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International Sale of Goods Thashira Gunatilake LLB(Colombo), LLM(Auckland) Attorney-at-Law
Obligation of the Seller n Articles 30 -52 n In general, the seller must – q Deliver the goods that conform to the contractual description, q Hand over documents relating to the goods and q Transfer the property in the goods.
OBLIGATION 1 - Delivery of Goods A. Actual delivery - transfer of possession from one person to another B. Constructive delivery – the goods themselves are not delivered, but the means of obtaining possession of the goods is delivered.
OBLIGATION 1 - Delivery of Goods Place of Delivery n Express term n Incoterm n Implied term
Time for Delivery: Art. 33 q The seller must deliver the goods: A. B. C. If a date is fixed by or determinable from the contract, on that date; If a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date; or In any other case, within a reasonable time after the conclusion of the contract.
OBLIGATION 2 – The duty to hand over documents (Art 34) n If the seller is bound to hand over documents relating to the goods: Ø q He must hand them over at the time and place and in the form required by the contract. Documents relating to the goods: Bills of lading/ dock receipts/ warehouse receipts/ insurance policies/ commercial invoices/ certificates of origin….
OBLIGATION 3 Conformity of the goods § Arts 35 -44 § Article 35 – The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. .
The seller’s assurance of the quality of goods § Except where the parties have agreed otherwise, the goods DO NOT CONFORM with the quality mentioned in the contract unless they: 1) 2) Are fit for the purposes for which goods of the same description would ordinarily be used; Are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract Exceptions – Ø Where the circumstances show that the buyer did not rely, or Ø It was unreasonable for him to rely, on the seller's skill and judgement;
Seller’s Right To Remedy q Article 37 - before the date for delivery q The seller has the right to: Ø Ø Deliver any missing part. Make up any deficiency in the quantity of the goods delivered. Deliver goods in replacement of any non-conforming goods delivered. Remedy any lack of conformity in the goods delivered.
Buyer’s Obligation Of Examination q The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. q If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.
Buyer’s Obligation Of Notifying The Non Conformity q Article 39 – Ø The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.
Obligation 4 – Assurance of “clean” goods q Article 41 – The goods should not subject to third-party claims of ownership q Article 42 – The goods should not subject to third-party claims of rights in intellectual property
OBLIGATIONS OF THE BUYER n Article 53 1. Pay the price Take delivery 2.
Remedies of the parties under the CISG: 1. Avoid the contract 2. Claim specific performance. 3. Compensation
Specific Performance & Damages n CISG q Article 28: if, in accordance with the provisions of this convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance.
Claim compensation n 1) 2) - Art. 74: Actual loss Loss of profit Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract,