracts without the movement ofgoods across national and/or customs borders will not be considered contractsfortheinternationalsaleofgoods ; - Commercial Law 2005 may not govern all cases... State/customs border; Payment: foreign currency to at least 1 Party; Various sources of governing law: National law International will Commercial practice Legal precedent 07/10/20 13 Lecturer: Nguyễn Thị Minh Hà 15 OVERVIEW ON CONTRACTSFORTHEINTERNATIONALSALEOFGOODS3 Legal validity ofcontractsfortheinternationalsaleofgoods - Subjects: legal; - Objects: legal; - Form: legal + CISG: oral, in... DRAFTING CONTRACTSFORTHEINTERNATIONALSALEOFGOODS 2 Quality - One ofthe most important terms; - Clearly define main characteristics ofthe goods; - Require wide knowledge on machandizing 2.1 Methods to denote quality: a As per sample b As it is (tale quale) c As inspected and approved d As per standard or category 07/10/20 13 Lecturer: Nguyễn Thị Minh Hà 23 DRAFTING CONTRACTSFORTHEINTERNATIONALSALE . Contracts for the international sale of goods Contracts for the international sale of goods = Contracts for purchase & sale of goods + international elements. 1.2.1. International Law. forms of international purchase and sale of goods? 07/10/20 13 Lecturer: Nguyễn Thị Minh Hà 12 OVERVIEW ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS Contracts for the international sale. land. 07/10/20 13 Lecturer: Nguyễn Thị Minh Hà 4 OVERVIEW ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS Contracts for purchase and sale of goods: Contracts for purchase and sale of goods