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samenvatting international and european law
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summary for the second test of international law of the high school Inholland semester 1 year 2.
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Samenvatting Introduction to International Commercial and European Law, H1 t/m15, ISBN:9789462511712
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Internationaal Recht Hoofdstuk 1 t/m 7
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Recht samenvatting toets BChapter 8: the international sale of goods
8.1 Introduction
A contract of sale is roughly made up of the following points:
The United Nations Convention on the Sale of Goods (CISG) (Vienna Convention), is a UN
convention (verdrag) with substantive law (materieel recht) on the international sale of
goods. CISG only regulates the law of obligations (verbintenissenrecht), the CISG does not
regulate property law (eigendomsrecht).
The CISG includes rules on the passing of risk (risico overgang) from the seller to buyer. The
CISG has some (deliberate) (bewuste) lacunae (lacunes: iets dat ontbreekt) such as regarding
interest rates. Art 78 CISG states that if a buyer fails to pay the price, the other party is
entitled to (recht hebben op) interest on it. The interest rate (rentetarief) itself cannot be
found in the CISG but in the applicable national law.
8.1.1 Scope (reikwijdte) CISG
The CISG applies only to international sales, so the contracting parties have their places of
business in different States. The CISG is applicable to a contract if the States of the
contracting parties are Contracting States (verdragsluitende staten) or if the rules of private
international law (privaatrecht) lead to the application of the law of a Contracting State, Art
1 CISG. Even if the buyer and seller have their place of business in countries which are not
Contracting States, the CISG will apply to their contract if they choose the law of a
Contracting State.
- The CISG only applies to the sale of goods, not services
- The CISG does not apply to:
o Sale of goods bought for personal, family or household use. Unless the seller,
at any time before or at the conclusion of the contract, neither knew nor
ought to have known that the goods were bought for any such use, Art 2.
o Consumer contracts fall outside the scope of the CISG because States have
varying mandatory (dwingende) rules protecting the consumer.
,Whether goods are bought for personal use or not can often be deduced (afgeleid) from the
circumstances → a consumer will not buy 35 new cars. Also other circumstances can make it
clear that the goods are not bought for personal use.
- Goods bought at an auction (veiling): action sales (actieverkopen) are excluded.
- Goods bought at an execution sale (a forced sale).
- Sale of stocks, shares, investment securities (beleggingen in waardepapieren),
negotiable (verhandelbare) instruments or money.
- Sale of ships, vessels, hovercraft or aircraft.
- Sale of electricity.
The CISG does not apply to barter contracts (ruilcontracten) because the payment of a price
is seen as central to a contract of sale. A barter contract is a contract whereby one party
gives goods or services to another party an does not receive money in return, but receives
other goods or services.
Also contracts for the supply (levering) of goods to be manufactured (vervaardigen) or
produced are to be considered contract of sales falling within the scope of the CISG. Art 3
under 1 formulates an exception in case the party ordering the goods undertakes to supply a
substantial part of the materials necessary for such manufacture or production. (een
uitzondering voor het geval de besteller van de goederen zich ertoe verbindt een
substantieel deel van de materialen te leveren die nodig zijn voor een dergelijke fabricage of
productie) voorbeeld: een Oostenrijks bedrijf bestelt borstels en bezems in Joegoslavië.
Volgens het contract moet de Oostenrijkse koper de Joegoslavische verkoper voorzien van
materialen voor de productie van de bestelde goederen.
The CISG only governs (regelt) the formation (totstandkoming) of the contract of sale and
the rights and obligations (plichten) of the seller and the buyer arising (voortvloeien) from
such a contract. The CISG does not govern the validity (geldigheid) of the contract, Art 4. So
the questions of whether a contract is illegal or whether the buyer made a mistake when
accepting the offer are not governed by the CISG.
Although the CISG states that the seller has the obligation to transfer the ownership of the
goods to the buyer, Art 30 CISG, the answer to the question of which party owns the goods
cannot be found in the CISG. Art 4 excludes (sluit uit) the issue of which party is the owner of
the goods.
8.1.2 Opt out (afmelden) CISG
According to Art 6, it is possible for parties to agree that the CISG, or parts of the CISG, do
not apply to the contract. Each party has to agree on the exclusion (uitsluiting). A clause
stating that the contract will be 'governed by the laws of the State of ...' will result in the
application of the CISG. The CISG is part of the law of each Contracting State. So parties
seeking to escape from the CISG must expressly exclude its application.
It is advisable to formulate the exclusion of the CISG in the contract of sale precisely.
The clause 'nationaal' law was deemed sufficient (voldoende geacht) by a Dutch district
court to exclude the CISG since both parties in the conflict agreed that with the word
'nationaal' they intended to exclude the CISG.
,A clause in the GCS excluding the CISG is risky because if the court decides in a specific
conflict that the GCS as a whole do not apply to the contract, the CISG will apply to the
contract.
In many international contracts there is a clause stating that the CISG does not apply to the
contract, the reasons:
- People who draft the contract (often lawyers) know their own national law better
than the CISG.
- The other reason is that it is a relatively recent treaty and the national courts’
interpretation (interpretatie) remains uncertain (blijft onzeker). This has become a
bad reason since there are more and more judgements about how the CISG should
be applied.
The UN has a department (afdeling) specializing in
commercial law reform (hervorming van het
handelsrecht) worldwide: UNCITRAL.
The UNCITRAL Secretariat has established a
system called CLOUT for collecting (verzamelen)
and disseminating (verspreiden) information on
court decisions on the CISG.
8.2 Content (inhoud) of CISG
If there is agreement between the parties, a contract is formed.
If an offer is accepted, there is agreement and at that moment the contract is concluded
(komt tot stand), Art 23. Acceptance of an offer becomes effective at the moment the
indication of assent (de blijk van instemming) reaches the person making the offer, Art 18
under 2. At this moment the agreement is reached. The importance of knowing if a contract
is concluded, lies in the fact that only if there is a contract is the party that does not fulfill its
obligations liable for damages etc. (Het belang om te weten of een contract tot stand komt,
ligt in het feit dat alleen als er een contract is de partij die zijn verplichtingen niet nakomt
aansprakelijk is voor schade etc.)
An offer is valid (geldig) the moment it reaches the other party. The person making the offer
can withdraw (herroepen) up to and including the moment the offer reaches the other
party, Art. 15.
Up to the moment the person receiving the offer sends his acceptance, the person making
the offer can revoke (herroepen) the offer, unless the offer is irrevocable (onherroepelijk),
Art 16. → example page 264.
, The person receiving the offer can decide to accept the offer, refuse the offer or make a
counteroffer, a counteroffer (tegenbod) is a new offer. Silence inactivity (enkele stilzwijgen)
of the person receiving the offer does not amount to acceptance (geen aanvaarding). The
offer has to be accepted 'within a reasonable time', Art 18 under 2. This means that an offer
made by email has to be accepted promptly (onmiddelijk).
The acceptance does not necessarily have to be in writing, Art 11. The acceptance can be
oral (mondeling) or even derived (ontleend) from the behaviour of a person. The person
receiving the offer may indicate assent (instemming aangeven) by performing an act (door
een handeling uit te voeren), such as delivering the goods, usage (gebruik) of most parts of
the goods or payment of the price, without notice to the person making the offer, Art 18
under 3.
If the acceptance (aanvaarding) modifies (wijzigt) the offer the contract is concluded (komt
tot stand) as long as the modification (wijziging) does not materially alter the terms of the
offer (de voorwaarden van het aanbod niet wezenlijk verandert), Art 19 under 2. The CISG
does not define when the terms of the offer are materially altered, but does state that
changes in terms like the price, payment, quality of the goods, place and time of delivery,
extent of one party's liability to the other or the settlement of disputes are considered to
alter the terms of the offer materially, Art 19 under 3. Therefore only minor changes in the
acceptance are considered immaterial changes.
The contract is concluded the moment the acceptance reaches the person making the offer,
Art 18.
According to Art 11, a contract of sale does not need be concluded in or evidenced by
writing and is not subject to any other requirement as to form (hoeft een koopcontract niet
schriftelijk te worden gesloten of te worden bewezen en is er geen andere vormvereiste). It
may be proved by any means (middelen), including witnesses. So an oral contract is valid
under the CISG. According to Art 29, oral modifications of the contract are possible if both
parties agree.
It still is advisable to make a written contract if the CISG is applicable. Art 12 and 96 allow a
Contracting State to declare, at the time of its adoption of the CISG, that a contract and
modifications of a contract must be in writing. Some countries have declared (verklaard) that
the provisions (bepalingen) of the CISG authorizing (toestaan) the unwritten formation,
modification or termination of a contract will not apply, if either party to the transaction has
its place of business in that country.
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