: :

1. ??? ??????? ????:?????? ??????????? ??????? ??????? ??????????? ????:????????

2. ????????????? ????????? ????????? ?????????????

3. §1 Incoterms ??Concept of Incoterms Incoterms is an acronym for inter-national trade terms, provides rules or determining the obligation of both seller and buyer when different trade terms are

4. used. They state what acts seller must do to deliver, What acts buyer must do to accommodate delivery, what costs each party must bear,and at what point in the delivery process the risk of loss passes from seller to buyer. (?)Delivery Terms (?)Price Terms

5. ??Contents of Incoterms 2000 (?)E Terms——EXW(Ex Works) Under this term, the seller need only make the goods available at its factory (or mill, farm, ware-house, or other place of business) and present the buyer with an invoice for payment. The buyer must arrange all transportation

6. and bear all risks and expenses of the journey from that point. The buyer would also have to clear the goods for export by obtaining export licenses from his government, this term is most often used when the buyer will pick up the goods by truck or rail.

7. 1?????(Departure Contract) 2?????????????? 3?????(physical delivery)

8. (?)F Terms 1?FCA-Free Carrier 2?FAS--Free alongside Ship 3?FOB--Free on Board Generally, under F terms the buyer pays the cost of the main international carriage. The seller places the goods in the hands

9. of a carrier named by the buyer and at a time and place named in the contract. The risk of loss passes from seller to buyer at that time. The buyer arranges the transportation and pay all freight and add that amount to the invoice price already quoted. F terms are often used when the buyer has contracted

10. for a complete shipload of materials or commodities and thus has reason to assume the responsibility for arrang-ing carriage.F terms may also be used because the buyer feels that it can obtain better freight rates than the seller.

11. Here, for the contract price, the seller bears the costs and assumes all risks of getting the goods from its factory to the carrier or terminal . The seller then has the responsibility to obtain any government export licenses that are required.

12. 1??? (1)????(shipment contract) ????(symbolic delivery) (2)????:?????????????? / ???????????

13. ????:????????? 2??? (1)?????? FCA:?????? FAS? FOB:??????????

14. (2)?????????????? FCA:???????? FAS:???????? FOB:??????

15. (?)C Terms 1?CPT-Carriage Paid to 2? CIP--Carriage & Insurance Paid to 3?CFR--Cost & Freight 4?CIF—Cost?Insurance & Freight Under CFR terms the seller should contract for transport and pay freight

16. charges to the named port of destina-tion ; arrange for loading goods on board ship usually of seller’s choice, and pay costs of loading; obtain export license; notify buyer of shipment, etc. The buyer should purchase document of title and take delivery from ocean

17. carrier; pay import duties, etc. If the seller intends to arrange ocean trans-portation, but will be delivering the goods to a road or rail carrier, inland waterway, or to a multimodal ter-minal operator for transit to the sea- port, the seller may wish to quote CPT.

18. CIP terms are the same as under CPT, with the added requirement that the seller procure insurance to cover the buyer’s risk of loss.

19. 1??? (1)???? / ???? (2)????:????????? ?? / ??????? ????:?????????

20. 2??? (1)????????????? CPT? CIP? FCA?? CFR? CIF ?FOB?? (2)????

21. CPT? CFR ????? CIP ?CIF????? (3)?????? CPT?CIP:?????? CFR?CIF:??????

22. (?)D Terms 1? DAF——Delivered at Frontier ???? 2?DES——Delivered ex Ship ??????? 3?DEQ——Delivered ex Quay ???????

23. 4?DDU——Delivered duty unpaid ????? 5?DDP——Delivered duty paid ????? If the seller is willing to enter into a destination contract, then he must be willing to accept far greater responsibi-

24. lity than under any other terms. For the price stated in the contract, the seller must not only deliver the goods at the port of destina-tion, but bear the risk of loss throughout the journey.

25. 1??? (1)????(Destination Con-tract)/ ???? (2)????:?????????????? / ???????????

26. 2??? (1)????????????? (2)????????? DDP?????;???????? (3)?????? DAF?DDU?DDP:??????; DES?DEQ:???????

27. §2 Introduction of the International  sale of Goods ??Concept of International Sale of Contracts (?)The contract is for the commer-cial sale of goods (?)It is between parties whose places of business are in different countries ( nationality or citizenship of

28. individuals is not a determining factor) (?)The object is tangible movables ??Contents of Convention on Contracts for the International Sale of Goods——CISG (?)Sphere of Application

29. (?)Formation of the Contract (?)Sale of Goods (?)Final Provisions ??Sales Excluded The following types of sales have been specifically excluded from the conven-tion:

30. (?)Consumer goods sold for personal, family, or household use (?)Goods bought at auction (?)Stocks, securities, negotiable instruments, or money (?)Ships, vessels, or aircraft (?)Electricity (?)Assembly contracts for the supply

31. of goods to be manufactured or pro-duced wherein the buyer provides a “substantial part of the material nece-ssary for such manufacture or produc-tion” (?)Contracts that are in “prepond-erant part(????) “ for the supply of labor or other services

32. (?)Liability of the seller for death or personal injury caused by the goods (?)Contracts where the parties specifically agree to “opt out “ of the convention or where they choose to be bound by some other law

33. Article 6 of the CISG states, “The parties may exclude the application of this Convention or …derogate from(????) or vary the effect of any its provisions.”

34. ?????????? (?)??????? (?)??????? 1?????? ?????????——???

35. 2????? ????????——???? ?????? ? ???? ? ?? ????????????????????????——??????

36. §3 Formation of International Sale of Contracts ??offer(??) (?)Requirements of Offer 1?An offer must be addressed to one or more specific persons. (1) In Germany, advertisements addressed to the public in general are

37. mere invitations to deal. (2) In the system of common law , recognize that if an advertisement is specific enough in describing the goods, their quantity, and price, it may be considered an offer.

38. 2?An offer must be sufficiently definite An offer is considered sufficienly definite if it (1)indicates or describes the goods; (2)expressly or implicitly specifies the quantity, and (3)express-ly or implicitly specifies the price for

39. the goods. However, one should not think that the presence of these three terms always indicate a contract . In many international contracts involving a great deal of money, no firm would make a commitment without reaching an agreement on many

40. other terms, such as methods of pay-ment, delivery dates, quality standards, etc. In this case, the court will try to find whether the parties had the intention to be bound, if the court finds the parties did have the intention to be bound, it can supply many of the missing terms

41. by looking at the past dealings of the parties, and at customs in the trade or industry, or by referring to the appli-cable provisions of the CISG. CISG seems similar to those of US state law: leave nothing open negotia-

42. tion . 3?An offer must indicates the intention of the offeror to be bound in case of acceptance. (1)Firm Offer (2)Invitation of offer

43. (?)Time of Offer An offer becomes valid when it arrives at the offeree

44. (?)Withdrawal and Revocation of Offer 1?Withdrawal (1) The offeror can withdraw the offer at any time before it arrives at the offeree (2)Requirement: An offer,even if it is

45. irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. 2?Revocation (1)Under Germany law an offer is binding on the offeror, while under

46. French law the offeror can revoke the offer before the acceptance of the offeree. (2)Under common law, an offer may be revoked at any time before accept-ance., due to the lack of consideration.

47. (3) CISG: ?Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dis-patched an acceptance. ? However, an offer cannot be revoked: a) if it indicates, whether

48. by stating a fixed time for acceptance or otherwise, that it is irrevocable; or b) if it was reasonable for the offeree to rely on the offer as being irrevo-cable and the offeree has acted in reliance on the offer.

49. (?)Lapse of offer 1 ?By non-acceptance within the time prescribed for acceptance by the offeror 2?When no time for acceptance is pres-cribed , by non-acceptance within a rea-sonable time.What is a reasonable time

50. depends on the nature of the contract and the circumstances of the case. 3?An offer may be rejected expressly or by implication. 4? the death either of the offeror or the offeree terminates an offer.

51. ??acceptance(??) (?)Requirements of acceptance 1?An acceptance must be made by the offeree. 2?An acceptance must be made within the period of validity.

52. (1) Late acceptance is a new offer only. (2) A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect.

53. (3) If a letter or other writing contain-ing a late acceptance shows that it has been sent in such circumstance that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay,

54. the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect. 3?An acceptance must match the terms of the offer exactly and unequi-vocally. Otherwise it is considered a

55. counteroffer and thus a rejection of the original offer. CISG: (1)A reply to an offer which purports to be an acceptance but contains addi- tions, limitations or other modifica-

56. tions is a rejection of the offer and constitutes a counteroffer. (2)However, a reply to an offer which purports to be an acceptance but con-tains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance,

57. unless the offeror, without under delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.

58. (3) Additional or different terms relat-ing, among other things, to the price, payment, quality and quantity of the goods, place and time of the delivery, extent of one party’s liability to the other or the settlement of disputes are considered to alter the terms of the

59. offer materially. (?)The method of the acceptance 1?statement includes in writing or orally 2?conduct by virtue of the offer or as a result of

60. practices which the parties have establi-shed between themselves or of usage, the offeree may indicate assent by perform-ing an act, such as one relating to the dispatch of the goods or payment of the price.

61. 3?Silence or inactivity does not in itself amount to acceptance. 4 ?The method of acceptance must confirm with the offeror’s require-ments. If the offeror prescribes a particular manner of acceptance as the only manner of acceptance, the offeree

62. must comply. If , however, the offeror stipulates a particular method of acceptance but does not stipulate it as the only method of acceptance, the rule is that the offeree may choose any method of acceptance, provided it is just as advantageous to the offeror as

63. the nominated method. If the offer is silent as to the method of acceptance, the offeree may do what-ever is appropriate in the circumstan-ces. For example, if the offer is made by fax this will usually imply that a fairly quick response is required. Thus,

64. the offeree could choose to telephone the acceptance, fax it, send a letter by courier, or even pose it. (?)Time of Acceptance 1?Common Law: Mail-box (postal)rule A contract is formed when the accept-ance is dispatched by the offeree. In

65. the case of an acceptance by letter, the time of dispatch is the time the letter is put into the hands of the postal autho-rities. In such cases, acceptance occurs when the letter is posted, even if the letter is lost in the post, Of course, the letter must be properly addressed and stamped.

66. The postal rule has been extended to public telegraph and public telex. However, the rule does not apply where the mode of communication can be said to be instantaneous.Nor will it apply to communication by email or the internet.

67. What is an instantaneous mode of communication to which the postal rule will not apply? Face to face con-versations are clearly instantaneous. So are telephone conversations and communication by fax.

68. 2?Civil Law: received the letter of acceptance rule (the receipt theory) The difference between the two relates to the allocation of risk when an acceptance is lost or delayed. For example, a buyer sends a seller an acceptance through the mails and the

69. acceptance is lost. If the dispatch theory were applied, a contract would have come into existence at the time the acceptance was mailed, and the seller would be required to perform. Under the receipt rule, however, no contract would exist, and a perception

70. that it more fairly allocates responsibi-lity for loss or delay. 3?CISG The CISG opted for the receipt theory used in civil law . (1) An acceptance of an offer becomes

71. effective at the moment the indication of assent reaches the offeror. (2) Without notice to the offeror, the acceptance is effective at the moment the act is performed. (?)Withdrawal of acceptance By virtue of the CISG and civil law,

72. an acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the ac-ceptance would have become effective.

73. §4 Obligations of the Seller and the buyer ??Seller’s Obligations Under the CISG a seller is required to (1) deliver the goods, (2) hand over any documents relating to them, and (3)ensure that the goods conform with the contract. (?)Delivery of the Goods

74. 1? Place for delivery If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: ?if the contract of sale involves carriage of the goods---in handing the goods over to the first carrier for transmission to the

75. buyer; ? if, in case 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

76. contract the parties knew that the goods were at, or were to be manufac-tured or produced at, a particular place--- in placing the goods at the buyer’s disposal at that place; ?in other cases---in placing the goods at the buyer’s disposal at the place

77. where the seller had his place of busi-ness at the time of the conclusion of the contract. 2? Time for delivery If a date is fixed by or determinable from the contract, the seller is to deli-very the goods on that date, or if a

78. period of time is fixed by or determin-able from the contract, at any time within that period unless circumstan-ces indicate that the buyer is to choose a date; or in any other case, within a reasonable time after the conclusion of the contract.

79. (?)The Turning Over of Documents If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the from required by the contract. If the seller has handed over documents before that time, he may,

80. up to that time, cure any lack of con-formity in the documents, if the exer-cise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim dama-ges as provided for in this Convention.

81. (?)The seller’s Assurance of the Quality of Goods CISG: 1?The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged

82. in the manner required by the contract. 2? Except where the parties have agreed otherwise, the goods do not conform with the contract unless they: ?are fit for the purpose for which goods of the same description would ordi- narily be used; (merchantable quality)

83. ? are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, expect where the cir-cumstances show that the buyer did not rely, or that it was unreasonable for him to rely on the seller’s skill and

84. judgement; ? possess the qualities of goods which the seller has held out to the buyer as a sample or model; ?are contained or packaged in the manner usual for such goods or, where

85. there is no such manner, in a manner adequate to preserve and protect the goods. 3?The seller is not liable under subparagraphs?to ?of the preceding paragraph for any lack of conformity of the goods if at the time of the con-

86. clusion of the contract the buyer knew or could not have been unaware of such lack of conformity. 4?The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes

87. to the buyer, even through the lack of conformity becomes apparent only after that time. 5?The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a

88. breach of any of his obligations, in-cluding a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or charac-teristics.

89. (?)The Seller’s Assurance of Ownership of the Goods The seller shall have the obligation of implied undertaking : the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance not

90. disclosed or known to the buyer before the contract is made, and the buyer will enjoy quiet possession of the goods. The seller shall not exclude the above implied undertaking. CISG : 1?The seller must deliver goods which

91. are from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim. 2?The Seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property, or which at

92. the time of the conclusion of the contract the seller knew or could not have been unaware, provided that the right or claim is based on industrial property or other intellectual property. The seller’s obliga-tion is governed: (1) under the law of the State where the goods will be resold or otherwise used,

93. if it was contemplated (??)by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or (2)in any other case, under the law of the State where the buyer has his place of business.

94. The obligation of the seller under the preceding paragraph does not extend to cases where: ?at the time of the con-clusion of the contract the buyer knew or could not have been unaware of the right or claim ; or ?the right or claim results from the seller’s compliance with

95. technical drawings, designs, formulas or other such specifications furnished by the buyer. ??Buyer’s Obligations The buyer has two primary obligations under CISG in a sale contract: to pay the price, and to take delivery of the

96. goods. The former duty is the more important of the two. (?) Payment of the Price(CISG) 1? the buyer shall comply with steps or formalities to enable payment to be made; determined the price; and refers to the price generally charged at the

97. time of the conclusion of the contract. The price is fixed by the net weight. 2? If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: (1) at the seller’s place of business; or (2) if the payment is to be made against the

98. handing –over of the goods or of documents, at the place where the handing-over takes place. The seller must bear any increase in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the

99. contract. 3?The buyer is not bound to pay the price until has had an opportunity to examine the goods, unless the proce-dures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity.

100. (?)Taking Delivery (CISG) 1?in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery. 2?in taking over the goods (?)preservation of the goods

101. §5 Remedies for Breach of Contract ??Definition of Breach of Contract A breach of contract is committed when a party without lawful excuse fails or refuses to perform what is due to him under the contract, or per-forms defectively or incapacitates

102. himself from performing. It should be noted that in all cases the failure to provide the promised perfor-mance must be “without lawful excuse”. Thus, where the contract has been frustrated there is no liability for breach of contract because both parties

103. have been provided with a “lawful excuse” for their non-performance. ??General Principles of Remedies The objective of a variety of remedies is to put the injured person in the same position as if the contract has been performed.

104. (?)The Doctrine of Compensation 1?The doctrine of expectation interest (1)The doctrine means that both parties at the time of the conclusion of a contract have expectation interest over the contract, and the injured party is entitled to his expectation interest

105. lost by the party in breach. Therefore, courts ordinarily protect the expecta-tion that the injured party had when making the contract by attempting to put the injured party in as good a po-sition as that party would have been in had the contract been performed, that

106. is, had there been no breach. The interest measured in this way is called expectation interest and is said to give the injured party the “benefit of the bargain”. (????)

107. 2?the doctrine of reliance interest This means that when the defendant’s promise to perform his contractual obligations, the claimant has acted to his detriment in entering into the con-tract and the award of damages should compensate the plaintiff. The aim here

108. is to put the claimant in as good a position as he was in before the defendant’s promise was made.

109. 3?The doctrine of restitution interest A claimant who claims the protection of his restitution interest does not wish to be compensated for the loss which he has suffered; rather , he wishes to deprive the defendant of a gain which he has made at the claimant’ s expense

110. (?)The Doctrine of Limitations on Damages A person may not recover for all loses flowing from a breach. There must be limitations on damages. 1?Non-breaching party has the duty to mitigate damages. This “duty to

111. mitigate” is a commonsense require-ment that forbids persons from sitting idly back and allowing losses to pile up. 2?Damages must be established with a reasonable degree .

112. 3?Damages must be either foresee-able to the breaching party or would naturally flow from the breach. ??Buyer’s Remedies A seller may breach a contract in a number of different ways: the most

113. common are (1) failing to make an agreed delivery , (2) delivering goods that do not conform to the contract, and (3) indicating an intention not to fulfill the obligations under the con-tract.

114. Under CISG, the remedies that are unique to the buyer are (1)to compel specific performance, (2)to avoid the contract for fundamental breach or nondelivery, (3) to reduce the price, (4)to refuse early delivery , and (5) to refuse excess quantities.

115. (?)Specific performance This is an order by the court requiring one party to carry out his or her con-tractual obligations. 1?Common Law and Civil Law The usual remedy in civil law coun-tries is that of specific performance,

116. while the usual legal remedy in con-tract cases in common law countries is an award for money damages . There-fore , courts in the US and other common law countries hesitate to require parties to specifically perform. It is considered a harsh remedy to be used only where money damages

117. cannot be calculated or are inadequate, which may occur when the subject matter of the contract is unique. But in civil law countries, the use of specific per-formance is not only more common, it is preferred.

118. 2?CISG (1)Article 28 : If one party is entitled to require performance of any obliga-tion by the other party , a court is not bound to enter a judgement for speci-fic performance unless the court

119. would do so under its own law in respect of similar contracts of sale not governed by this convention. (2) Article46, a court may grant specific performance only if the following conditions are met: ?the buyer had not resorted to

120. another remedy, such as avoidance or price reduction; ? the seller had failed to deliver or , in the case of nonconforming goods, the nonconformity was so serious that it constituted a fundamental breach; ? the buyer gave timely notice to the

121. seller that the goods were noncon-forming; and ? the buyer had made a timely re-quest that the seller provide substitute goods. 3?China Contract Law Article 110 of China Contract

122. (?)Termination( Avoidance) 1?Common Law (1) English Law: ?Only breaches of a condition entitle the innocent party to terminate. A

123. condition is a term that goes to the essence or heart of the contract. ?Breaches of warranty attract dama-ges only. A subsidiary/ collateral term is often warranty . ?Intermediate terms may be treated

124. as either a condition or a warranty , depending on the seriousness of the breach. (2 ) American Law Material breach: termination Minor breach: damage

125. 2?Civil Law Under civil law, if the breach is material or fundamental , the innocent party may cancel the contract . 3?CISG Under the CISG, a buyer may avoid a contract if either(1) the seller commits a

126. fundamental breach of (2) the buyer gives the seller a Nachfrist notice and the seller rejects it or does not perform within the period it specifies. A buyer’s notice is the fixing of an addi-tional period of time of reasonable length for performance by the seller of his obligations.

127. Fundamental breach: If a breach of contract results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstance would not have foreseen such a result.

128. (?)Price Reduction (?)Refusing Early Delivery and Excess Quantity

129. ??Seller’s Remedies The remedies that are unique to the seller are (1)to compel specific perfor-mance, (2) to avoid the contract for a fundamental breach or failure to cure a defect, and (3) to obtain missing speci-

130. fications. Clearly , the seller’s reme-dies are rather similar to those of the buyer. ??Remedies Available to Buyers and Sellers The remedies available to both buyers and sellers are (1) suspension of per-

131. formance, (2) avoidance in anticipa-tion of a fundamental breach, (3)avoi-dance of an installment contract, (4) avoidance, and (5)damages. ??Anticipatory Breach of Contract (?)Anticipatory Breach in Common Law

132. (?)CISG Articles 71 and 72 of the CISG stipu-late the requirements of anticipatory breach and remedies.

133. ??liquidated damages (?)Common Law If the sum stated in the clause is not a genuine pre-estimate of loss, it is a “penalty clause” and is un-enforceable. The aim of such a clause is to punish the party in breach and the courts held that such an aim is imper- missible.

134. (?)Civil Law Under French law, the stipulation of liquidated damages, as a result of free-dom of contract, is valid and enforceable. Courts in principle cannot adjust such a

135. stipulation by the parties to a contract. German law provide that liquidated damages even if characterized by punitive role is valid and enforceable. If the innocent party suffers a loss greater than the liquidated damages stipulated, he is entitled to not only the

136. liquidated damages, but also the sum exceeded. (?)China Contract Law Article 114 ??Excuses for Non-performance (?)Common Law

137. 1?Impossible of Performance (1) the death of one of the parties; (2)the destruction of the specific sub-ject matter of the contract; (3) when performance of the contract has been rendered illegal or made im-

138. possible due to the fault of the other party. 2?Supervening Illegality 3?Frustration of Purpose 4?Commercial Impracticability

139. (?)CISG In order to maintain an impartial po-sition, the CISG uses the term “impe-diments beyond Control”. (?)Force Majeure Clauses The term force majeure means

140. “superior force”. A force majeure clause in a contract is an exculpatory clause, it excuses a party from failing to perform on the occurrence of an event specified in the clause itself----a force majeure.These

141. usually list, specifically, those events that will excuse nonperformance. These events might include war, blockades, fire, acts of governments, inability to obtain export licenses, acts of God, acts of public enemies, failure of transportation, quarantine

142. restrictions, strikes and others. In practice, most force majeure clauses do not excuse a party’s nonperfor-mance entirely, but only suspend it for the duration of the majeure.

143. §6 Passing of Risk and Property ??Passing of Risk In some countries, including the United Kingdom, the party who bears the risk of loss is the party who has “title” to the goods---the party who owns them at that moment.

144. However, since the document of title does not move physically with the goods, a determination of who owned the goods at the exact time of their destruction is often difficult. This “title “method was employed in the United States until the adoption of the UCC.

145. The CISG contains provisions that allocate the risk of loss in Articles 66-70. CISG gives up the idea of the United Kingdom that the one who has title of the goods bears the risk, and determines the passing of risk through in principle time of delivery of the goods.

146. (?)CISG Allows the Parties to Decide the Time of Passing of Risk Clearly, the agreement of both parties is prior to the CISG, so the CISG provisions apply only if the parties do not specify by agreement when the risk shifts from the seller to the buyer.

147. (?)The Effect of Passing of Risk Article 66 states that loss of or damage to the goods after the risk has passed to the buyer does not discharge him from his obligation to pay the price, unless the loss or damage is due to an act or omi-ssion (???)of the seller.

148. Therefore, after the risk has already passed from the seller to the buyer, the buyer should be responsible for the loss and pay the price even if the goods are lost.

149. (?)Where the Goods Need to be Moved Under Article 67, if the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of

150. sale. If the seller is bound to hand the goods are handed over to the carrier at that place. The fact that the seller is au-thorized to retain documents controlling the disposition of the goods does not affect the passage of the risk. Also, the risk does not pass to the buyer until the goods are clearly identifi-

151. ed to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise. (?)The passing of Risk of the Goods in Transit Usually, the determination of time of passing of risk of the goods in transit is

152. extremely difficult, because neither the seller nor the buyer knows anything about the goods at the disposal of the carrier. The Article 67 of the CISG provides three solutions to solve this problem. 1?The risk in respect of goods sold in transit passes to the buyer from the time

153. of the conclusion of the contract. 2?If the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents em-bodying the contract of carriage. As to the correct understanding of “If the cir-

154. cumstances so indicate”, regard should be had to the particular case and its circumstances. (?)If at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods had been lost or damaged and did not

155. disclose this to the buyer , the loss or damage is at the risk of the seller. (?)Fundamental Breach of Con-tract’s Effect on the Passing of Risk According to the Article 70 of the CISG, if the seller has committed a fundamental breach of contract, the

156. above stipulations do not impair the remedies available to the buyer on account of the breach. This means that if the seller commits a fundamental breach of contract in accordance with the CISG, it in due course of the trade does not effect the passing of the risk

157. to the buyer, but the buyer has the remedies available to the damages caused by the seller’s fundamental breach. ??Passing of Property The property in the goods means the ownership of the goods, as distingui-

158. shed from their possession. In inter-national trade it is extremely important to know the precise moment of time at which the property in the goods passes from the seller to the buyer. In case of the destruction of the goods by fire or other or other accidental cause it is

159. necessary to know which party has to bear the loss. Internationally, however, different countries have different provisions on specific goods and unascertained goods.

160. ??Common Law Sales of Goods Act of the United Kingdom contains provisions on spe-cific goods and unascertained goods. (?)Specific Goods Specific goods are goods identified

161. and agreed upon at the time the con-tract is made. The property of specific goods passes to the buyer at the time when the parties intend it to pass. Un-less a contrary intention appears, the following rules are applicable for as-certaining the intention of the parties:

162. 1?Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property passes to the buyer when the contract is made. 2?Where there is a contract for the sale of specific goods not in a deliver-

163. able state, i.e. the seller has to do something to the goods to put them in a deliverable state, the property does not pass until that thing is done and the buyer has notice of it. 3?Where there is a contract for the sale of specific goods in a deliverable

164. state, but the seller is bound to weigh, measure, test or do something with re-ference to the goods for the purpose of ascertaining the price, the property does not pass until that thing is done and the buyer has notice of it. 4?When goods are delivered to the

165. buyer on approval (????????)or “on sale or return”(?????), the property therein passes to the buyer. (?)Unascertained Goods Sales of Goods Act provides that the property in unascertained goods does

166. not pass until the goods are ascer-tained. Unascertained goods are goods defined by description only, e.g. 100 tons of coal, and not goods identified and agreed upon when the contract is made.The property in unascertained or future goods sold by description pass-

167. es to the buyer when goods of that description and in a deliverable state are unconditionally appropriated(?????) to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller. (?)CISG

168. The CISG provides that this Convention governs only the formation of the con-tract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, expect as otherwise expressly provided in this Con-vention, it is not concerned with: (1)the validity of the contract or of any of

169. its provisions or of any usage; (2) the effect which the contract may have on the property in the goods sold. However, the CISG provides in principle that the seller is obligated to transfer the title to the buyer and make assurance to deliver the goods of which the third party

170. cannot make any claims. The reason for the CISG’s failure to make provisions to the passing of proper-ty is that there is considerable differences between the provisions of different coun-tries and it is extremely difficult to unify them.

171. ?????: 1?1980???????????? 2?????????,??????????? 3????????????????????

172. 4????????????????????????