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1、,国际贸易实务双语教程（第三版）,(INTERNATIONAL Business Practice),清华大学出版社,Review What is an Enquiry?What is an Offer?What is an acceptance?What are the two indispensable links for reaching an agreement of contract?,Chapter 3 Contracts for the International Sale of Goods,Main Point in this Unit,Section One Definiti
2、on of Contract（合同的定义）,Section Two Formation of Contract（合同的格式）,Section Three Performance of Contract（合同的履行）,IntroductionBusiness as we know it today would be impossible if there was no agreement or contract to bind the contracting parties.Long ago,people devised a means for bargaining for the conduc
3、t of others by exchanging promises.The exchange of promises came to be known as“agreements”and gradually became very important in the lives of the people and in the field of business.,A promise or an agreement is reached as a result of the process of offer and acceptance.When an agreement is reached
4、,a contract is formed,which creates legal obligations enforceable by law.Contracts can be long or short,formal or informal,simple or complicated,and verbal or written,of which the most popular is the written contract for pre-printed contract.,Introduction,The importance of a contract in an internati
5、onal sales transaction cannot be underestimated.So the exporter should avoid viewing the contract merely as a document that initiates transaction and subsequently is filed and forgotten.Contracts must be drafted with an awareness of the background of the law in which the transaction takes place,with
6、 a clear conception of the various services it may be called upon to render,etc.,Introduction,Section One Definition of the Contract,What is contractA contract is an agreement between two or more competent parties in which an offer is made and accepted,and each party benefits.It is an agreement whic
7、h sets forth binding obligations of the relevant parties.,A contract is an agreement which sets forth binding obligations of the relevant parties.It is enforceable by law,and any party that fails to fulfill his contractual obligations may be sued and forced to make compensation,though most contracts
8、 do not give rise to disputes.,A contract proper includes:1)the full name and address of the buyer and the seller;2)the commodities involved;3)all the terms and conditions agreed upon;4)indication of the number of original copies of the contract,the language used,the term of validity and possible ex
9、tension of the contract.,1.Establishment time of contract Two standards for judgment:1.When the effective acceptance reaches offeror;2.When offeree makes the behavior of accepting.,2.The essential conditions of a contract come into effective:1)contracting parties should have signing ability 2)the co
10、ntent of the contract should be legal 3)the contract should conform to legal formality 4)contracting parties meaning expresses should be true,The prerequisites（前提）required for a contract to be recognized and enforced,(1)A Valid Offer and a Proper Acceptance(2)Sufficiency of Consideration（对价）(3)Absen
11、ce of Fraud,Force,or Legal Loopholes(4)Legal Capacity(5)Consistency with General Public,1.Formation of contact(1)Written contract It is the basis that the contract is established It is the basis of fulfilling contract It is the basis that the contract comes into force It is the basis of arbitration
12、or lawsuit.(2)Oral form(3)Other forms,Section 2:Formation and main contents of contact,2.Main parts of contract Preamble Body Witness clause,约首，约文，约尾Preface of a Treaty,Text of a Treaty,End of a Treaty,CISG Article 11:A contract of sale need not be concluded in or evidenced by writing and is not sub
13、ject to any other requirement as to form.It may be proved by any means,including witnesses.,销售合同无须以书面订立或书面证明，在形式方面也不受任何其它条件的限制。销售合同可以用包括人证在内的任何方法证明。,Various Formats of Contract In Written,ContractConfirmationAgreementMemorandumLetter of IntentOrder(),THE LAWS ARE APPLICABLE TO INTERNATIONAL SALES CO
14、NTRACTS,International Trade Practice International Rules for the Interpretation of Trade Terms国际贸易术语解释通则 Uniform Customs and Practice for Documentary Credit跟单信用证统一惯例 International Treaty Unite Nations Convention on Contracts for the International Sale of Goods联合国国际货物销售合同 公约Domestic Laws Contract law
15、中华人民共和国合同法,Modification or Termination of Contract,CISG Article 29:(1)A contract may be modified or terminated by the mere agreement of the parties.(2)A contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modifie
16、d or terminated by agreement.However,a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct.,Name of commodity,Quality,Quantity,Package,Price,Payment,Transport and insurance,The time limit and place of performance,The pre
17、vention and handling of dispute,NAME OF COMMODITY,Generally,this clause is relatively simple,we always list the names that in the offer or counter-offer under the article of Name of Commodity.And sometimes we only write several sentences showing the two parties agreement on the business of some comm
18、odity at the beginning of a contract.,QUALITY,In the quality clause we should clearly list the name and detailed qualities of commodities.As commodities are various,the ways showing their qualities are not the same.So the terms of quality must be fit for the characteristics of commodities.,QUANTITY,
19、The quantity clause mainly includes the quantity and unit of commodity.To facilitate the performance of contract and avoid disputes,the quantity clause should be clear and detailed.In addition,it is improper to use those uncertain words like about、circa、approximate to define the quantity.,Packing ma
20、terial,Method of packing,Specification of packing,Packing mark,Packing charges,Package,PACKING MATERIAL,The packing for sea need firmThe packing for rail need not afraid of shakingThe packing for air need lightSee the law of relative country,METHOD OF PACKING,Single packingSet packingGenerally,choos
21、e set packing,SPECIFICATION OF PACKING,Involve such respects as every package putting,the piece and expenses packed,etc.,should confirm according to the actual conditions.,PACKING MARK,Packing mark includes shipping mark,indicative mark and dangerous cargo markShipping mark can be chosen by us,or by
22、 the customer.,PACKING CHARGES,Generally including in the price of goodsOr not including in the price of goods,paid by buyer.,PRICE,Unit price and the total amount of payment are extremely important in a contract.After several rounds of offer and counter-offer,both parties reach an agreement on the
23、price.The price clause should clearly indicate the currency、price terms、unit price and the total amount of payment.When writing the total amount in capital,we always add“say”at the beginning of the sentence,and“only”at the end.,PAYMENT,This clause mainly includes：The means of paymentTime and place o
24、f payment and so on,TRANSPORT AND INSURANCE,While negotiating,both parties must discuss for the time of delivery,place of loading and the destination,whether partial shipment or transshipment,amount of insurance,risk,insurance rate and which insurance clause of insurance company being accurate.Shipm
25、ent:different price terms must relate to different responsibility and risk.Insurance:different price terms,different person to fix insurance.,STIPULATE THE FLEXIBLE RANGE,In quality terms,add the clause such as“QUALITY TO BE CONSIDERED AND BEING ABOUT EQUAL TO THE SAMPLE.”According to the error of p
26、roducts quality that internationally acknowledged,add“QUALITY TOLERANT.”As to some primary product that quality is not very steady,while regulating its quality index,can make certain flexible range of quality separately,allow certain range in the quality index of the goods that sellers hand in,but s
27、hould adjust prices according to the situation of quality of delivering goods.,USE VARIOUS KINDS OF EXPRESSION METHODS PROPERLY,Choose the way describe quality according to the character.If can describe in one way,dont use many ways.,While negotiate on quality,the seller can add such in the contract
28、:If the quality the seller delivers is defective,does not accord with the regulation of the contract,the buyer cant cancel contract,but can lodge a claim against seller.,FORMULATE THE CLAUSE ACCORDING TO ACTUAL ABILITY,Pay attention to the science and rationality.Avoid too high or too low.Pay attent
29、ion to the inner link and relation between every quality index.,Inspection,Force majeure,Arbitration,The prevention and handling of dispute,INSPECTION,The third party provides the inspection certificate.At present in our country,examine in the export country,re-inspects in import country.Inspection
30、clause includes:inspection time,inspection place,inspection organization,inspection certificate,method of inspection,re-inspect,etc.,FORCE MAJEURE,After the contract is signed,it is not fault or carelessness of contracting parties,but because of the accident that cant be predicted,cant be prevented
31、and avoided,so that the parties cant fulfill or cant fulfill the contract as scheduled,so the party that had the accident,can avoid the responsibility of fulfilling contract according to the stipulations of the contract or the law,or postpone fulfilling the contract.,ARBITRATION,Mean both parties wh
32、ile disputing,according to the agreement between both sides,certain organization as the third part,judge the fact of the dispute or the rights and obligations,thus solve the dispute.We should try our best to choose the national arbitration organ or the arbitration organ of the third country.,本文,品名,品
33、质,数量,包装,价款,支付方式,运输与保险,履行期限及地点,争议的预防与处理,品 质,一般要写明商品的名称与具体品质。,包装,包装材料,包装方式,包装规格,包装标志,包装费用,商品检验,不可抗力,仲裁,争议的预防与处理,Summary,This chapter has mainly introduced the general procedures of business negotiation,the basic contents and establishment of contract,etc.Key point of this chapter:offer,acceptanceDiffi
34、cult point:the explanation of offer and acceptance in“convention”.About the sample contract,please read the text book P47-75,Exercise,Please finish the exercise in the text bookCase Study:Please read your case book,1 Please write letters of enquiry,offer,counter-offer and credit enquiry,Case Study,2
35、 Translate the contract you are given.,3 Case Study,Company Y is to sell a certain number of sea food products:shrimp,while Company W is an importer from Poland.On June 15th,2009,Company Y made a firm offer to Company W as follows:Sea food of shrimp 100 tons,prompt shipment,irrevocable letter of cre
36、dit at sight payment at US$5000 per ton CIF Rotterdam,the offer is valid by June 23rd,2009 by fax.Company W on June 20th,2009 replied as follows:Your offer on June 15th,2009 was accepted with 100 tons of shrimp,prompt shipment,irrevocable letter of credit at sight payment at US$5000 per ton CIF Rott
37、erdam,apart from the usual shipping documents,certificate of origin,phytosanitary certificates,a good maritime transport packaging are all requested.Company Y on June 22nd replied as follows:We regret to tell you that due to price changes in world market we have the goods sold before our receiving y
38、our fax on 20th.The two sides regarded to the dispute that whether the contract was set up.Question:Was the contract effectively set up?Why?,Case Study,In 2009,some import and export company sold a batch of non-food corn to a Brazil company.The contract stipulated:Quality as the marketable quality,w
39、ith 98%of purity as the standard,impurity less than 2%,shipment by marine transport,payment by D/A payable by draft at usance in order to give the buyer a certain degree of financial intermediation.Two months later when the goods arrived at the destination,the buyer had the goods inspected by inspec
40、tion authorities,which showed that the quality of the received goods was inferior to the quality as to which the contract was made and took excessive aflatoxin in the corn as an excuse to refuse to pick up the goods.After investigation,the survey showed that the original quality of the goods would n
41、ot influence the sales of the corn.The real reason why the buyer breached the contract was that the market price for corn during that time was declining.Through several negotiations,the seller agreed to cut down the price by 30%so as to conclude the business.Question:What can we learn from the case?
42、22,Case Study,Case 1,Case Description:Company A signs up a business contract with Company B,in which there is a stipulation:“Company A must reply within 7 days after receiving Company Bs order.If Company A can not reply within 7 days,then it is deemed to have accepted the order.”On March 10th,Compan
43、y A received an order for 500 metric tons of first grade rice from Company B.But on April 5,Company A notified Company B that Company A is not able to supply the 500 metric tons of first grade rice.Company B lodged objections because he thinks that the contract has already been set up.If Company A f
44、ails to fulfill the obligations,it should pay for damages to Company B.Question:Can the contract between Company A and Company B be set up?Why?,A Chinese export company exported 3000 tons of walnuts on the basis of a CIF Avon moth to a British importer.Walnut is a best-selling Christmas goods in Eur
45、ope,so the United Kingdom importer required to ensure the walnut arrival two weeks before Christmas,the two sides provided in the contract that:The purchaser was required to open an L/C by the end of August and the seller to ensure the goods arrive at the port of destination on November 15th,otherwi
46、se,the buyer was entitled to cancel the contract.On receiving the L/C from the buyer,the seller delivered the goods by a chartered vessel in early September.Thanks to the fact that the Suez Canal was blocked at that time,the vessel had to bypass the Cape of Good Hope.When the ship arrived at the Cap
47、e of Good Hope,the mainframe was out of order.With a tugboat the vessel was towed to Avonmoth port and it was a few days late;the goods were rejected by the British importer and had to be sold locally,which resulted in a total loss of more than 70 million dollars for the Chinese exporter.Question:Wh
48、y did this event happen?How should we avoid it?Whether the contract is also a CIF contract,and why?,Case 2,A Chinese company A received an offer from a foreign Company B on July 6th:“500 tons of malleable iron at US$890 per ton CFR Chinese port for August shipment,payable by L/C at sight.This offer
49、is subject to your reply reaching our end within twenty days.”On July 17th Company A replied:“If you can reduce your price to US$850 per ton,we can accept the offer.Once there are disputes,China arbitration can be accepted.”The foreign Company B replied in the same day:“The price for malleable iron
50、is firm.No price cut down.The arbitration term is acceptable”.Not long after this counter-offer,Company A also found that the price for malleable iron was upward.So on July 19th,Company A replied to Company B:“Your offer of July 6th can be accepted and the relative L/C has been opened.Please confirm
