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学校编码：10384 分类号 密级 学号：12920101154310 UDC
硕 士 学 位 论 文
买方针对卖方违约根据销售公约所享有的宣告合同无效救济的研究
“Study on Avoidance Remedy of the Buyer for Breach of Contract
by the Seller under the CISG”
Mardaev Anvar
指导教师姓名：肖 伟 教 授
专 业 名 称：民 商 法 学
论文提交日期：2012 年 6 月
论文答辩时间：2012 年 月
学位授予日期：2012 年 月
答辩委员会主席：
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厦门大学博硕士论文摘要库
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2012 年 月
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厦门大学博硕士论文摘要库
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厦门大学博硕士论文摘要库
DECLARATION OF AUTHOURSHIP
I, Anvar Mardaev, declare that this thesis entitled
“Study on Avoidance Remedy of the Buyer for Breach of Contract by the Seller under the CISG”
and the work presented in it are my own. I confirm that:
Where I have quoted from the work of others, the source is always given. With the exception of such quotations, this thesis is entirely my own work;
Signature:
Date:
Candidate:
Anvar Mardaev
I
ACKNOWLEDGEMENTS
A number of people have provided support and encouragement throughout my best and worst moments during my master’s program.
I would like to express my deep gratitude to my supervisor, Professor Xiao Wei for his inspiring advice and continuous guidance to help me with the drafting of this thesis. His inciting comments and critical eye have enormously influenced the ultimate outcome of this work.
In particular, I want to thank Prof. Mrs. Zhu for being an incredible program coordinator and for her help me all the time during my master’s program.
In addition, special thanks are conveyed to staffs of the graduate program and all of the professors of School of Law Department for their great support.
I would also like to thank all my classmates; I had a wonderful time with all my classmates and learn a lot from them during our candidate conversations.
I am very grateful acknowledge the granting of scholarship by the China Scholarship Council which enabled me to study at Xiamen University.
I am indebted to express my gratefulness to Ms. Tao who spent his precious time to help me with the proofreading of this thesis.
Last but not least, I would like to express my deepest appreciation and gratitude to my parents for their endless love, care and their support.
As well as my girl-friend Miss. Sinsiree for her encourages me all the time.
This thesis would not be completed if there were no valuable suggestions, comments, assistance and encouragement from many people. I wish to express my sincere thanks to all of them.
II
摘要 本篇论文的重点针对违反《国际货物销售（买卖）》合同的补救方法。选择这个主 题的理由是因为违反合同的补救措施是国际销售合同法非常重要的一部分。据相关 的事项，制约双方经常关注违反合同后和也是为什么很多诉讼或仲裁提出索偿请求 的补救主要理由。在大多数情况下，司法或仲裁判决，法官或仲裁员必须决定有什 么样的赔偿是让卖方或买方双方都有权益的和为什么买房或者是卖方有权向享有这 些救济措施。因此，本课题的研究是“销售公约”在解决国际贸易争端的可预测性研 究的关键。 该研究是对违反合同的救济措施的主要补救方法为中心，国际货物营销也是卖方或 者是买方通常要就违约的补救措施，和避免合同在GISG由双方控制。 一般情况下，补救违约的情况下撤销权是被认为最激烈的方法，这反映出的结果是 不遵守或者不履行合同条款照成严重的负面影响。根据联合国销售公约规定，买方 需要给卖方某些补救措施时但卖方未能履行国际销售合同中一个和多个他的义务时 的解救措施。 在之前的争端或者是纠纷的数量，国内法院涉及“公约”的规定，特别是那些有关的 合同无效的补救措施的规定已经越来越多。本文将会仔细的研究在什么情况下双方 都有权利来解除或者是延长和缩短合同的有效期，并可以扩展或限制这项权利时检 查。和一个重要的概念是根本违反避免的分析，将分析买方的合同。在开展分析， 本文将指出与其他机构，如英国，美国，德国和采用民事和用英美法法学研究分 析，英美法系国家是如何了来确定和解决的，和影响这一决策的过程。 关键词：避税， “销售公约” ，违反合同，从根本上违反义务，交易，补救 III
厦门大学博硕士论文摘要库
ABSTRACT
This thesis focuses on remedy for breach of contract in the international sale of goods. The reason for choosing this subject is that the remedy for the breach of contract is a very important part of international sale contract law. It is related to the matters that the contracting parties are mostly concerned about after a contract is breached and also it is the main reason why many litigation or arbitration claims are filed. In the judicial or arbitration judgments of most cases, the judges or arbitrators have to make their decisions on what remedies the injured seller or buyer are entitled to and why they are entitled to those remedies. The research of this subject is therefore crucial for the study on the predictability of the CISG in resolving disputes in international trade.
The study of remedies for breach of contract in this thesis is going to cover the main remedies that the seller and the buyer usually claim under the CISG for the breach of contract in the international sale of goods. These remedies are the avoidance of contract by the buyer under the CISG.
Generally, the right to avoidance is said to be the most drastic remedy in case of contract breach, which reflects the gravity of the negative effects of non-performance or performance not complying with the terms of contract. Under the United Nations Conventions on CISG, the buyer is a granted certain remedies when the seller fails to perform one or more of his obligations under an international sales contract. The number of disputes before domestic courts involving provisions of the Convention, in particular those provisions relating to the remedy of contract avoidance has been increasing. In this thesis it will be examined in what situations the buyer has the right to avoid the contract under the Convention and when this right can be extended or limited. And an important concept of the fundamental breach is the avoidance of the contract by the buyer will be analyzed.
In carrying out the analysis, this thesis will points out some comparisons with other bodies of law such as UK, USA, Germany and examine the jurisprudence of both civil and common law countries to determine how, if at all, this has influenced the decision making process.
Key Words: Avoidance, CISG, breach of contract, fundamental breach, obligations, transactions, remedy
IV
LIST OFABBREVIATIONS The following are some acronyms that I used in this thesis:
BGB:
German Civil CodeCISG:
Convention United Nations Convention on Contracts for the International Sale of GoodsCISG-AC
The International Sales Convention Advisory CouncilCIETAC
China International Economic & Trade Arbitration CommissionFOB, CIF:
Free on Board, Cost, Insurance, FreightHGB:
German Commercial CodeICC
Interstate Commerce CommissionPECL:
European Principles, Principles of European Contract LawUCC:
Uniform Commercial CodeULIS:
Uniform Law on the International Sale of GoodsUNCITRAL:
United Nations Commission on International Trade LawUNIDROIT:
International Institute for the Unification of Private LawUN:
United NationsV
TABLE OF CONTENTS
DECLARATION OF AUTHORSHIP ……….I ACKNOWLEDGEMENTS………...II ABSTRACT IN CHINESE………...III ABSTRACT IN ENGLISH………...IV LIST OF ABBREVIATIONS……….V TABLE OF CONTENTS………..VI CHAPTER I INTRODUCTION………..1 1.1 Introduction………...1
1.2 The Objective of Study….……….1
1.3 Conclusion……….3
CHAPTER II THE GROUND FOR THE RIGHT OF AVOIDANCE BASED ON FUNDAMENTAL BREACH……….4
2.1 Introduction………...4
2.2 The Buyer’s right of avoidance………....4
2.3 The Concept of Fundamental Breach………...5
(a) Substantial Deprivation ………..6
(b) Contractual Expectation………7
(c)...Foreseeability ………..8
2.4 Analyzing the Case Regarding with Fundamental Breach………..10
2.5 Conclusion………...12
CHAPTER III AVOIDANCE IN CASE OF NON-DELIVERY-BUYER’S RIGHT TO FIX A NACHFRIST ………13
3.1 Introduction……….13
3.2 The Effect of Nachfrist in relation to the buyer's right to avoid the contract……….14
3.3 Does the buyer have a right to fix Nachfrist several times? ………...16
3.4 Loss of the right to avoid the contract……….17
3.5 Comparison with Other Legal Systems………...18
(a) United States Law………...19
(b) German Law .………..21
(c) English Law………23
3.6 Case Law Concerning with Article 49………...25
3.7 Conclusion………...29
厦门大学博硕士论文摘要库
CHAPTER IV ANALYZING THE SELLER’S RIGHT TO CURE THE BREACH-
LIMITATION OF THE BUYER’S RIGHT TO AVOID THE CONTRACT...…....30
4.1 Introduction……….30
4.2 Wording of Article 48………..31
4.3 The legal consequences………34
4.4 Comparison with Other Legal Systems………...35
(a) United States Law………...35
(b) German Law ………..37
(c) English Law………38
4.5 Case Law Concerning with Article 48………...39
4.6 Conclusion………...42
CHAPTER V THE ANALYZE CONTROVERSIES SURROUNDING ARTICLES 49 and 48 CISG ON THE BUYER’S RIGHT TO AVOID THE CONTRACT 5.1 Introduction to the issue………...43
5.2 Interpretation of “subject to article 49” and its Legislative History………..44
a) Literal approach……….45
b) When the seller’s right to cure the breach can be excluded?...47
c) The fair reading………..48
d) Conclusion……….49
5.3 Does Cure in relation to fundamental breach?...50
a) The legal theories……….51
b) Can cure always prevent a breach from being fundamental?...52
c) Case law………...53
d) The underlying principles of the CISG……….54
5.4 Conclusion………...55 CONCLUSION………57 BIBLIOGRAPHY………...59 TABLE OF CASES……….63
VI
厦门大学博硕士论文摘要库
1 CHAPTER I INTRODUCTION
1.1 Subject Background
The last two decades have seen a huge change in international trade with the emergence of the global economy. Sale of goods is the most popular form of international commerce. Sales of goods have been growing rapidly with the opening up of new markets in developing countries and, as a result, disputes between transnational contracting parties have increased in number, size and complexity. We all know that the increasing process in trade has brought existing problems between States, caused by different approaches to trade, to the fore. States have different expectations, standards and usages to which trade contracts are subjected. In a sales contract, whatever one party expects is connected closely to the performance obligations of the other party. So if one party does not perform its obligations, for whatever reason, in almost every case, the other party will be damaged. In International Trade when this kind of breach occurs by one of the party we will recall the specific provisions of CISG Convention. In the following I will discuss some issues related to the provisions of the CISG. In this thesis the term
“CISG” will be used interchangeably with the terms “Code” and “Convention”. There has
been a large volume of materials published on the United Nations Convention on CISG, with both advocates and opponents of the Convention fiercely debating the merits and shortcomings of the treaty as a means of furthering international sales transactions.
Some argue that the CISG is not suitable to the reality of these often complex transactions, proposing instead the use of domestic laws that would benefit buyers and sellers, because these laws are more certain and have had many years to develop as compared to the Convention. So let’s discuss how CISG provisions are acceptable.
1.2 The Objective of Study
In this study I am going to focus on the avoidance remedy of the buyer for the breached contract by the seller.1 Avoidance of the contract is normally the most extreme measure a party may take in response to a breach of contract. Under the CISG a buyer is granted certain remedies when a seller fails to perform one or more of his obligations under an international sales contract. Article 45 (1) CISG summarizes these remedies.
1 Sometimes the contract defines the remedies available for the buyer. However, this thesis will be concentrating on the situation where the default remedies under the CISG are applicable.
2
The main objective of this thesis is to analyze the claims using the specific area of the buyer's right to avoid as envisaged in Articles 49 and 48 CISG which states about the seller right to cure the breach and the difficulties of interpreting the ambiguous criteria laid out in these provisions. . Moreover, this thesis is to investigate whether the remedial rules of the CISG have proven to be effective by ensuring predictable decisions in domestic laws. I believe this provision to be key to the Convention's success, the reason for this being business people require certainty and predictability in their transactions when seeking to avoid the contract. Because there are some issues that domestic jurists are often wary of unfamiliar concepts in international documents. They may rightly fear that the originality of the concepts will lead to divergent interpretations in domestic courts. They may have difficulty in identifying the exact content of the law due to its newness and lack of interpretation. Upon examining these provisions and the given case law under it, we will be able to discern the rationale behind the decision making, specifically how have the tribunals interpreted its wording and what burden needs to be proven to declare the contract avoided. These findings will have a significant impact on how the CISG is viewed particularly by different sectors of the (product) market. Trietel for example argues that the CISG is not capable of dealing with standard types of international sales specifically FOB 2 and CIF 3 contracts.4 This writer advances the proposition that the Convention cannot be deemed to be inappropriate or inadequate in certain areas without any analysis of the existing case law. In examining the relevant case law, I will look at how the CISG has coped with these different areas to determine if indeed it is a flexible instrument as proclaimed by its advocates. The analyze will be extended with a focus on to make some draw comparisons with other major bodies of law and examine the jurisprudence of both civil and common law countries to determine how, if at all, this has influenced the decision making process.
Additionally, I will examine in what situations the buyer has the right to avoid the contract and when this right can be extended or limited. In that regard it should be noted that this thesis also focuses on the main situation where the seller is in current breach of his obligations after the date of delivery has passed. The main rule under the CISG is outlined in Article 49(1) (a) which states that the buyer is only entitled to avoid the contract when there is a fundamental breach. So
2 Free on Board
3 Cost, Insurance, Freight
4 Alastair Mullis (1998). Avoidance for Breach under the Vienna Convention; A Critical Analysis of Some of the Early Cases. Andreas & Jarborg eds, Anglo-Swedish Studies in Law. Lustus Forlag, pp 326-355 Available from: <http://cisgw3.law.pace.edu/cisg/biblio/mullis1.html> Taken from: Benjamin on Sales (Sweet & Maxwell, 5th edn, 1997), at 18-004
3
“fundamental breach” what does it mean? I will discuss this in next chapters. This right can be extended to some types of non-fundamental breaches where the buyer fixes what is usually referred to as a Nachfrist. Nevertheless, this right may also be limited by the seller’s right to cure the breach according to Article 48 of CISG. Therefore, there will be situations where more than one of them is applicable at the same time. The question is: How do these rules interact and does one of them take priority? In the following, one of the most complicated interaction of articles (49 (1) (a) 48 (1) will be analyzed too.
1.3 Conclusion
One might ask, "Why the need for the Convention? Before the enactment of the Convention, parties would concede to a foreign country's law to govern their agreement. This, however, was not always feasible. For example, the difficulties of reaching agreement with foreign parties on choice of law issues, or the problems of proof of foreign law in domestic and foreign courts.5 It has been argued that the Convention offers parties a useful compromise in that it may decrease the time and legal costs otherwise involved in research of foreign laws, and it will have a degree of familiarity to both parties, thus putting each on equal footing with the other with no unfair advantage to either party.6 These claims are potentially contentious as it is questionable whether the CISG has fulfilled the purpose of making international sales transactions more certain, efficient, and less costly. This thesis will examine the validity of these claims when analysis of the case law is carried out later on.
We now have a better understanding of the issues and controversies surrounding the Convention. The next part of this study will focus on one particular part of the Convention, and will examine its ambiguous meanings, and attempt to engage the issues surrounding its provisions to determine if the CISG has indeed been successful in facilitating the complex environment of international sales.
5 Anthony VanDuzer, 'The Adolescence of the United Nations Convention on Contracts for the International Sale of Goods In
Canada' Available at <http://www.yorku.ca/osgoode/cisg/writings/vanduzerone.htm>
6 See id
4 CHAPTER II THE GROUND FOR THE RIGHT OF AVOIDANCE BASED ON
FUNDAMENTAL BREACH 2.1 Introduction
Many have hailed the Convention as a success, as it has received the one of the largest number of ratifications of any international treaty. However, there is a contention that not all contracting parties are keen to accept uniform substantive law, consequently they will expressly opt out of the CISG, choosing instead to apply domestic laws which are more conducive to their commercial needs and provide some measure of predictability.7
This chapter seeks to analyze one of the most controversial issues within the Convention, and indeed it is one that has important implications for the area of international sale of goods. When one thinks of an international commercial contract, several important legal issues immediately comes to mind, for instance, what are the rights and obligations of the seller and buyer, and if these obligations are breached or rights impeded, what options available to the non-breaching party? The breach of contract under the CISG is categorized into two categories: the fundamental breach and the non-fundamental breach.8 The different categories of breach entitle the injured party to different remedies: the fundamental breach gives the right to avoid the contract, to require the substitution of the goods or to claim damages; and the non-fundamental breach gives the right to require specific performance, e.g., by the repair of or price reduction of the goods, or to claim damages. The analysis of the categorization of the breach of contract in this chapter builds a foundation for studying the remedies for breach of contract in the whole thesis. In this chapter some early Chinese cases decided under the CISG, are examined to see whether the categorization of breach in the CISG ensures the predictability and consistency of the remedies awarded by the Chinese Courts.
2.2 Buyer's Right of Avoidance
The main focus of this chapter is to analyze Article 49(1) (a), the right of the buyer to avoid the contract if the seller fails to perform any of his obligations, thus amounting to a fundamental
7 Anthony VanDuzer, 'The Adolescence of the United Nations Convention on Contracts for the International Sale of Goods In Canada' Available at <http://www.yorku.ca/osgoode/cisg/writings/vanduzerone.htm>
8 CISG Article 25
5
breach of contract. The notion of what constitutes a fundamental breach under the CISG must
be identified, so that the buyer, when faced with a breach of obligations by the seller, can be fully aware of what his rights are. Let’s analyze: Paragraph (1) a) of Article 49 says “the buyer
may declare the contract avoided: “if the failure by the seller to perform any of his
obligations under the contract or this Convention amounts to a fundamental breach of contract;
Here (1) there are two conditions under which the buyer may declare the contract avoided; 1) if
the non-performance of any of the seller's obligations 2) which amounts to a fundamental
breach. What is fundamental breach? How we determine whether breach is fundamental or not?
2.3 The Concept of Fundamental Breach
The origins of fundamental breach can be found in ULIS Article 10,9 which was drafted with an aim to prevent avoidance from inconsequential contractual breaches.10 Article 25 of the CISG categorizes the breach of contract according to whether the breach is fundamental. The concept of ‘fundamental breach’ is of essential importance to the remedial system,11in that different categories of breach are remedied with different consequences under the CISG, i.e. the avoidance of contract. The Convention attempts to define the concept of fundamental breach under the provisions of Article 25, which states:
"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 circumstances would not have foreseen such a result."
After reading this, one is confronted by a number of terms that are vague and ambiguous in their meaning, and for which the wording of the Convention offers no further elucidation. This writer is concerned with what Bonell states as, "Parties who do not want to be bothered with esoteric phraseology exclude the CISG altogether or derogate from certain provisions."12 If indeed
9 "For the purposes of the present Law, a breach of contract shall be regarded as fundamental wherever the party in breach knew, or ought to have known, at the time of the conclusion of the contract, that a reasonable person in the same situation as the other party would not have entered into the contract if he had foreseen the breach and its effects." 10 C.M. Bianca and M.J. Bonell (1987) p. 206
11Franco Ferrari, ‘Fundamental Breach of Contract Under the UN Sales Convention – 25 Years of Article 25 CISG’,
25 Journal of Law and Commerce, (Spring 2006) 489-508 [‘Franco Ferrari’]
12 C.M. Bianca and M.J. Bonell (1987) p. 209
Degree papers are in the “Xiamen University Electronic Theses and Dissertations Database”. Full texts are available in the following ways:
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