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Contracting Under UCC, CISG, UNIDROIT, and other Laws or Rules. Breakout Session # 201 Jeffrey L. Roth, Attorney, Fees & Burgess, P.C . Allen L. Anderson, Attorney, Fees & Burgess, P.C. Date : April 14, 2008 Time: 11:00 am - 12:00 pm. What are They?.
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Breakout Session # 201
Jeffrey L. Roth, Attorney, Fees & Burgess, P.C.
Allen L. Anderson, Attorney, Fees & Burgess, P.C.
Date : April 14, 2008
Time: 11:00 am - 12:00 pm
Argentina, Australia, Austria, Belarus, Belgium, Bosnia, Bulgaria, Burundi, Canada, Central African Republic, Chile, China, Colombia, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, El Salvador, Estonia, Finland, France, Gabon, Georgia, Germany, Ghana, Greece, Guinea, Herzegovina, Honduras, Hungary, Iceland, Iran (Islamic Republic of), Iraq, Israel, Italy, Kyrgyzstan, Latvia, Lebanon, Lesotho, Liberia, Lithuania, Luxembourg, Madagascar, Mauritania, Mexico, Moldova, Mongolia, Montenegro, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Philippines, Poland, Republic of Korea, Romania, Russian Federation, Saint Vincent and the Grenadines, Saudi Arabia, Senegal, Serbia, Sierra Leone, Singapore, Slovakia, Solvenia, Spain, Sri Lanka, Sweden, Switzerland, Syrian Arab Republic, The former Yugoslav Republic of Macedonia, Uganda, Ukraine, United States of America, Uruguay, Uzbekistan, Venezuela (Bolivarian Republic of), Zambia.
Only if you agree to it! Parties can opt out of these provisions through contract language.
UCC and CISG
Both provide similar coverage, including:
(1) Unless excluded or modified (§ 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the Seller is a merchant with respect to goods of that kind.
(2) Goods to be merchantable must be at least such as
(3) Unless excluded or modified (§ 2-316), other implied warranties may arise from course of dealing or usage of trade.
Where the Seller at the time of contracting has reason to know any particular purpose for which the goods are required, and that the Buyer is relying on the Seller's skill or judgment to select or furnish suitable goods, there is, unless excluded, an implied warranty that the goods shall be fit for such purpose.
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.
2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:
Although different wording is used, both allow similar remedies; these include:
Buyer’s rights include:
Seller’s rights include:
1) Where the Seller fails to make delivery or repudiates or the Buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract, the Buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
Contracts are often ambiguous in certain areas, and both the UCC and CISG provide similar methods of interpretation.
UCC and CISG
A contract of sale need not be concluded in, or evidenced by, writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.
UCC § 2-201
Except as otherwise provided in this section, a contract for the sale of goods for the price of$500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.Writing Requirement
Offer and Acceptance
The CISG follows the “mirror image” rule – the offer and acceptance must match in order to establish a contract.
CISG requires both the quantity and the price terms to be spelled-out; otherwise, no contract is formed.
Does contain provisions for who bears the risk of any loss during transit and when title passes.
(b) When the term is F.O.B. the place of destination, the seller must at his own expense and risk transport the goods to that place and there tender delivery.
(c) When under either (a) or (b) the term is also F.O.B. vessel, car, or other vehicle, the Seller must in addition at this own expense and risk load the goods on board.
These differences in terms are important and can drastically change your company’s liability!
Specific Performance: the right to require performance of the contract.
(2) Where the Seller fails to deliver or repudiates the Buyer may also . . .
(b) in a proper case obtain specific performance or replevy the goods as provided in this Article (Section 2-716).
CISG Article 46(1)
(1) The Buyer may require performance by the Seller of his obligations unless the Buyer has resorted to a remedy which is inconsistent with this requirement.Specific Performance
Neither Incoterms nor the CISG provide guidance as to when title passes.
CISG defaults to domestic law:
BUT domestic systems can differ.
IT IS BEST TO INCLUDE PROVISIONS FOR PASSAGE OF TITLE IN THE CONTRACT!
Fees & Burgess, P.C., provides speakers, programs, and seminars for various trade associations; business groups; and clients. For information regarding a program, contact Julia S. Fees email@example.com.
Michael L. Fees
C. Gregory Burgess
Allen L. Anderson
Jeffrey L. Roth
Stacy L. Moon
Leah M. Green
Nori D. Horton
Ryan G. Blount
Bryant L. Lewis
FEES & BURGESS, P.C.
213 Green Street
Huntsville, Alabama 35801
Telephone (256) 536-0095
Facsimile (256) 536-4440
Fees & Burgess, P.C., publishes F&B QuarterlyBytes, focusing on multiple practice areas, F&B HR Corner, focusing on human resource issues, and F&B SCMMemo, focusing on the supply chain management industry. To receive any of these e-newsletters, please provide Julia S. Fees at firstname.lastname@example.org with your contact information.
These materials should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney.