国际货物买卖合同中买卖双方权利义务.ppt

国际货物买卖合同中买卖双方的权利义务,CISG第三部分 Incoterms2000 合同法总则及分则第九章,2019/7/9,ruc hly,2,义务渊源,联合国国际货物销售合同公约 Incoterms2000 合同法总则及分则第九章 当事人约定,2019/7/9,ruc hly,3,公约规定的义务,共同义务 保全货物 通知 卖方的四大义务 买方的两大义务,2019/7/9,ruc hly,4,卖方的义务,交付合同规定的货物 交付单据（转移所有权） 货物相符 权利保证,2019/7/9,ruc hly,5,Article 30,The seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention. Section I. Delivery of the goods and handing over of documents,2019/7/9,ruc hly,6,1交货：deliver the goods,何为交付：自愿转移占有形式？ 地点 特定地点 涉及运输，交给第一承运人 不涉及运输，特定货物或未特定化货物，知悉的特定地点 其他情况，卖方订立合同时的营业地 时间 具体日期一段时期合同订立后合理时间,2019/7/9,ruc hly,7,31（b）,31.If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: (b) if, in cases 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 contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place-in placing the goods at the buyer's disposal at that place;,2019/7/9,ruc hly,8,交货方式（运输）,交给承运人 加注货物标记注明货物，否则发货通知 如果安排运输，必要运输合同 如果无义务保险，提供保险帮助,2019/7/9,ruc hly,9,32(2),32(2) If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation.,2019/7/9,ruc hly,10,2交单,交付单据(转移所有权) 与国内贸易的最大不同 交货之外的独立义务 按合同规定的时间、地点、形式,2019/7/9,ruc hly,11,Article 34,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 form required by the contract. If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention.,2019/7/9,ruc hly,12,3货物相符,四方面 数量（溢短装） 质量 规格 包装 如何确定相符 约定标准（相互间的关系） 规格（买方或卖方的规定确定A65） 说明 样品 公约最低标准,2019/7/9,ruc hly,13,3货物相符（公约标准）,四标准：买方订约时已知例外（卖方免责） 通常使用目的 特定目的 样品 通常方式包装,2019/7/9,ruc hly,14,货物检查,标准机构时间地点 卖方检验，结算依据 买方检验，最终依据 双方约定,2019/7/9,ruc hly,15,买方通知不符时间,及时检验 及时通知不符 过期丧失主张不符权 卖方已知或不可能不知而未告知的，例外,2019/7/9,ruc hly,16,货物不符与风险转移,货物不符与途中灭损风险承担是两个不同问题 卖方负责期限CISG36 卖方应按照合同和本公约的规定，对风险转移到买方时所存在的任何不符合同情形，负有责任，即使这种不符合同情形在该时间后方始明显。 卖方对上一款所述时间后发生的任何不符情形，也应负有责任，如果这种不符合同情形是由于卖方违反他的某项义务所致，包括违反关于在一段时间内货物将继续适用于其通常适用的目的或某种特定目的，或将保持某种特定质量或性质的任何保证。 风险转移时 风险转移后违约延长期限,2019/7/9,ruc hly,17,卖方对货物不符的责任,买方订约时知道不符否？ 不知，卖方有责 已知，卖方免责 （卖方已知？） 买方收货后合理通知？ 有，则卖方有责 无，则买方失权 卖方已知而没告知，不能主张买方失权（保护买方）,2019/7/9,ruc hly,18,Article 35 一般要求,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.,2019/7/9,ruc hly,19,四标准,35(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they: (a) are fit for the purposes for which goods of the same description would ordinarily be used; (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgment; (c) possess the qualities of goods which the seller has held out to the buyer as a sample or model; (d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.,2019/7/9,ruc hly,20,卖方负责的期限,36(1) 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 to the buyer, even though the lack of conformity becomes apparent only after that time. (2) 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 breach of any of his obligations, including 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 characteristics.,2019/7/9,ruc hly,21,35（3）卖方因买方已知而免责,35(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.,2019/7/9,ruc hly,22,38 买方检查时间、地点,(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. (2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination. (3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination.,2019/7/9,ruc hly,23,39 不符通知,(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee.,2019/7/9,ruc hly,24,40卖方已知缺陷，保护买方,The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer.,2019/7/9,ruc hly,25,4卖方权利担保义务与责任,何种权利 何时权利 何地权利 对谁 严格,2019/7/9,ruc hly,26,4物权担保,交付的货物，第三方不能提出任何权利或要求 买方同意例外（卖方免责） 买方及时通知与失权 卖方知或应知权利要求，不能主张买方失权（保护买方）,2019/7/9,ruc hly,27,知识产权权利担保,第三方不得提出知识产权权利或要求 预期转售地使用地 买方所在地 订约时卖方已知或不可能不知 买方已知或提供图样例外 买方及时通知与失权 卖方已知或应知，不能主张买方失权,2019/7/9,ruc hly,28,案例讨论,许可方欧洲公司 被许可方中国公司 多条生产线 合法 自己组装 出口美国 被指控侵权 其他国家？ 怎办,2019/7/9,ruc hly,29,Article 41 物权性质的要求,The seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim. However, if such right or claim is based on industrial property or other intellectual property, the seller's obligation is governed by article 42.,2019/7/9,ruc hly,30,Article 42 卖方对缔约时已知IP承责,(1) 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, of which at 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: (a) under the law of the State where the goods will be resold or otherwise used, 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 (b) in any other case, under the law of the State where the buyer has his place of business.,2019/7/9,ruc hly,31,Article 42 买方已知使卖方免责,(2) The obligation of the seller under the preceding paragraph does not extend to cases where: (a) at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim; or (b) the right or claim results from the seller's compliance with technical drawings, designs, formulae or other such specifications furnished by the buyer.,2019/7/9,ruc hly,32,43 买方通知义务与卖方已知,43(1) The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has become aware or ought to have become aware of the right or claim. (2) The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it. 44 Notwithstanding the provisions of paragraph (1) of article 39 and paragraph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice.,2019/7/9,ruc hly,33,买方义务,支付价款 支付准备和实际支付 ?卖方未交付货物,应否付款 接收货物 接收准备和实际接收 不是接受,2019/7/9,ruc hly,34,Article 53,53 The buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.,2019/7/9,ruc hly,35,54付款准备,54. The buyer's obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulations to enable payment to be made.,2019/7/9,ruc hly,36,付款地点,特定地点 卖方营业地 交货交单地,2019/7/9,ruc hly,37,57 付款地点,57(1) If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: (a) at the seller's place of business; or (b) if the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place. (2) 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 contract.,2019/7/9,ruc hly,38,付款时间,特定时间 货物或单据交买方控制时 支付可为交付条件 付款可为发运货物条件 验货机会前可不支付 与交货或支付程序抵触除外 到期付款，无需催办,2019/7/9,ruc hly,39,58付款时间,(1) If the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at the buyer's disposal in accordance with the contract and this Convention. The seller may make such payment a condition for handing over the goods or documents. (2) If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer except against payment of the price. (3) The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity.,2019/7/9,ruc hly,40,55 价格的确定,55. Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned. 56. If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the net weight.,2019/7/9,ruc hly,41,收取货物,采取一切行动，便利卖方交货 FOB下的租船 接收货物 FOB下的派船,2019/7/9,ruc hly,42,收货义务,66.The buyer's obligation to take delivery consists: (a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; and (b) in taking over the goods.,2019/7/9,ruc hly,43,共同义务1保全货物,保全情形 买方推迟收货，或货款同时清结时不付款，卖方控制货物 买方收到货物，但打算退货 买方退货，代收货物 保全措施种类 寄放 出售（条件） 合理性费用及补偿,2019/7/9,ruc hly,44,共同义务2通知,行权通知 宣告合同无效的通知（26条） 通知未能及时到达，不影响通知人的权利（27条） 另外要求的通知（设定义务的通知） 到达生效，如履约宽限期的规定,2019/7/9,ruc hly,45,违约类型,根本违约与非根本违约 效果 预期违约与实际违约 时间 根本违约 V. 预期违约 交叉,2019/7/9,ruc hly,46,根本违约的界定及结果,违约后果剥夺受害人预期利益（主观） 违约方没有预知（主观） 第三人无理由预知（客观） 受害方可宣告合同无效,2019/7/9,ruc hly,47,分批交货与根本违约,批次货物与合同的关系 批次货物 前后批次货物 合同货物 宣告合同无效,2019/7/9,ruc hly,48,25根本违约,25 A breach of contract committed by one of the parties is fundamental if it 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 circumstances would not have foreseen such a result.,2019/7/9,ruc hly,49,预期违约,时间 表现 措施 中止 宣告合同无效 保证,2019/7/9,ruc hly,50,71预期违约anticipatory breach,71.(1) A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of: (a) a serious deficiency in his ability of perform or in his creditworthiness; or (b) his conduct in preparing to perform or in performing the contract.,2019/7/9,ruc hly,51,71预期违约（续）,(2) If the seller has already dispatched the goods before the grounds described in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller. (3) A party suspending performance, whether before or after dispatch of the goods, must immediately give notice of the suspension to the other party and must continue with performance if the other party provides adequate assurance of his performance.,2019/7/9,ruc hly,52,违约责任,责任类型与救济措施 合同责任与侵权责任 合同前/中/后责任 赔偿责任 其他责任（救济）,2019/7/9,ruc hly,53,赔偿的原则,普遍适用 非他所能控制的障碍时的免除 高低要求,2019/7/9,ruc hly,54,赔偿原则,一方当事人违反合同应负的损害赔偿额，应与另一方当事人因他违反合同遭受的包括利润在内的损失额相等。（实际） subject to 这种损害赔偿不得超过违反合同一方在订立合同时依照他当时已知或理应知道的事实和情况，对违反合同预料到或理应预料到的可能损失。（预期）,2019/7/9,ruc hly,55,存在替代交易时的赔偿,如果合同被宣告无效，宣告无效后的合理时间内，买方以合理方式购买替代物，或卖方以合理方式转售，则要求赔偿的一方可以获得 合同价格与替代交易价格之间的差额 以及据上述赔偿的一般原则可以取得的其他损害赔偿,2019/7/9,ruc hly,56,没有替代交易时的赔偿,如果合同被宣告无效，当事人没有转售或购买货物，而货物在交付地点又有时价，则要求损害赔偿的一方，可以取得合同价与宣告合同无效时的时价之间的差额及据一般赔偿原则可取得的其他赔偿。 如果买方接收货物后又宣告合同无效，则适用接收货物时、交付货物地的时价，即合同价与接收货物时的时价之间的差额。,2019/7/9,ruc hly,57,有关损害赔偿的一些原则,实际与合理预期 74 45.2/61.2 not deprived of any right he may have to claim damages by exercising his right to other remedies. 79.5 Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention.,2019/7/9,ruc hly,58,74损害赔偿的一般原则：实损,74. Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.,2019/7/9,ruc hly,59,75解除合同时的损害赔偿：差价,75.If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer h