CLC42A

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.

II. DISPUTE RESOLUTION (5 MARKS) (*) ANY PRECEDENT CISG CASES

REFERRED WILL GAIN 0.25 MARK EACH AS BONUS (NO MORE THAN 01 MARK
IN TOTAL).
The buyer BCC is a US corporate tile seller transacted with the seller D'Agostino, an Italian
corporation that manufactures tiles in 1st August 2019 to purchase ceramic tiles the seller, based
on samples exhibited in a fair two months ago. The buyer's representative Monzon, who did not
speak Italian, communicated with the seller's representative Gianni through a translator. The
parties apparently arrived at an oral agreement on the crucial terms of prize, quality quantity,
delivery, and payment. They then recorded these terms on one of D'Agostino ' standard pre -
printed order forms. Monzon signed the contract on BCC's behalf. Then this commercial dispute
erupted as due to the COVID - 19 pandemic, the Italian government established a strict national
lockdown that prevented the seller from performing his obligation in time as agreed in the
contract. MCC brought suit against D'Agostino in a US federal court, claiming that the defendant
manufacturer breached the contract by failing to fulfill his delivery obligation within the agreed
time.
a. The parties disputed over the exemption clause which, asserted by the buyer, to be "
significantly different " from the originally oral - negotiated terms in the negotiation course
between the parties, and should be recorded as the following :
" Force majeure are the events that occur in an unforeseen manner and cannot be overcome
despite any necessary measures and the capacity, including war, terrorism, strikes, strikes, fires,
floods, lightning, fire, earthquakes, whirlwind, storms, changes of laws, etc. "
Meanwhile, the recorded contractual clause appears follows :
" 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, terrorism,
strikes, strikes, fires, floods, lightning, fire, earthquakes, whirlwind, storms, changes of laws,
etc."
Please specify which article (s) in the CISG or the approach (es) taken in the CISG precedent
cases can help the parties with their contractual clause conflict and how you use it to explain the
contract.
b. Please give your opinion about the forementioned liability exemption clause in the contract
between the BCC and the D'Agostino (whether it is appropriate to protect the legitimate rights of
the parties ; if it is not, please revise the clause)
CLCQTL43B
Section 1 (03 marks):
Please give the yes or no answer with brief explanation and precise legal basis reference (s):
a. Domestic laws can be applied as a gap - filling tool for any issue which is presscribed but
not directly resolved within the CISG.
No. If the matter is governed by the Convention but not expressly settled in it in the absence of a
general principle to fill the gap the issue is to be settled in conformity with the law applicable by
virtue of the rules of international private law (of the forum). Following the preamble's objective
as set out above, it is an undisputed fact that recourse to domestic law endangers the uniform
application of the Convention. As such, recourse to domestic law via international private law
rules is only the last resort and judges should always consider without pushing the Convention's
scope of application too tar whether or not the issue can be solved by liberally interpreting a
provision of the Convention or by applying it in an analogous way.
b. Article 35 of the CISG excludes any previously - agreed goods conformity clause made
by the parties.
No. Legal basis: Art 35.1
Article 35: (1) The seller must deliver goods which are of the quantity, quality and description
required by the contract and which are contained or packaged in the manner required by the
contract.
Accordingly. Article 35 (1) CISG provides that the seller must deliver goods which are of the
quantity, quality and description required by the contract and which are contained or packaged in
the manner required by the contract. Thus the decisive factor for determining whether the goods
conform to the contract is the contractual description of the goods. The characteristics are
therefore not based on objective standards of quality but rather on the denomination and
description of the required quality in the contract.
c. Matters governed by the CISG which are not expressly settled in it are excluded from the
application of this Convention.
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.
Malters not governed at all by the Convention are resolved by direct recourse to domestic law as
determined by international private law rules. This basic guideline seems to be easy to
understand; however, there are quite a number of difficulties that arise when applying Art. 7 (2)
CISG.
Section 2 (07 marks):
On 1st August 2019, the buyer Addams Co. is a French textile retailer transacted with the seller
Sinclair Inc., an US corporation that manufactures textile, in order to purchase textile from the
seller based on samples exhibited in a fair two months ago. The buyer's representative
Wednesday, who did not speak English, communicated with the seller's representative Enid
through a translator. The parties apparently arrived at an oral agreement on the crucial terms of
price in US Dollar. quality, quantity, delivery, and payment. They then recorded these terms on
one of Addams Co.'s standard pre - printed order forms in French. Enid signed the contract on
Sinclair Inc.'s behalf. Then this commercial dispute erupted as due to the flcancial crisis from the
post - COVID - 19 pandemic, the French goverment established a strict national policy to limit
payment for foreign transactions within 03 months, which prevented the buyer from performing
his obligation in time as agreed in the contract. Sinclair Inc. brought suit against Addams Co. in
an US federal court, claiming that the defendant breached the contract by failing to fulfill his
obligation within the agreed time.
The parties disputed over the exemption clause which appears as follows:
" Force majeure are the events that occur in an unforeseen manner and cannot be overcome
despite any necessary measures and the capacity, such as war, terrorism, strikes, strikes, fires,
floods, lightning, fire, earthquakes, whirlwind, storms, changes of laws, etc. "

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)]”