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Đề-các-lớp-khác
Đề-các-lớp-khác
1.1. PLEASE GIVE THE YES OR NO ANSWER WITH BRIEF EXPLANATION AND
PRECISE LEGAL BASIS REFERENCE(S) (3 MARKS)
a. The Convention on Contracts For The International Sale Of Goods (CISG) is applicable
to contracts for internationally - provided services and works.
No. Legal basis: Art 1.1, Art 3.2 CISG
Art 1.1: This Convention applies to contracts of sale of goods between parties
Art 3.2 CISG: This Convention does not apply to contracts in which the preponderant part of the
obligations of the party who furnishes the goods consists in the supply of labour or other
services.
b. The UNIDROIT can be applied as a gap - filling tool for any issue which is presscribed
but not directly resolved within the CISG.
No. Legal basis: Art 7.2
Questions concerning matters governed by this Convention which are not expressly settled in it
are to be settled in conformity with the general principles on which it is based or, in the absence
of such principles, in conformity with the law applicable by virtue of the rules of private
international law.
Những vấn đề không được quy định trong CISG sẽ được giải quyết bằng các general principles
on which the Convention based, nếu không có các quy tắc chung mới áp dụng UNIDROIT.
Under Art. 7 (2) CISG, gaps in the Convention are in the first instance filled with the
Convention's general principles. Only if it is impossible to identify a general principle, one can
resort to the applicable UNIDROIT national law via international private law.
c. Article 79 of the CISG excludes any previously - agreed exemption clase made by the
party.
No. Legal basis: Art 79 CISG
Commercial sales contracts subject to the CISG often include contractual force majeure or
hardship clauses. By including such clauses, parties can derogate from Article 79 CISG and
agree on both broader and stricter terms and consequences for force majeure incidents.
Contractual guarantees also may constrain the degree to which parties can rely on Article 79.
The scope of contract terms related to force majeure will be interpreted under the general
standard of Article 8 CISG, first relying on the parties true intent, where the other party knew or
could not have been unaware of what that intent was or, if this cannot be determined, the
understanding of a reasonable person of the same kind as the other party in the same
circumstances.
1.2. YOU CAN CHOOSE TO ANSWER ONLY ONE (01) OF THE FOLLOWING
TOPICS: (2 MARKS)
Please briefly make the comparison between short - term and long - term international sale of
goods contracts. To the extent of your knowledge, please explain how can such understanding
about short - term and long - term international sale of goods contracts assist you for your future
job as a legal counsel for international commercial transaction.
a. Please specify which international legal source(s) could be applied to govern the
Contract, and in which odder (givent that, at the time the contract was concluded, France
and the USA are Member States of the CISG). (03 marks)
Application: "Choice of law”
(thường nó sẽ đề cập 2 bên là thành viên của CISG )
The parties are Contracting States when the contract / agreement was concluded.
(1) Firstly, must consicler what is this contract ?. This contract is international contract of sale of
goods because of 2 reasons :
+ The parties of this contract are in different states. So, this is international contract.
+ The object of this contract is good. This good - " textile " is not good according to Art. 2
of CISG and is also not services or works which are Regulated in Art 3.2 CTSG. Therefore, this
is contract of sale of goods.
(2) Secondly, must consider whether the parties have choice of law in their contract to apply or
not.
+ The parties choose to apply the third Domestic law, at the same time, they must explicitly
specify that CISG is inapplicable. In this case, legal source is the third Domestic law.
+ The parties choose to apply one of party's Domestic law. In this case, CISG can be applied
according to Art 1.1. a of CISG because the parties are CISG members. However, if the parties
decline application of CISG explicitly in the contract, legal source applied is Domestic law
which the parties choose.
+ If the parties directly choose to apply CISG, CISG will be applied in this case.
b. Please advise whether Addams Co. is exempted from its liability for undue payment,
and on which legal ground (02 marks)
Exemption Clause :. the failure to that.
A party is not liable for the failure to perform any obligations if the party prove that:
(1) Firstly, according to the parties's exemption clause; A will have a exemption if A must prove
that his/her undue payment is due to changes of law (one of exemptive conditions ). Further
more, when the parties concluded the contract, the French had not established ever a strict
national policy to limit payment for foreign transactions, A didn't know this change and A
couldn't control this norm. So that, there a grounds to say that A maybe exempted liability for
undue payments,
(2) Secondly, according to Art. 79 (4) of CISG, the parties must give notice about reasons and
issues why this party can not perform his/her obligations within a reasonable time. However,
according to the parties ' agreement, the parties did not require about this condition. So that, if
the party who has failure did not give a notice with other party, A can be also exempted liability
in this above analysis .
changes of policy of a State usually are puplished widely. So B may be also know this change
and reasons why A didn't perform a his / her obligation for undue payment.
c. Please give your opinion about the forementioned liability exemption clause in the
centract between the parties (whether it is appropriate to protect the legitimate rights of
the parties ; it it is not, please revise the clause) (02 marks).
I think force majeure clauses of this agreement is not appropriate to protect the legitimate rights
of the parties. Because this clause only provide some circumstances which the parties may be
exempted liability. However, this clause need more regulation about notice obligation of the
parties when the force majeure occurs. That will make this clause is strected. This class is
revised:
None set a Tour uca hirs “Force majeure are the events that occur in an unforeseen manner and
cannot be overcome despite any necessary measures and the capacity, including but not limited
to war,… etc. Add [Art. 70 (4)]”