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1
Lundgren, Lisa. "The United Nation's Convention on Contracts for the International Sale of Goods : Why is it being excluded from International Sales Contracts?" Thesis, Internationella Handelshögskolan, Högskolan i Jönköping, IHH, Rättsvetenskap, 2014. http://urn.kb.se/resolve?urn=urn:nbn:se:hj:diva-23882.
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The development of the United Nation’s Convention on Contracts for the International Sale of Goods (CISG) started at the beginning of the 20th century in order to provide a uniform legal regime for international sales contracts. The development started because of a belief that a uniform international sales convention would contribute certainty in commercial trade and decrease transaction costs for the contracting parties. The Convention was signed in Vienna 1980 and came into force in 1988 after securing the necessary number of ratifications. The CISG is automatically applied to international sale contracts in certain given situations but the contracting parties are free to exclude the Convention as applicable law in favour of another regulation. As of today, more than 25 years after the CISG came into force, the Convention is commonly being excluded as the governing law of international sales contracts. By studying surveys and academic writings, certain factors can be derived as reasons prior to an exclusion of the CISG. The factors can be referred to as unfamiliarity, time and costs, negotiation strength and standard form contracts or standard terms. Regarding unfamiliarity, the importance given to the Convention in law faculties within the signatory states, together with time and costs attributed to a familiarization process, seems to play an important role. Moreover, the Convention is associated with problems regarding a non-uniform interpretation of the Convention’s provisions within the national courts and arbitral tribunals, as well as regarding its incompleteness, meaning that there are gaps that need to be filled by national law. These problems affect the Convention’s ability to provide potential users with legal certainty and predictability, which in turn may affect the familiarity with the Convention and hence have an impact on an exclusion of the CISG.
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Zhang, Mingjie. "Conflict of laws and international contracts for the sale of goods : study of the 1986 Hague convention on the law applicable to contracts for the international sale of goods : a Chinese perspective /." Orléans : Paradigme, 1997. http://catalogue.bnf.fr/ark:/12148/cb36171693j.
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Al-Janabi, Mohammed Qasim Kareem. "Fundamental breach in international commercial contracts in the CISG, English and Egyptian law." Thesis, Glasgow Caledonian University, 2014. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.687422.
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The main purpose of the research is to investigate and analyze the concept of fundamental breach of contract in international commercial contracts, and how its inclusion in Iraqi civil law can promote a more effective approach to contractual disputes between Iraqi companies and international partners. Additionally, it aims to raise awareness of the practical value of the application of the concept of fundamental breach in managing contractual disputes involving common and civil law, and ultimately provide a valid contribution to academic knowledge that promotes enhanced understanding of this concept within the different legal systems at a global level. The research method adopted is theoretically comparative in nature and compares the concept of fundamental breach of contract from the perspectives of the United Nations Convention's guidelines on Contracts for the International Sale of Goods 1980 (referred to hereafter as the CISG), English (Common) law and Egyptian (Civil) law. The study is based on the following research questions: i) reasons for the numerous cases of avoidance of international commercial contracts in Iraq due to a fundamental breach of terms; ii) The elements that constitute a 'fundamental breach' of contract; iii) Which legal systems could provide a comprehensive framework of reference to compare the different processes applied in breach of contract in selected case studies, to determine which, if any, is more effective in keeping contracts 'active'. iv) If the outcome of the comparisons could be applied more universally, in cases of arbitration in international commercial contracts, to bridge the differences in individual laws of the countries involved. The concept of fundamental breach is examined in-depth, including its origins, development, application and effectiveness in maintaining the active life of international commercial contracts. A comparison of its application is made within three different legal systems and the study concludes with a commentary on the outcomes of the comparative research, including any limitations and implications for international sales contracts involving different legal systems. Finally, recommendations are made, both for the Iraqi legislature and for future research. The key outcomes are that the CISG rules regarding fundamental breach appear to be more successful in upholding the validity of international commercial contracts than Common or Civil law. This can be attributed to the way in which the CISG tailored the concept of fundamental breach. To date, it has been ratified by 83 countries. Not only are its principles rooted in the two primary law systems (Common and Civil), but they are also significantly influenced by the doctrinal concepts that vary considerably across different national law systems. This suggests the CISG offers a greater degree of flexibility and harmony across the legal systems, and does not require any court order or ruling in instances of contract avoidance. Indeed, its greatest success lies in the flexibility of its principles due to the additional terms it provides in promoting the life of the contract; namely: additional period of time, partial avoidance, anticipatory breach and instalments contracts. There are limitations, however, despite the CISG rules providing a degree of flexibility. The definition of fundamental breach given in Art.25 is vague due to the generality of the terminology used by the CISG drafters. Unlike the trend of the 1998 Principles of European Contract Law and the 1994 UNIDROlT Principles of International Commercial Contracts, no examples are given to provide guidance on the exact meaning of the term. It is also noticeable that the CISG's notion of fundamental breach is more common law oriented. As a result, this may be a source of possible conflict in countries where civil law is adopted such as: Egypt, Iraq, Kuwait, Jordan, Libya, amongst others. The implications of adopting the CISG approach to determining fundamental breach in international commercial contracts are that contractual parties could incur delays and subsequent financial losses while disputes involving interpretation of its rules are resolved. Nevertheless, CISG principles governing fundamental breach are increasingly popular as the applicable law for international contracts, since they fulfill a primary goal of contract law to act in accordance with developmental requirements and changes. Contract law has to correspond to a growing economic need and be flexible in addressing emerging difficulties and shifting conditions. For this reason the CISG's principles are likely to continue to be adopted by contractual parties within the arena of International Trade. A necessary recommendation, however, concerns the terminology of the CISG rules on fundamental breach, which could benefit from being more specific in order to satisfy the demands of international commercial contracts that involve countries governed by common and civi11aw. In short, greater specificity is required in ascertaining the degree of seriousness, detriment, foreseeability and time of foreseeability in cases of contractual breach.Establishing an international body for resolving disputes stemming from the CISG is highly recommended. The given body could contribute greatly to reducing both the time and the cost resulting from such disputes. Reviewing the provisions of the CISG periodically is, therefore, highly advisable for making changes or establishing new rules applicable to the new developments in trade. The avoidance of contract in electronic trade contracts could represent an example where this would be necessary. However, more discussion is needed to elaborate on the development of the wording of the CISG principles in this respect. Finally, with regard to Iraq, its legislation would do well to make provision to include the concept of fundamental breach in accordance with the principles of the CISG. This reform is necessary since Iraq's existing law is no longer capable of properly addressing the special demands of international trade to ensure disputes are dealt with in a manner that is reliable, consistent, valid and fair to the contractual parties concerned.
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Koch, Robert 1965. "The concept of fundamental breach of contract under the United Nations Convention on contracts for the International Sale of Goods (CISG) /." Thesis, McGill University, 1998. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=20987.
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The concept of fundamental breach plays a crucial role within the remedial system of the U.N. Convention on Contracts for the International Sale of Goods (CISG), because the remedies available to the parties to a contract of sale depend on the character of the breach. The Thesis analyzes the concept. It canvasses the different approaches employed by scholars and courts in determining fundamental breach and examines whether they can be justified by the rules of interpretation under the CISG. This examination shows that none of the approaches can be applied to all potential situations of fundamental breach and that their concurrent application is likely to produce conflicting results. This Thesis introduces a new methodology, which is based on a single concept applicable in all circumstances. Such methodology would also provide greater certainty and predictability to international sales transactions as required by the needs of the business world.
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Koch, Robert. "The concept of fundamental breach of contract under the United Nations Convention on Contracts for the International Sale of Goods, CISG." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1998. http://www.collectionscanada.ca/obj/s4/f2/dsk1/tape11/PQDD_0028/MQ50940.pdf.
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Mahasneh, Nisreen. "The seller's obligation of delivery and conformity under a contract for sale of goods : the approaches of both English law and the Vienna Convention on Contracts for the International Sale of Goods 1980." Thesis, University of Aberdeen, 2001. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=166212.
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This thesis examines the seller's obligations of both delivery and conformity under a contract of sale. In this context, the related rules under both English law (represented by the Sale of Goods Act 1979) and the Vienna Convention on Contracts for the International Sale of Goods 1980 have been explored and compared with each other. It was initially necessary to indicate the importance of the Vienna Convention as a model for unifying the law of international trade. As well as indicating potential reasons as to why the UK is unconvinced that it should become a member of the Convention, as well as briefly examining the previous efforts that led to the conclusion of the Convention. While delivery is not defined under the Convention, the SGA considers it a voluntary transfer of possession. Moreover, delivery under English law takes place independently from the transferral of ownership. The matter of transferring the ownership in the goods is not however, dealt with under the Convention, and should be solved by reference to private international law. According to English law the delivery goods must meet the description in sale by description, correspond with the sample in sale by sample, and in all cases be of a satisfactory quality. The goods must meet a particular purpose where some conditions are met, as well as having to be in the right quantity. Art 35 of the Vienna Convention is considered a counterpart of the said rules. Should the seller however, attempt to exclude his liability regarding the said implied terms, such an attempt is subject to the UCTA 1977 and the Unfair Terms in Consumer Contracts Regulations, 1999. In another respect, delivery of the goods may take place actually or constructively, such as delivery by documents, or delivery through a carrier. Furthermore, there are particular rules that control the process of delivery, such as time, place and expenses connected with delivery. Obviously, the intention of the parties plays the essential role in determining these matters. One of the most important issues is the legal effect of the seller's breach of his obligation of conformity or delivery. Here, the buyer is entitled to a wide range of remedies, such as rejection of the goods and avoiding the contract of sale, specific performance, reduction of the price, or damages. The approaches here of both English law and the Convention are distinct in relation to some particular remedies, such as specific performance and reduction of the price.
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Malahlela, C. P. M. (Celia). "Should South Africa ratify the United Nations convention on contracts for the international sale of goods?" Diss., University of Pretoria, 2013. http://hdl.handle.net/2263/41579.
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The subject of this paper is whether South Africa should ratify the 1980 United Nations Convention on Contracts for the International Sale of Goods (the CISG). The CISG was enacted in an attempt to create a unified body of law to regulate the international transactions on sale of goods. Due to globalization, countries are trading with each other on a daily basis, and the need for a unified body of contract law has developed.Dissertation (LLM)--University of Pretoria, 2013.
am2014
Mercantile Law
unrestricted
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Marchand, Sylvain. "Les limites de l'uniformisation matérielle du droit de la vente internationale : mise en oeuvre de la Convention des Nations Unies du 11 avril 1980 sur la vente internationale de marchandises dans le contexte juridique suisse /." Bâle [u.a.] : Helbing & Lichtenhahn, 1994. http://www.gbv.de/dms/spk/sbb/recht/toc/278947883.pdf.
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Jaber, Hashem M. "The remedies regime under the United Nations Convention on Contracts for the International Sale of Goods." Thesis, University of Ottawa (Canada), 1990. http://hdl.handle.net/10393/5931.
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On January 1, 1988, The United Nations Convention on Contracts for the International Sale of Goods (The Convention) which was adopted in 1980, became law in contracting States. The Convention is based on The Uniform Law on the Formation of Contracts for the International Sale of Goods (ULIF), and The Uniform Law on International Sale of Goods (ULIS). As of May 30, 1989, nineteen countries had ratified The Convention. The Convention is the most important uniform law ever achieved in the field of sales law and is overwhelmingly supported by legal communities worldwide. This study seeks to introduce the remedies regime provided in The Convention. It examines the ways in which each remedy works, and its true meaning as determined by its drafting history. The study is divided into ten chapters including an introduction and conclusion in Chapters I and X respectively. Each chapter, II-IX, deals with a particular remedy: The remedy of avoidance; the remedy of damages; the remedy of specific performance; the requirements for, and effects of, the doctrine of exemption from liability; the remedy of suspension of performance; the remedy of price reduction; the seller's right to cure; the duties imposed on a party to preserve goods from loss or deterioration. In order to consider the ability of a given remedy to meet the needs of international sales participants, a comparison between the rules under the ULIS and the rules under The Convention is essential. It will help in discovering what improvements, if any, were achieved. Reference has also been made to a number of domestic laws, particularly those of Egypt, England and France. This is instrumental in helping to understand The Convention's remedy provisions because (a) there have yet to be any decided cases under The Convention, (b) some of The Convention's remedies are still unfamiliar to many domestic legal systems, (c) the laws of England and France are adopted in one form or another in most countries of the world and (d) Egypt exercised and still continues to exercise a dominant role in the Arab World. Since this influence has not yet been examined by Western academics, the discussion of Egyptian law should demonstrate the importance of The Convention to the developing countries of the world. The central part of this study shows how solutions may be attained in international sales transactions when The Convention is the governing law. Further, it concludes that courts in contracting states will apply The Convention and that business enterprises in these countries will base their international sales transactions on it. The author advances the thesis that courts, lawyers and commentators should interpret The Convention as an autonomous sales law in the light of its general principles and drafting history with the aim of developing a uniform international jurisprudence. The study concludes that The Convention will be accepted by business communities in developing and developed, Western and Eastern European countries alike. (Abstract shortened by UMI.)
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Yazdani, Majid. "The place of international sale of goods under Iranian law theory and practice /." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2000. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp02/NQ59160.pdf.
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Dupont, Alain. "Non-Pecuniary loss in commercial contracts: with special emphasis on the United Nations Convention on Contracts for the International Sale of Goods (CISG)." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4601.
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Felemegas, John. "The United Nations Convention on Contracts for the International Sale of Goods : Article 7 and uniform interpretation." Thesis, University of Nottingham, 2000. http://eprints.nottingham.ac.uk/11055/.
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The United Nations Convention on Contracts for the International Sale of Goods, 1980 ("CISG") creates a uniform law for the international sale of goods. However, textual uniformity is a necessary but insufficient step towards achieving substantive legal uniformity, since the formulation and enactment of a uniform legal text carries no guarantee of its subsequent uniform application in practice. This thesis therefore considers different approaches to the interpretation of CISG and evaluates their appropriateness for uniform international trade law, before advancing an interpretative approach based on the concept of internationality and generally acknowledged principles of commercial law, such as the UNIDROIT Principles. The analysis offered by the present writer is based on the examination of the nature, scope and function of Article 7 CISG, which expressly prescribes the direction that CISG's interpretation and application should follow and whose own interpretation will determine, to a large degree, the ultimate fate of CISG as a truly uniform code. Owing to its unique nature and limitations, it is necessary that CISG exist on top of a legal order that can provide doctrinal support and solutions to practical problems - such as gap-filling - in order to guarantee CISG's functional continuity and development without offending its values of internationality, uniformity and good faith, as expressed in Article 7(1) CISG and analysed in this thesis. It is the opinion of the present writer that CISG is, and must remain, a self-contained body of rules, independent of and distinct from the different domestic laws. Supported by analysis of the existing doctrine, as well as by case law, this thesis argues that the necessary legal backdrop for CISG's existence and application can be provided by general principles of international commercial law, such as those exemplified by the UNIDROIT Principles, which will, if adopted, render the textual reference in Article 7(2) CISG to private international law redundant - a positive step towards uniformity. The recourse to rules of private international law in the interpretation of CISG, even as a last resort, would represent regression into doctrinal fragmentation and practical uncertainty. The relevant textual reference in Article 7(2) CISG to such a method is the regrettable result of diplomatic drafting compromises and should remain inactive, since its activation would reverse the progress achieved by the world wide adoption of CISG as a uniform body of international sales law.
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Boghossian, Nayiri. "A comparative study of specific performance provisions in the United Nations Convention on contracts for the international sale of goods /." Thesis, McGill University, 1999. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=30286.
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The United Nations Convention on Contracts for the International Sale of Goods (CISG), adopted in April 11, 1980, is an attempt to unify rules of international trade. A large number of states that represent a variety of legal systems and of degrees of development have adhered to this Convention.As a result of the divergence of approaches and rules in these systems, several issues were debated during the negotiations, among others the remedy of specific performance.
This thesis examines the provisions regarding specific performance in the Convention in attempt to reveal the divergence of approaches between Common Law and Civil Law by means of a comparative study of the two systems.
The purpose is to assess the extent to which uniformity is achieved in the Convention. The study shows that the solution adopted regarding specific performance was a compromise that threatens uniformity to a certain degree.
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Kruisinga, Sonja A. "(Non-)conformity in the 1980 UN convention on contracts for the international sale of goods: an uniform concept? /." Antwerpen [u.a.] : Intersentia [u.a.], 2004. http://www.gbv.de/dms/spk/sbb/recht/toc/391512390.pdf.
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Anyamele, Uchenna Genevieve Millice. "Understanding the non-adoption of the United Nations Convention on Contracts for International Sale of Goods in Nigeria." Thesis, Durham University, 2015. http://etheses.dur.ac.uk/11318/.
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Globalisation has created new market opportunities for Nigerian traders, resulting in the growth of international trade in Nigeria. However, the opportunity of a wider market and a broader range of goods, means that Nigerian traders have to grapple with the complexities and transaction costs of foreign laws of different jurisdictions, which are a hindrance to trade. Given the above, there is a need for a uniform framework capable of regulating international trade transactions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is capable of resolving such conflicts and reducing transaction costs. However, the CISG has not been adopted in Nigeria. In light of this, the thesis considers the reasons for the non-adoption of the CISG in Nigeria. The thesis evaluates the Convention to determine if it is successful based on established criteria. Using the legal transplant theories, the thesis draws up a typology to determine whether the CISG can be considered a successful transplant in Germany and U.S. where it has been adopted. The thesis then examines the possibility, and effects of transplanting the Convention into Nigeria. The thesis also measures the level of awareness of the CISG in Nigeria and the disposition of the key legal actors towards the Convention, which serves as a determinant of adaptability and receptivity of the CISG in Nigeria, where it is adopted. The thesis adopts a doctrinal approach, historical, socio-legal and comparative research methodologies in undertaking the research.
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Malek, Roksana Janina. "Electronic Commerce in international trade law - especially under the UN COnvention on the use of electronic communications in international contracts 2006 and under the UN Convention on Contracts for the International Sale of Goods 1980." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4661.
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Mashonganyika, Tendai Julius. "International business law and legal certainty : the need for South Africa to assent to the convention of international sale of goods." Thesis, University of the Western Cape, 2015. http://hdl.handle.net/11394/5152.
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Magister Philosophiae - MPhilThis study seeks to provide answers on whether South Africa should ratify the Convention on Contracts for the International Sale of Goods (CISG), in the light of promoting legal certainty and International trade. In order to address the main objective, the mini-thesis will seek to answer the following questions: 1. Evaluate the current functional Legal Framework for international sale of goods in South Africa. 2. Establish and evaluate the motivations for both accession and non-accession, including an examination of possible advantages and disadvantages arising from each. 3. Determine if the adoption of the CISG by South Africa will be a solution to the current problems and uncertainties that exist under South African Law with regards to the international sale of goods?
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Mirambell, i. Fargas Miquel. "The Seller's right to cure under article 48 United Nations Convention on contracts for the international sale of goods." Doctoral thesis, Universitat Pompeu Fabra, 2017. http://hdl.handle.net/10803/404845.
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In principle, contracts are enforceable mutually beneficial agreements. In the event of a breach of contract, many national, supranational, and international legal systems—as well as recent European harmonization projects on private law—turn to cure regimes for the furtherance of such (assumed) contractually generated welfare. Namely, a mandatory Nachfrist-mechanism, a hierarchy of remedies, and debtor’s (in sales law: seller’s) rights to cure—before and after performance date—are normative devices intended to perform and preserve contracts, employing purportedly better, more cost-effective remedies for breach. Discussion of the utility of these legal institutions undisputedly belongs to the debate on modern contract law.
In this thesis, one of these cure-oriented devices is exhaustively analyzed: the seller’s right to cure after performance date under Article 48 CISG1. Whereas according to paragraph (1) the seller—provided that certain preconditions are met—can impose subsequent performance on the aggrieved buyer, under paragraphs (2-4) they can merely offer cure within a period of time, irrespective of any preconditions.
Article 48 CISG’s systematic setting, comparative law framework, origin, forerunners, preconditions for existence—general and specific—performance in practice, legal consequences—with regards to both the breach-of-contract regime and the availability of other remedies under the CISG—, and economic-behavioural implications are exegetically analysed. A particular focus is given to the allocation of contractual risk (see epigraph 3.2.9). Finally, conclusions are drawn at two levels: one concerning the CISG’s regime and another related to general Contract law.En principio, los contratos son acuerdos ejecutables mutuamente beneficiosos. En caso de incumplimiento del contrato, muchos sistemas jurídicos nacionales, supranacionales e internacionales—así como los recientes proyectos europeos de armonización en derecho privado—recurren a regímenes de subsanación para promover el bienestar que presumiblemente se ha generado con el contrato. A saber, un mecanismo de un Nachfrist obligatorio, una jerarquía de remedios y derechos del deudor (en compraventa: del vendedor) de subsanar—antes y después de la fecha de cumplimiento—son instrumentos normativos destinados a dar cumplimiento a los contratos y a preservarlos por medio de remedios, a priori, económicamente más eficientes. La discusión sobre la bondad y utilidad de estas instituciones indudablemente pertenece al planteamiento de un derecho de contratos moderno. En esta tesis se analiza exhaustivamente uno de estos instrumentos de subsanación: el derecho del vendedor a subsanar después de la fecha de entrega en virtud del artículo 48 CISG2. Mientras que de acuerdo con su párrafo (1) el vendedor –reuniendo ciertas condiciones previas– puede imponer una ulterior ejecución al comprador perjudicado; en virtud de los párrafos (2-4), éste solamente puede ofrecer una subsanación dentro de un plazo, pero independientemente de cualquier condición previa. Del citado artículo 48 se analizan exegéticamente el entorno sistemático, el marco en derecho comparado, el origen, los precursores, las condiciones previas para la existencia—generales y específicas—, su ejecución en la práctica, las consecuencias jurídicas—en el régimen del incumplimiento del contrato y en la disponibilidad de otros remedios bajo la Convención—así como las implicaciones económicas y conductuales. Se hace una contribución en relación con la asignación del riesgo contractual (véase infra 3.2.9). Finalmente, se extraen conclusiones a dos niveles: uno enfocado al régimen de la Convención y otro relativo al Derecho de contratos en general.
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Briskorn, Nina. "SOFTWARE CONTRACTS - A Comparative Legal Analysis on Software Transactions in Germany, the United States, South Africa, and under the Convention on Contracts for the International Sale of Goods." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4582.
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I will examine the treatment of software under the contract laws of the United States, Germany, and South Africa. Furthermore I will analyse the existing international uniform contract law, the Vienna Convention on the International Sale of Goods. I will illustrate how the different legal structures are leading to legal uncertainty in software transactions. Some of the issues being considered include whether software should be treated the same, regardless of the mode of delivery, whether software can fit into existing legal concepts and whether there should be a new body of contract law for software, nationally and internationally. The analysis will be restricted to software transactions for the permanent use against single payment, as it is the common mode of transaction and poses the greatest difficulties. The focus will be on standard software. This term is used to describe computer programs manufactured as copies designed for a range of application for an unlimited number of users as opposed to custom designed software that is specifically designed for the needs of the customer.
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Boghossian, Nayiri. "A comparative study of specific performance provisions in the United Nations Convention on Contracts for the International Sale of Goods (CISG)." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2000. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp03/MQ64262.pdf.
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Ahadi, Mona. "The United Nations Convention on Contracts for the International Sale of Goods : should developing nations such as Iran adopt the CISG?" Thesis, Durham University, 2013. http://etheses.dur.ac.uk/16/.
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The United Nations Convention on Contracts for the International Sale of Goods (CISG) was agreed in 1980. It has been ratified by 79 states. Despite a declaration in the Preamble that it seeks to contribute to the achievement of a New International Economic Order (NIEO) and to promote the development of international trade on the basis of equality and mutual benefit, a disproportionate number of developing countries, including Iran, have not ratified it. This thesis investigates the link between the NIEO and the CISG in relation to both the process of making international sales law and the substance of that law. While the broader remit of this thesis is to investigate why developing countries have failed to adopt the CISG, its primary focus is on Iran and whether it should adopt the CISG. To that end, the author will thoroughly study the advantages and disadvantages of ratification put forward by different nations. The position taken on the CISG by the United Kingdom will also be examined, since the UK has avoided ratifying the CISG. The purpose of this study is to show that Iran is not in a comparable position to the UK with regard to justifying its non-ratification. A comparison of the legal provisions of the CISG and their counterparts under Iranian law is the ultimate aim of this thesis. To better understand the Iranian law governing contracts of sale, a brief overview will be provided of Iran’s position in the world economy and of its legal environment. A careful investigation will then be conducted into the rights, duties, and remedies under the CISG and corresponding ones under the Iranian domestic law of sale. The study reveals that the rights and duties under the CISG resemble those under Iranian law. There are certain remedies in the CISG that do not have a counterpart in Iranian law. In such cases, the practical effect of these differences will be discussed. This will lead to the conclusion that Iran should adopt the CISG, and that is where the author’s fieldwork in Iran concerning the practical difficulties that may arise in implementing the CISG in Iran will be discussed in more detail.
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Ruiters, Jesse-Scott Ranier. "The impediment of non-conformity of goods, as an excuse under Article 79 of the United Nations Convention on contracts for the international sale of goods (CISG)." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/16868.
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Includes bibliographical referencesThe focal area of research is to ascertain, if whether the delivery of non-conforming goods, may or may not exist as an excusable impediment under Article 79 of the CISG? To determine this I have taken a different approach, than that, of the more conventional approach of critiquing the prevailing arguments. Essentially by analyzing the commentary of the relevant Advisory Council Members as well as other major contributors to the debate, of which one argument finds its basis on legislative intent of the negotiating parties (Travaux preparatoires) and the other being ascertained on a purely textual interpretation of Article 79. In order to reach a more precise conclusion, the author of this dissertation has funneled these two arguments through the different interpretative methods of treaties to discern which of the two arguments should be regarded as the more appropriate choice, which should be adopted. The existing question therefore would be, should we find a definitive conclusion with the fact that negotiators to the Sales Convention have decided that the delivery of non-conforming goods should not be excused under Article 79? Or should we side with a purely textual approach? Based on the phrase 'failure to perform any of his obligation', the words "any" and "obligation" would consequently include the obligation of the seller to meet the level of conformity as expressed under the contract according to Article 35 of the CISG.
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Georgiado, Katerina. "The transformation of the UN Convention on Contracts for the International Sale of Goods (CISG) into the UK legal order : two legislative models." Thesis, University of Derby, 2014. http://hdl.handle.net/10545/337282.
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A number of common law countries such as Canada, New Zealand and the United States have already successfully implemented the CISG. Furthermore, leading civil law countries such as Germany and the Scandinavian countries have also implemented the UN Convention there is reason to believe that if applied by the UK, it will prove beneficial. From a political perspective, the United Kingdom reflects a negative image as being a reluctant participant in international trade law initiatives. UK law does not have a special body of rules applicable to international sales; it has a body of common rules which are not devised for international transactions. This thesis suggests that the CISG may be transformed in the UK legal order through two legislative models: 1. À la carte Model The CISG is an ‘à la carte’ Convention; provisions may be selected from the CISG in the same way we choose a meal from a restaurant’s menu. This is the à la carte model. In other words, the UK when creating the Act transforming the CISG in the UK legal order may amend the UN Convention 1980 in order to adjust it to the UK legal system. In that sense, the UK may declare at the time of ratification, according to Article 92 of the CISG, to either omit part II or III of the Convention. This model comprises of three sub-models and if implemented will be an ‘add on’ to the Sale of Goods Act 1979. 2. Parallel Model In legislative terms, the CISG could exist parallel to the Sales of Goods Act 1979, parties wishing to enter into an international transaction may conclude a contract either on CISG terms or under the Sales of Goods Act 1979. In this model a CISG Act will be required. This model will satisfy both the traders who wish to employ modern law especially designed for international contracts and those who are rather conservative and prefer to employ the old and familiar Sales of Goods Act 1979.
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Aboukdir, Anwar. "The timing of the passing of property and risk under the English Sale of Goods Act 1979, the CISG and the Libyan law : the interplay between the principle of party autonomy and the default rule." Thesis, University of Stirling, 2016. http://hdl.handle.net/1893/25353.
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This thesis attempts to critically and comparatively analyse the issues relating to the passing of property and risk under the United Nations Convention on the Contract for International Sale of Goods (CISG) and English Law (SGA). The passing of property and risk plays a central role in the area of international legislation in relation to sales contracts. These elements can be the most significant components in contracts of sale between parties, whether in the international or domestic field. The reason is founded on their legal nature and the close relationship between them. The passing of property and risk has been a central issue for practitioners, judges and lawyers dating back to the Roman period and several ideas have been proposed to resolve it. Where the situation is different for contracts of sale in relation to the passing of property and risk, whether in the domestic or international field, it still creates many unresolved problems, because of ongoing changes in the field of modern commerce, which may contribute to unfair implications between the parties. It has been observed in this thesis that both English law and the CISG adopt the party autonomy principle, where the intention of the parties - whether in relation to the passing of property or risk - is the basic rule. However, the difference lies in the default rules. While English law involves default substitutional rules, which apply in cases where there is an absence of an expressed or implied indication regarding the intention between the parties, the CISG lacks such default rules regarding the transfer of property, which could be viewed as its main weakness, although the CISG does involve such provisions with respect to the transfer of risk. This thesis willdiscusses, the legal nature of the rules in relation to the passing of property and risk, and the role of the party autonomy principle, and the impacts and legal difficulties that might arise through the application of these rules, whether they are default rules or based on the party autonomy principle. It will also examine the legal gaps and weaknesses of both legal systems in an attempt to identify such legal difficulties and to find appropriate solutions and remedies.
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Oosthuizen, Beverley-Claire. "Rights, duties and remedies under the United Nations Convention on Contracts for the International Sale of Goods: an investigation into the CISG's compatibility with South African law." Thesis, Rhodes University, 2009. http://hdl.handle.net/10962/d1003206.
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This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
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Matinyenya, Patience. "South frica’s non-ratification of the United Nations convention on Contracts for the International Sale of Goods (CISG), wisdom or folly, considering the effect of the status quo on international trade." University of the Western Cape, 2011. http://hdl.handle.net/11394/2926.
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Magister Legum - LLMThe United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) seeks to provide a standard uniform law for international sales contracts. This research paper analyses the rationale behind South Africa’s delay in deciding whether to ratify the CISG, and its possible effect on trade with other nations. The CISG drafters hoped that uniformity would remove barriers to international sales thereby facilitating international trade. Ratification of the convention is only the beginning of uniformity; uniformity must then be extended to its application and interpretation. Not all countries have ratified the Convention yet they engage in international trade in goods: this state of affairs presents challenges since traders have to choose a national law that applies to their contract where CISG does not apply. This takes traders back to the undesirable pre-CISG era. On the other hand, those States that have ratified the convention face different challenges, the biggest one being a lack of uniformity in its interpretation. The problem of differing interpretations arises because some CISG Articles are vague leading to varied interpretations by national courts. Further, the CISG is still largely misunderstood and some traders from States that have ratified CISG exclude it from application. South Africa can only ratify an international instrument such as the CISG, after it has been tabled before Parliament, and debated upon in accordance with the Constitution. CISG’s shortcomings, particularly regarding interpretation, make it far from certain that CISG would pass the rigorous legislative process. Nonetheless, the Constitution of South Africa requires the South African courts and legislature to promote principles of international law. The paper, therefore, examines, whether the Legislature has a constitutional obligation to ratify CISG. South Africa’s membership of the WTO requires that it promote international trade by removing trade barriers. It is, therefore, vital for South Africa to be seen to be actively facilitating international trade. Even though the trade benefits which flow from ratification are not always visible in States that have ratified the CISG, there is some doubt whether South Africa can sustain its trade relations without ratifying the CISG. The paper shows that the formation of contracts under the South African common law is very similar to formation as set out under Part II of the CISG and if the CISG were to be adopted in South Africa, no major changes would be needed in this regard. International commercial principles as an alternative to the CISG still require a domestic law to govern the contract and would, therefore, leave South African traders in the same position they are in currently, where their trading relations are often governed by foreign laws. Ratifying CISG would certainly simplify contract negotiations particularly with regard to governing law provisions. Overall the advantages of ratification for South Africa far outweigh the shortcomings of the CISG, and ratification will assist in ensuring that South African traders get an opportunity to enter the international trade arena on an equal platform with traders from other nations.
South Africa
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Yang, Fan. "Barriers to the application of the United Nations Convention on Contracts for the International Sale of Goods (1980) in the People's Republic of China." Thesis, Queen Mary, University of London, 2011. http://qmro.qmul.ac.uk/xmlui/handle/123456789/2483.
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The meteoric growth in the economy of the People’s Republic of China (PRC), the success of the PRC’s increasingly vast participation in international trade and commerce could be viewed as resting at the intersection of three bodies of law: PRC Contract Law, the United Nations Convention on Contracts for the International Sale of Goods (CISG), and the UNIDROIT Principles of International Commercial Contracts (UPICC). If these three sources of law are not properly understood or correctly applied, their interplay can undermine uniformity goals that are at the heart of modern efforts to create an international legal regime on which buyers and sellers can, or must, depend. Further, these modern efforts often struggle against historical influences and biases of local law, courts and arbitration tribunals. These tensions are arguably felt most acutely in the PRC today, which, because of its burgeoning growth and enormous contribution as supplier of goods to the world’s developed and developing nations, stands to suffer if its internal law cannot be reconciled and applied consistently with international rules of law on contracts for international sales as reflected in the CISG and the UPICC. This research seeks to identify what barriers that the application of the CISG has faced and continues to face in the PRC. It examines those barriers arise from traditional understandings of contract law in the PRC and the attitudes of the PRC jurists and legal practitioners towards international uniform sales law instruments. It will put forward a number of proposals for overcoming those obstacles to the application of the CISG in the PRC, including the Hong Kong Special Administrative Region (as part of the PRC since 1997) and Macau Special Administrative Region (as part of the PRC since 1999), and Taiwan, whose political and legal status remains contentious.
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Bertotti, Daniela. "A Convenção de Viena sobre contratos de compra e venda internacional de mercadorias e o papel do Estado no projeto de uniformização do Direito Privado Internacional." Pontifícia Universidade Católica de São Paulo, 2017. https://tede2.pucsp.br/handle/handle/19839.
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The present study aims at analyzing the United Nations Convention on Contracts for the International Sale of Goods (CISG) by examining most thoroughly the different interpretations of its text on the light of several western legal traditions. This analysis of the implications of such different interpretations will give rise to a discussion on the level of interpenetration among different legal systems. This, in turn, leads to an analysis of the impact of the conditions imposed by the Convention on its interpretation, which is considered a selfcontained autonomous ruling within the text of the Convention. As can be seen from a historical overview of the matter, the pursuit of unified regulations governing the international purchase and sale of goods is precisely the result of trade practices and of the consolidation of customary laws and principles. This thesis is thus based on the dynamics of this unifying process. The analysis will focus on its innovative feature of a consonant interpretation; an important structural element which may determine the success or failure of the text of the Convention when observed in different legal environments. It will be taken into consideration the role of the relation between governments and their institutions established with International Organizations, as well as that of the need for predictability when signing international agreements. Therefore, elements such as sovereignty and globalization are essential for a proper understanding of the impacts of this Convention in international law, namely, international trade laws
O objeto de estudo da tese ora apresentada versa sobre a Convenção de Viena sobre Compra e Venda Internacional de Mercadorias, conhecida pela sigla em inglês CISG. O escopo de análise visa enfoque especial na interpretação do texto convencional, tendo em vista as diversas tradições jurídicas ocidentais. Da análise das implicações acerca da interpretação, depreender-se-á o grau de interpenetração entre os sistemas jurídicos, analisando o impacto das condições de interpretação delimitada pela Convenção, considerada regramento autônomo e autocontido no texto convencional. A busca pela unificação de normas que disciplinem a relação de compra e venda internacional é vislumbrada no estudo da historiografia como um dado decorrente das próprias práticas comerciais e na consolidação de regras e princípios de caráter consuetudinário. A tese é estruturada com base na dinâmica da unificação acerca das normas a respeito do comércio internacional, consubstanciado o principal ponto de análise de sua inovação na interpretação uniforme como ponto importante para o sucesso ou o fracasso do texto convencional quando da sua aplicação dentro dos diversos ambientes jurisdicionais. Reputar-se-á como relevante o papel do Estado e das suas instituições na relação com as Organizações Internacionais e a necessidade da previsibilidade dentro das relações contratuais no campo internacional. Assim, elementos como soberania e globalização são necessários para a correta apreensão dos impactos de referida Convenção no campo do direito internacional, notadamente o direito do comércio internacional
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Jafarzadeh, Mirghasem. "The buyer's remedies for seller's non-conforming delivery : a comparative study under English law, the 1980 UN Convention on Contracts for the International Sale of Goods and Shi'ah law." Thesis, University of Sheffield, 1998. http://etheses.whiterose.ac.uk/3461/.
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The purpose of the thesis is to examine Shiah law, as an undeveloped systen-4 in order to identify if it could be applied to modem sale transactions. The focus is on remedies in which Shiah jurists have done a great deal of work. The subject is first examined under English law and the UN Convention on Contracts for the International Sale of Goods (as two developed systems) to identify the issues which have to be dealt with and then under Shiah law in depth. An extensive examination shows that current Shiah law suffers from substantive gaps and uncertainty. It is suggested that the current situation is due to lack of applying an efficient methodology. Instead of dealing with the legal rules in respect of concrete issues, Shiah jurists tend to deal with traditional as well as hypothetical cases to derive further detailed rules. To present a sensible picture of this system, it is suggested that the law should be analysed in the light of studying developed systems. Relying on this method, attempts are made to systematise the relevant rules and answer the various questions these two modem systems deal with. Shiah law is then compared with English law and the Convention to highlight the existing gaps in Shiah law and to assess how it could be applied to modem sales. Comparative assessment of the three systems shows that while in English law primacy is given to damages and specific performance is rarely awarded, the Convention gives significance to both. Similarly, English law seems to permit termination more easily than the Convention. But unlike the Convention, it does not recognise price reduction as a separate remedy. Overall, it is shown that Shiah law is closer to the Convention than to English law. It attaches significance to both damages and specific performance, and entitles the buyer to reduce the contract price, but permits termination more easily than the Convention and less easily than English law. It is concluded that because of substantive gaps and uncertainty in current Shiah law it is not an appropriate system to govern modem sale transactions, but if the suggested methodology is applied it could be developed and fill in the gaps.
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Bolotov, Ilya. "Cena a platební podmínka v kupní smlouvě." Master's thesis, Vysoká škola ekonomická v Praze, 2007. http://www.nusl.cz/ntk/nusl-5321.
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Due to important differences and risks in international trade, firms pay due attention to the legal background of their contractual relationships. To do this, they use a variety of contracts, the most important of which is the contract of sale. In this paper I will analyse two requisites of a contract of sale: the price and the terms of payment. The first part of the paper deals with the examination of the regulation of these requisites in the law of five selected countries and in the international law (the United Nations Convention on Contracts for the International Sale of Goods). In the second part I will compare two concrete contracts of sale and assess their quality. The last part is then devoted to the definition of the main problems of the examined regulation and to the search of their possible solutions.
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Kadiri, Magret Olufisayo. "An analysis of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and its relevance to developing countries. A case study of the Southern African Development Community (SADC)." Thesis, University of the Western Cape, 2007. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_2345_1260193171.
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This research paper aims to understand and analyse the CISG, its history, scope and structure, and to evaluate its impact on SADC.The main ideas that this paper will consider are: what is the CISG
Its history, scope and structure
Its impact on developing countries
Its relevance to developing countries within SADC
and How the implementation of the CISG improved these developing countries within SADC.
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Harmáčková, Iva. "Platební podmínka v kupní smlouvě." Master's thesis, Vysoká škola ekonomická v Praze, 2009. http://www.nusl.cz/ntk/nusl-15928.
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This thesis makes an analysis of price and terms of payment in the sales contract. Both elements are conceived in terms of legal framework and in terms of importance for the parties to an international sales contract. The theoretical part deals with the role of the sales contract in business relations, structure and legal norms of the international sales contract. The practical part includes an analysis of specific international sales contract.
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Pohl, Toralf. "The 'Battle of the Forms' under the 1980 United Nations Convention on Contracts for the International Sale of Goods: A Comparison with the UNIDROIT Principles, the European Principles and some domestic laws." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4537.
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陳科汝. "CISG中的風險轉移問題研究." Thesis, University of Macau, 2011. http://umaclib3.umac.mo/record=b2537435.
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Korotana, Mohammed Shabir Blahi. "The concept of good faith and the failed negotiations : a comparative study of the rules of the English law, American law and the U.N. Convention on Contracts for the International Sale of Goods." Thesis, London School of Economics and Political Science (University of London), 1994. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.320956.
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This thesis deals with the concept of good faith and the failed negotiations. It is a comparative and analytical study which comprises of the analysis of the rules of three legal systems namely English law, American law and the U.J. Convention on International Sale of Goods. The notion of good faith is similar to the doctrine of cu2pa-icontra. bendo in civil law. This means that damages are recoverable against the party whose 'blameworthy conduct' during negotiations for a contract has caused it to be invalid or prevented its completion. It is a general phenomenon that there is no general duty to negotiate in good faith in English and American law. Relief for bad faith negotiations is available only after the negotiations have resulted in a contract, where a party's conduct during negotiations has caused it to be invalid. This situation provides adequate remedies under the established concepts e.g. fraud, misrepresentation, duress, undue influence and unequal bargaining power. However, this study deals only with the situation where the negotiations fail to result in a contract, because of the bad faith behaviour of either of the parties during the negotiations. The research suggests that in such a situation relief may also be available through the various notions of good faith applicable during the negotiating stage, i.e. equitable estoppels, proprietary estoppel, promissory estoppel, fraud and misrepresentation in the context of the law of tort, restitution and implied-in-fact contract. Under the American law it is comparatively easier to persue these goals because of the acceptability of the notions of contract to contract, contract to negotiate and the unified theory of estoppel, whereas English law is still unwilling to accept these ideas. Under the doctrine of equitable estoppel obligations may be created on the basis of detrimental reliance which may in certain cases be equal to the expectation interest and in the others to the out-ofpocket- expenses, depending upon the circumstances of the case. The rationale behind the doctrine of promissory estoppel is similar to that of proprietary estoppel. Both are equitable estoppels. Therefore, it has been argued that there is not any logical or practical reason why promissory estoppel should not also be capable of creating a cause of action. Such a unified concept of estoppel would not cause the demise of the bargain theory. Consideration will still remain an essential ingredient in a contract; but alongwith this a new unified theory of estoppel may be introduced to deal with those cases where bargain theory does not apply. Thus, the creation of a cause of action on the basis of promissory estoppel would merely be an addition to the existing bargain theory. This argument has been accepted by some American courts and the other common law countries e.g. Australia, Canada and India. English law, particularly in lower courts, has also tempted some advances in this direction. The U.L Convention does not generally obligates the parties to negotiate in good faith, Article 7(1) states that Nj the interpretation of this Convention regard is to be had to ... the observance of good faith .... However, Article 16(2) like the Restatement (Second) of the Contract incorporates the notion of promissory estoppel with a wider scope of its application. It seems that Article 16(2) may be a useful tool in the context of duty to negotiate in good faith. This study concludes that although English and American law provide some notions 1 of good faith, it is advisable for these systems to introduce either a unified theory of estoppel or a general principle of good faith negotiations (Culpa-ln-Contrabendo) which would achieve a higher standard of behaviour from the parties.
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Singh, Lachmi. "The United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) : an examination of the buyer's remedy of avoidance under the CISG : how is the remedy interpreted, exercised and what are the consequences of avoidance?" Thesis, University of the West of England, Bristol, 2015. http://eprints.uwe.ac.uk/25534/.
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This thesis examines the interpretation and application of the buyer’s remedy of avoidance under the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG). The main research question focusses on ‘How is the remedy established, exercised and what are the consequences of avoidance?’ The aim of the examination is to determine whether the remedy is suitable for international sale of goods transactions. For the purposes of this thesis ‘suitable’ is defined as meaning that the remedy must be capable of being applied to contracts for different types of goods and contracts commonly bought and sold in international trade. Additionally the remedy must one that the parties can lawfully establish and exercise swiftly and with certainty. Using doctrinal and comparative research strategies the thesis responds to criticisms that the remedy is overly ‘complicated’, the reason being that certain rules only apply to specific types of breaches; that the exercise of the remedy requires giving notice; that the buyer needs to fix an additional time for performance; and that the remedy is limited by the seller’s right to cure the breach. The most serious criticism is that the remedy’s main requirement of ‘fundamental breach’ is too strict making it difficult for the parties to establish. The thesis negates these contentions arguing instead that if the CISG’s mechanisms for interpretation are correctly applied by the courts the buyer’s remedy of avoidance could be exercised swiftly and with certainty. The mechanisms used to support this position are: art 6 (party autonomy), art 7 (general principles), art 8 (parties’ conduct and intentions) and art 9 (usages). The thesis will respond to academic commentators who argue that English law would provide the buyer and seller with more certainty and swifter termination rights than the CISG. It will also examine the legitimacy of ‘soft law’ such as the UNIDROIT Principles 2010 as a method of filling in the gaps and ambiguities in the wording of the CISG.
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Osadchenko, Igor. "Risk Assessment of International Sales Contracts in Beverages Market." Master's thesis, Vysoká škola ekonomická v Praze, 2015. http://www.nusl.cz/ntk/nusl-264266.
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The aim of my thesis was to analyze and identify main types of risks and uncertainties, which can be faced by international companies. I also described main ways and methods of avoidance and minimisation of such risky situations. AB Inbev was chosen as an example since I was working in the branch of this company located in Prague, Czech Republic. This explains my concentration mainly on the market for beverages.
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Sewerin, Diana. "International product liability and uniform sales law." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2000. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp03/MQ64305.pdf.
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Vieira, Fabio Alonso. "O princípio da interpretação uniforme na Convenção de Viena sobre compra e venda internacional de mercadorias (1980): realidade, utopia e necessidade." Pontifícia Universidade Católica de São Paulo, 2017. https://tede2.pucsp.br/handle/handle/19831.
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This paper aims to demonstrate why the uniform application principle provided in CISG is, at the same time, real, utopic and necessary. Since the invasion of Rome by the barbarians there has not been a universal or uniform law, such as jus gentium. Thenceforth, in a legal pluralism environment, the world has been through moments of seeking for nationalism or the uniformization of the law. With the emergence of lex mercatoria and, more recently, with the advent of globalization, the world has become extremely dynamic and without barriers between the States. In this context, various schools of thought have risen advocating for a “global uniform Law” and, afterwards, given its impossibility, a uniform law for specific matters of substantive law. Then, the most successful uniform law of all times: CISG was drafted. Intending to be a uniform legal diploma, it is necessary for its provisions to be understood in a uniform manner. As the provided in article 7 of CISG. However, the interpretation of the provisions of the convention drawn up in a vague concept and in several official languages, ratified by States in different social, economic, political and religious backgrounds is a utopia. Although, this utopia is necessary to maintain limits and borders when the application of the legal provisions by the CISG interpreters. Without the established frame work by the utopic uniform interpretation, CISG would never reach its objectives and, most likely, would be dead
O presente trabalho tem por objetivo demonstrar que o princípio da interpretação uniforme inserido na CISG é, ao mesmo tempo, real, utópico e necessário. Desde a invasão de Roma pelos bárbaros não se tem mais um direito universal ou uniforme como o jus gentium. A partir daí, num ambiente de pluralismo jurídico, o mundo passou por momentos de busca pelo nacionalismo ou pela uniformização do direito. Com o surgimento da lex mercatoria e, mais recentemente, com o advento da globalização, o mundo tornou-se extremamente dinâmico e sem barreiras entre os Estados. Nesse contexto, surgem diversas correntes doutrinárias defendendo a tese de um “direito uniforme mundial” e, posteriormente, dada a sua impossibilidade, um direito uniforme para determinadas matérias do direito substantivo. É elaborada, então, a mais bem-sucedida lei uniforme de todos os tempos: a CISG. Para tentar ser um diploma uniforme, torna-se necessário que os seus dispositivos sejam interpretados de maneira uniforme. É o que dispõe o artigo 7 da CISG. Contudo, interpretar artigos da convenção redigida com conceitos vagos e em diversos idiomas oficiais, ratificada por Estados em diferentes momentos sociais, econômicos, políticos e religiosos é uma utopia. No entanto, essa utopia é necessária para manter limites e fronteiras quando da aplicação dos dispositivos legais pelos intérpretes da CISG. Sem essa moldura estabelecida pela utópica interpretação uniforme, a CISG jamais chegaria perto dos fins para os quais ela foi criada e, muito provavelmente, já estaria morta
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Brinkhof, Johannes J. Grosheide Frederik Willem. "Contracteren internationaal : opstellen aangeboden door collegae, oud-collegae, medewerkers, oud-medewerkers, promoti en promovendi aan prof. mr. F. Willem Grosheide ter gelegenheid van zijn afscheid als leerstoelhouder in het burgerlijk recht /." Den Haag : Boom, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/524515891.pdf.
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Oser, David. "The UNIDROIT principles of international commercial contracts : a governing law? /." Leiden : Nijhoff, 2008. http://opac.nebis.ch/cgi-bin/showAbstract.pl?u20=9789004167896.
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Park, Sung-Ho. "International sale of goods in electronic environment : comparative legal and practical research on the contract formation." Thesis, Queen Mary, University of London, 2007. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.499065.
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Coetzee, Juana. "INCOTERMS as a form of standardisation in international sales law : an analysis of the interplay between mercantile custom and substantive sales law with specific reference to the passing of risk." Thesis, Stellenbosch : University of Stellenbosch, 2010. http://hdl.handle.net/10019.1/5222.
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Thesis (LLD (Mercantile Law))--University of Stellenbosch, 2010.ENGLISH ABSTRACT: International sales contracts have very specific needs that stem from the multiplicity of legal systems which apply to such contracts. In addition to harmonised law, mercantile custom is able to address many of these needs. Mercantile custom represents usages which are clear, certain and efficient and are expected to be known and applied by merchants in a particular trade or region. To this extent mercantile custom fulfils an automatic harmonisation function. However, where a custom does not enjoy uniform application across all branches of trade, the harmonisation function of mercantile custom is limited, as is the case with trade terms. Trade terms reflect mercantile customs and usages which developed over a long time in order to simplify the trade in goods that are transported from one place to the other. They regulate the delivery obligations of the seller and buyer as well as associated obligations such as the passing of risk. Trade terms negate the need for elaborate contract clauses and appear in abbreviated form in contracts of sale. Although they provide a uniform expression of mercantile custom in a particular location or trade, the understanding of trade terms tend to differ from country to country, region to region or from one branch of trade to the next. The ICC INCOTERMS is an effort to standardise trade term definitions at the hand of the most consistent mercantile customs and practices. The aim of this study is to investigate the efficiency of INCOTERMS as a form of standardisation in international sales law. For purposes of the investigation the focus is limited to the passing of risk. Although national laws usually have a default risk regime in place, merchants still prefer to regulate risk by means of trade terms. This study will investigate the legal position in the case of FOB, CIF and DDU terms. An analysis of the risk regimes of a few selected national systems will show that each has their own understanding of these trade terms. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not refer to trade terms, but many commentators have concluded that the CISG risk rule is consistent with INCOTERMS. The study will discuss this in more detail. To determine the efficiency of INCOTERMS as a form of standardisation in international sales law, the study examines their characteristics, legal nature as well as their limited scope of regulation. Specific emphasis is placed on the interplay between the CISG and INCOTERMS and the possibility of some form of interaction and collaboration between the two instruments. It is concluded that collaboration between INCOTERMS and the CISG adds value to the international law of sales by increasing the efficiency of an international business transaction and thereby facilitating international trade.
AFRIKAANSE OPSOMMING: Internasionale koopkontrakte het spesifieke behoeftes wat voortspruit uit die veelvoudigheid van regstelsels van toepassing op so ‘n kontrak. Baie van hierdie behoeftes kan aangespreek word deur geharmoniseerde regsreëls in samehang met handelsgewoontes en –gebruike. Handelsgewoontes verteenwoordig duidelike, seker en effektiewe gebruike. Daar word dus van handelaars wat in ‘n bepaalde bedryf of streek handel dryf, verwag om van hierdie gebruike kennis te neem en hulle toe te pas. In hierdie konteks vervul handelsgebruike ‘n outomatiese harmoniseringsfunksie. Waar ‘n gebruik nie eenvormig toegepas word oor alle bedrywe heen nie, is die harmoniseringsfunksie van handelsgebruike egter beperk. Handelsterme bied ‘n tipiese voorbeeld hiervan. Handelsterme verteenwoordig bepaalde handelsgewoontes en –gebruike wat oor ‘n geruime tyd ontwikkel het ten einde handel in goedere wat van een plek na die ander vervoer word, te vergemaklik. Hulle reguleer die leweringsverpligtinge van die verkoper en koper asook ander verpligtinge wat met lewering verband hou, soos byvoorbeeld die oorgang van risiko. Handelsterme doen weg met lang en omslagtige kontraksbedinge aangesien hulle in die vorm van afkortings in die kontrak figureer. Alhoewel handelsterme ‘n uniforme uitdrukking van gebruike in ‘n bepaalde gebied of bedryf verteenwoordig, is dit egter so dat die inhoud van handelsterme van land tot land, streek tot streek of van een tipe bedryf tot die ander verskil. INCOTERMS is ‘n poging om die inhoud van handelsterme te standaardiseer aan die hand van die mees eenvormige handelsgewoontes en –gebruike. Die doel van hierdie studie is om die effektiwiteit van INCOTERMS as ‘n vorm van standaardisering in die internasionale koopreg te ondersoek. Vir doeleindes van die ondersoek word die fokus beperk tot die oorgang van risiko. Al het nasionale regstelsels gewoonlik ‘n verstek risiko-reël in plek, verkies handelaars steeds om risiko by wyse van handelsterme te reguleer. Die studie ondersoek die regsposisie in die geval van FOB-, CIF-, en DDU-terme. ‘n Analise van risiko-regulering in ‘n aantal nasionale sisteme toon dat elk hul eie betekenis heg aan die inhoud van hierdie terme. Alhoewel die Weense Koopkonvensie geensins na handelsterme verwys nie, voer verskeie kommentatore aan dat die Konvensie se risiko-bestel verenigbaar is met dié van INCOTERMS en sal hierdie aspek gevolglik in meer besonderhede in die studie aangespreek word. Ten einde die effektiwiteit van INCOTERMS te bepaal, word daar ondersoek ingestel na hulle kenmerke, regsaard en beperkte aanwendingsgebied. Spesiale klem word gelê op die wisselwerking tussen die Weense Koopkonvensie en INCOTERMS asook die moontlikheid van interaksie en samewerking tussen die twee instrumente. Die gevolgtrekking is dat interaksie tussen die Koopkonvensie en INCOTERMS waarde toevoeg tot die internasionale koopreg deur die effektiwiteit van die internasionale besigheidstransaksie te verhoog en gevolglik internasionale handel te bevorder.
Harry Crossley Fund
NRF Thuthuka Fund
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Ruangvichatron, Jumpita. "Breach of contract in international sale of goods : an evaluation of the 1980 Vienna Sales Convention and the 1994 UNIDROIT principles as compared with English law and the (US) Uniform Commercial Code." Thesis, University of Exeter, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.302569.
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Zralá, Lucie. "Mezinárodní kupní smlouva - nástroje regulace." Master's thesis, Vysoká škola ekonomická v Praze, 2011. http://www.nusl.cz/ntk/nusl-114392.
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The essay focuses on the issue of the international regulation of international sales contracts. It analyses the United Nations Convention for the International Sale of Goods and documents published by the International Chamber of Commerce and by other organisations active in harmonisation and unification of instruments of regulation of international sales contracts. So, the goal of the essay is to decide whether the documents help to remove the barriers of the international trade and whether the documents do not overlap the Convention.
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Nwafor, Ndubuisi Augustine. "Comparative and critical analysis of the doctrine of exemption/frustration/force majeure under the United Nations Convention on the Contract for International Sale of Goods, English law and UNIDROIT principles." Thesis, University of Stirling, 2015. http://hdl.handle.net/1893/21805.
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This thesis attempts to critically and comparatively analyse the doctrine of exemption/frustration /force majeure under the United Nations Convention on the Contract for International Sale of Goods (CISG) the UNIDRIOT Principles of International Commercial Contracts (UNIDROIT) and the English Law. The doctrine of exemption/frustration/force majeure is very important in the area of contract and commercial law, it is a doctrine deeply rooted in fairness and allows a party to be excused from performing an obligation in a contract if at the conclusion of the contract an inhibition beyond the foreseeable control of the party happens to render the performance of the contract impossible. However, it is not easy to effectively streamline this doctrine and properly determine its applications. It has been observed in this thesis that, the doctrines of exemption/frustration /force majeure are not exactly the same; this thesis explores in details severally and jointly the various differences and similarities in the interpretations and applications of these impossibility doctrines. For instance, the open and flexible use of words in the definition of this doctrine under the CISG and the UNIDROIT Principles left much to be desired. Thus, it is one of the succinct arguments of this thesis that couching international law in loose words will work against the uniformity of application of this law, due to the different interpretations national law courts will be subjecting it to. This among other issues retarded the growth and development of the doctrine of exemption and force majeure. Furthermore, English law stance on the doctrine of frustration which can be gleaned from both the Sale of Goods Act of 1979 and the Common law are far from being adequate and need to be updated. This thesis therefore incisively laid bare the applications, interpretations and way forward for the doctrine of exemption/frustration/force majeure under the legal instruments of focus of this work. The thesis also comparatively compares the relationship between the doctrine of frustration/force majeure/exemption and other related doctrines like mistake, termination, avoidance, risk, and hardship. The thesis is concluded with a Draft Model Frustration Clause (DMFC) which is an attempt to rise above the status quo doctrine of frustration in the extant laws and develop a frustration clause that will be able to provide answers to the many flaws that trail these laws.
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Paulmann, Steffen. "Wirksamkeit von Haftungsausschlüssen und -begrenzungen im deutsch-französischen Warengeschäftsverkehr : unter besonderer Berücksichtigung der UNIDROIT-Principles und der Principles of European Contract Law /." Frankfurt am Main [u.a.] : Lang, 2005. http://www.gbv.de/dms/sbb-berlin/481281568.pdf.
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Khoriaty, Rita. "Les principes directeurs du droit des contrats : regards croisés sur les droits français, libanais, européen et international." Thesis, Paris 2, 2011. http://www.theses.fr/2011PA020042.
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La comparaison des principes directeurs du droit des contrats dans les ordres internes (français et libanais), européen et international permet de déceler, d’une part, une convergence sur le plan de l’identification des principes directeurs du droit des contrats et, d’autre part, une divergence sur le plan de la mise en oeuvre de ces principes. La convergence se manifeste par le fait que les mêmes principes - à savoir les principes de liberté contractuelle, de loyauté contractuelle et de sécurité contractuelle - sous-tendent la théorie générale des contrats dans les trois ordres. Cette convergence s’explique par deux principaux facteurs : d’une part, un facteur logique à savoir le raisonnement par induction qui permet de dégager les principes directeurs du droit des contrats, et, d’autre part, un facteur politique en l’occurrence la concordance des objectifs généraux du droit des contrats dans les trois ordres. Quant à la divergence sur le plan de la mise en oeuvre des principes directeurs,elle se manifeste pratiquement par le renforcement, en droits européen et international,des principes directeurs de la liberté contractuelle et de la loyauté contractuelle ainsi que par l’aménagement du principe directeur de la sécurité contractuelle. Cette divergence a pu être expliquée par l’existence de besoins propres du commerce international. Toutefois, elle devrait plutôt être rattachée à l’influence de droits nationaux étrangers aux droits français et libanaisThe comparison of the guiding principles of contract law in French, Lebanese, European and international laws reveals on one hand a convergence in terms of identifying the guiding principles of contract law and on the other hand a divergence interms of implementing these principles.The convergence arises from the same principles - namely the principles of contractual freedom, contractual security and contractual “loyalty”2 - underlying the general theory of contracts in all three laws. This convergence is due to two mainfactors: firstly, a logical factor that is the inductive reasoning that allows extracting the guiding principles of contract law, and, secondly, a political factor based on the similarity of the general objectives of contract law in the three laws. As for the divergence in terms of guiding principles implementation, it is revealed through reinforcing in European and international laws, the guiding principles of contractual freedom and contractual “loyalty” as well as the adjustment of the guiding principle of contractual security. This divergence could be explained by the existence of specific needs of international trade. However, it should rather be related to the influence of foreign national laws different from French and Lebanese laws
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Ngo, Koy Hermine Odette. "La Convention de Vienne du 11 avril 1980 et la méthode conflictualiste." Thesis, Nice, 2014. http://www.theses.fr/2014NICE0015.
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L’élaboration d’un droit international à vocation mondiale n’est pas une entreprise aisée. Après l’échec des Conventions de la Haye de 1964, la Convention de Vienne du 11avril 1980 applicable à la vente internationale de marchandises érige un droit uniforme de la vente applicable à l’échelle mondiale et adapté aux besoins du commerce international. Œuvre de compromis, cette Convention apporte des améliorations aux lacunes des Conventions de la Haye dont elle s’inspire. Elle met en place un droit international de la vente basé sur la recherche du compromis, de la souplesse, de la clarté et de la justice contractuelle. Néanmoins, en dépit de ses améliorations, elle reste elle-même une œuvre lacunaire dont le succès est cependant indéniable. L’étude des rapports qu’elle entretient avec la méthode conflictualiste permet de comprendre les raisons de ce succès. Comportant des normes tout aussi bien issues de la pratique que des différentes traditions juridiques et économiques, notre étude met en lumière l’incomplétude de la CVIM et sa dépendance vis-à vis des règles du droit international privé. Elle met en relief la place de la règle de conflit de lois dans le comblement des lacunes tant internes qu’externes de la CVIM et apporte la confirmation qu’aucun droit international ne peut être effectif sans le concours des règles du droit international privé. Règles qui, sous la pression de la mondialisation et de la puissance de plus en plus croissante des pouvoirs privés économiques sont amenées à évoluer pour mieux correspondre aux besoins du commerce international. Il apparaît dans cette perspective que, le succès de la CVIM, loin d’être uniquement attribué à l’unification des règles matérielles qu’elle opère, est le fruit des évolutions de la méthode conflictualiste. Celles-ci passent par l’affaiblissement de la règle de conflit de droit commun à travers sa subordination à la volonté des parties et aux usages du commerce international. A cela s’ajoute la multiplication des conventions d’unification des règles de conflit à caractère substantiel, la règlementation des conflits de procédures, l’assouplissement des conditions de circulation des jugements étrangers et le développement d’un droit international privé communautaireOn a world basis, the elaboration of an international law is not an easy task. After the failure of the HAGUE’s conventions on 1964, the Vienna’s Conventions of april 11th, 1980 applicable for the international sales of goods establishes a uniform law suitable for international sales and adapted to the needs of international trade. Born out of a compromise, this Convention brings out improvements to the lacunas within the Hague’s Conventions. The Conventions puts into place an international law of sales based on az quest for compromises, flexibility, clarity and contractual justice. Nevertheless, in spite of its improvements, it remains a lacuna’s work whose success is still undeniable. The study of reports undertaken with the conflicting methods allows us to understand the reasons of its success. Adapting of norms issued from practice as well as from legal and economic traditions, our study brings into light the incompleteness of the CISG and its dependence in regard to the private international laws. It demonstrate the place of the conflict of law in filling up the CISG’s internal and external lacunas and confirms that, no international law can be effective without the assistance of the private laws. Rules, that under the pressure of globalization and the increasing powers of the parties of international trade are brought to evolve to correspond better to the needs of international trade. It so appear that, the success of the CISG, far from solely attributed to its unification of material rules is the result of the evolution of the conflict of law. It passes through the weakening of the common conflict rule through its subordination to the will of parties and the use of international trade. One can add the multiplication of substantial’s conflict law, the regulation of procedure’s conflict, the softening of the recognition conditions of foreign judgments, and the development of communal international private law
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Foerstl, Uli. "The general principles of good faith under the United Nations Convention on Contracts for the Internations Sale of Goods(CISG) - A Functional approach to theory and practice." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4611.
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