Unit 4 CISG Unit 4 CISG Text I An Introduction to the ConventionText I An Introduction to the Convention

-To get to know the history and -To get to know the history and development of the CISG and how to apply development of the CISG and how to apply the Convention to international the Convention to international transactions transactions Text II Formation of the Contract Text II Formation of the Contract

-To read part of the Convention and -To read part of the Convention and distinguish the key elements in the distinguish the key elements in the formation of contracts under this formation of contracts under this Convention Convention

Typical Sentence Patterns: Legislative Text Typical Sentence Patterns: Legislative Text (IV)(IV)

Text I An Introduction to the Text I An Introduction to the ConventionConvention

Useful expressions: place of business, under (the Useful expressions: place of business, under (the contract), prevail over, bring an action for, contract), prevail over, bring an action for, defective merchandise, multinational corporation, defective merchandise, multinational corporation, be excluded from, negotiable instrument, in be excluded from, negotiable instrument, in preponderant part, opt out of, derogate from, preponderant part, opt out of, derogate from, accede toaccede to

Terms: conflict of law, assembly contractTerms: conflict of law, assembly contract

Proper names: UNIDROIT, the League of Nations, Proper names: UNIDROIT, the League of Nations, UNCITRAL, CISG, UCC, the Chinese Foreign UNCITRAL, CISG, UCC, the Chinese Foreign Economic LawEconomic Law

Questions based on Part IQuestions based on Part I

1.1. What international organ took the What international organ took the initiative to draft the CISG?initiative to draft the CISG?

2.2. What is the legal effect of the CISG What is the legal effect of the CISG upon member countries of the upon member countries of the Convention?Convention?

3.3. When to apply the CISG and when When to apply the CISG and when to apply the Chinese Foreign to apply the Chinese Foreign Economic Contract Law in China?Economic Contract Law in China?

Terms and proper namesTerms and proper names• CISG CISG （联合国）国际货物销售合同公约（联合国）国际货物销售合同公约• (see both versions of the CISG texts at http://www.cisg.law.pace.e(see both versions of the CISG texts at http://www.cisg.law.pace.e

du/)du/)

• UNIDROIT UNIDROIT （罗马）国际统一私法协会（罗马）国际统一私法协会• the League of Nations the League of Nations 国际联盟国际联盟• UNCITRAL UNCITRAL 联合国国际贸易法委员会联合国国际贸易法委员会• place of businessplace of business 营业地营业地• the Chinese Foreign Economic Contract Law the Chinese Foreign Economic Contract Law

中国对外经济合同法中国对外经济合同法• UCC UCC （美国）统一商法典（美国）统一商法典• (see “UCC Articles” at (see “UCC Articles” at http://www.law.cornell.edu/ucc/uchttp://www.law.cornell.edu/ucc/uc

c.table.html)c.table.html)

Terms and proper namesTerms and proper names

• conflict of laws conflict of laws 冲突法冲突法-section in a country’s legal statute which deals with-section in a country’s legal statute which deals withdisputes between that country’s laws and those ofdisputes between that country’s laws and those ofanother countryanother country

structure of a conflict rulestructure of a conflict rule– 2 parts: category / class 2 parts: category / class （范围）（范围） and attributionand attribution （系属（系属

包括连接点包括连接点 connecting point / factorconnecting point / factor 和准据法和准据法 proper laproper laww ））

– E.g. Ownership to immovablesE.g. Ownership to immovables is governed by is governed by the law of tthe law of the place where the property is situatedhe place where the property is situated..

不动产依不动产所在地法。不动产依不动产所在地法。

Questions based on Part IIQuestions based on Part II

• 1. 1. When to apply the UCC and when to apply When to apply the UCC and when to apply the CISG in the U.S.?the CISG in the U.S.?

• 2. How to define the place of business when 2. How to define the place of business when the commercial transaction concerns a the commercial transaction concerns a multinational corporation?multinational corporation?

• 3. What kinds of sales fall outside the scope of 3. What kinds of sales fall outside the scope of the CISG?the CISG?

• 4. Why are consumer sales excluded from the 4. Why are consumer sales excluded from the CISG?CISG?

• 5. How can a contracting state opt out of the 5. How can a contracting state opt out of the Convention?Convention?

Terms and proper namesTerms and proper names

• negotiablenegotiable - an instrument is negotiable when - an instrument is negotiable when the rules of law allow it to be traded between the rules of law allow it to be traded between parties parties

• consumer protectionconsumer protection - actions taken (sometimes - actions taken (sometimes in the form of laws) to protect consumers from in the form of laws) to protect consumers from defective goods and servicesdefective goods and services

• opt out ofopt out of - to choose not to participate in - to choose not to participate in something something

• derogationderogation- the partial abrogation of a law. To - the partial abrogation of a law. To derogate from a law is to enact something which is derogate from a law is to enact something which is contrary to it, while to abrogate a law is to abolish contrary to it, while to abrogate a law is to abolish it entirelyit entirely

Text II Formation of the Text II Formation of the ContractContract• PreamblePreamble• THE STATES PARTIES TO THIS CONVENTION, THE STATES PARTIES TO THIS CONVENTION, • BEARING IN MIND the broad objectives in the resolutions BEARING IN MIND the broad objectives in the resolutions

adopted by the sixth special session of the General Assembly adopted by the sixth special session of the General Assembly of the United Nations on the establishment of a New of the United Nations on the establishment of a New International Economic Order, International Economic Order,

• CONSIDERING that the development of international trade on CONSIDERING that the development of international trade on the basis of equality and mutual benefit is an important the basis of equality and mutual benefit is an important element in promoting friendly relations among States, element in promoting friendly relations among States,

• BEING OF THE OPINION that the adoption of uniform rules BEING OF THE OPINION that the adoption of uniform rules which govern contracts for the international sale of goods which govern contracts for the international sale of goods and take into account the different social, economic and legal and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in systems would contribute to the removal of legal barriers in international trade and promote the development of international trade and promote the development of international trade, international trade,

• HAVE DECREED as follows:HAVE DECREED as follows:

Text II Formation of the Text II Formation of the ContractContract

• 联合国国际货物销售合同公约 联合国国际货物销售合同公约

（（ 19801980 年年 44 月月 1111 日订于维也纳）日订于维也纳）• 　　本公约各缔约国，铭记联合国大会第六届特别会议通过的关于建　　本公约各缔约国，铭记联合国大会第六届特别会议通过的关于建

立新的国际经济秩序的各项决议的广泛目标，考虑到在平等互利基础立新的国际经济秩序的各项决议的广泛目标，考虑到在平等互利基础上发展国际贸易是促进各国间友好关系的一个重要因素，认为采用照上发展国际贸易是促进各国间友好关系的一个重要因素，认为采用照顾到不同的社会、经济和法律制度的国际货物销售合同统一规则，将顾到不同的社会、经济和法律制度的国际货物销售合同统一规则，将有助于减少国际贸易的法律障碍，促进国际贸易的发展，兹协议如下：有助于减少国际贸易的法律障碍，促进国际贸易的发展，兹协议如下：

• 第一部分 适用范围和总则 第一章 适用范围 第二章 总则第一部分 适用范围和总则 第一章 适用范围 第二章 总则• 第二部分 合同的订立第二部分 合同的订立• 第三部分 货物销售 第三部分 货物销售 • 第一章 总则 第二章 卖方的义务 第三章 买方的义务 第一章 总则 第二章 卖方的义务 第三章 买方的义务

第四章 风险转移 第五章 卖方和买方义务的 第四章 风险转移 第五章 卖方和买方义务的一般规定一般规定

• 第四部分 最后条款第四部分 最后条款

Text II Formation of the Text II Formation of the ContractContract• CISG PART II -- FORMATION OF THE CONTRACTCISG PART II -- FORMATION OF THE CONTRACT

– Article 14 Article 14 [Criteria for an offer] [Criteria for an offer] – Article 15 Article 15 [When offer becomes effective; prior withdrawal] [When offer becomes effective; prior withdrawal] – Article 16 Article 16 [Revocability of offer] [Revocability of offer] – Article 17 Article 17 [Rejection of offer followed by acceptance] [Rejection of offer followed by acceptance] – Article 18 Article 18 [Acceptance: time and manner for indicating assent] [Acceptance: time and manner for indicating assent] – Article 19 [“Acceptance” with modifications] Article 19 [“Acceptance” with modifications] – Article 20 [Interpretation of offeror’s time-limits for acceptance] Article 20 [Interpretation of offeror’s time-limits for acceptance] – Article 21 [Late acceptances: response by offeror] Article 21 [Late acceptances: response by offeror] – Article 22 [Withdrawal of acceptance] Article 22 [Withdrawal of acceptance] – Article 23 [Effect of acceptance: time of conclusion of contract] Article 23 [Effect of acceptance: time of conclusion of contract] – Article 24 [When communication “reaches” addressee]Article 24 [When communication “reaches” addressee]

Terms Terms

residence residence 居所居所• -the place of general abode; principal, actual dwelling place in fact, wit-the place of general abode; principal, actual dwelling place in fact, wit

hout regard to intent hout regard to intent • There is a difference between a man's residence and his domicile. He There is a difference between a man's residence and his domicile. He

may have his domicile in Philadelphia, and still he may have a residencmay have his domicile in Philadelphia, and still he may have a residence in New York; for although a man can have but one domicile, he may he in New York; for although a man can have but one domicile, he may have several residences. ave several residences.

•domicile domicile 住所住所

• -the principal place of residence of an individual. This is determined pr-the principal place of residence of an individual. This is determined primarily by intent. A good indication of domicile is where a person regisimarily by intent. A good indication of domicile is where a person registers to vote. ters to vote. （（ habitual residencehabitual residence ：有些国家以“惯常居住地”为“住：有些国家以“惯常居住地”为“住所”）所”）

• ““ 住所”的两个构成要素：住所”的两个构成要素：– 某人在某地有居住的事实存在；某人在某地有居住的事实存在；– 在某地有久住的意思在某地有久住的意思

TermsTerms

• ““mirror image” rule mirror image” rule 镜像规则 镜像规则 • ––An acceptance which added qualifications or An acceptance which added qualifications or

conditions or which in any way varied from the conditions or which in any way varied from the terms of the original offer was treated as a rejeterms of the original offer was treated as a rejection and counter offer. This was true no mattction and counter offer. This was true no matter how trivial the qualification or condition. Ther how trivial the qualification or condition. This was known as the "Mirror Image Rule." The is was known as the "Mirror Image Rule." The underlying rationale is that the making of a counderlying rationale is that the making of a counteroffer communicates to the offeror that thunteroffer communicates to the offeror that the offeree does not wish to accept the offer. e offeree does not wish to accept the offer.

TermsTerms

• mailbox rule mailbox rule 邮箱规则、投邮主义、发信主义邮箱规则、投邮主义、发信主义• - Although revocation and rejection of an offer are effe- Although revocation and rejection of an offer are effe

ctive when received, the general rule is that a contract ctive when received, the general rule is that a contract is made when the acceptance is dispatched, even thois made when the acceptance is dispatched, even though the letter of acceptance is lost and never reaches ugh the letter of acceptance is lost and never reaches the offeror. Consent is deemed to be fully communicathe offeror. Consent is deemed to be fully communicated when the offeree has placed his acceptance in the ted when the offeree has placed his acceptance in the course of transmission to the offeror. In other words, acourse of transmission to the offeror. In other words, acceptance is effective upon dispatch. (cceptance is effective upon dispatch. ( 关于承诺之生效关于承诺之生效时间：，又称“时间：，又称“ postal rule”postal rule” 与“到达主义”相对与“到达主义”相对 .).)

Terms Terms

• invitation to offer/invitation to treatinvitation to offer/invitation to treat 要约引诱 要约引诱