чтобы сократить количество затрат и времени гос-во решило заменить нотариальную форму на гос регистрацию. И теперь нотариальное ребование распростарняется на малое кол-во сделок

Гос регистрация это не форма сделки это просто публичное требование, а нтариальная это форма

смотерть в сочетании со стю 395

Тут пос сути говориться что сторонам необязательсно встерчаться вживую и подписывать договор. Вместо этого одна сторона может остаыив у себя оригинал офферты - скинуть ее копию контрагенту а контрагенты оставив у себя оригинал акцепта оправить копию контрагенту (такой спопсоб делается чтобы быстрее наать отношения, но потом им будет лучше по почте отправить друг другу оригиналы)

Сделки должны иметь письменную форму: 1. между юр лицами и с участием юр лица требуют письменную форму 2. между гражданами если сумма превышает 10 расчетных показателей 3. если закон просто требует 4. по соглашению сторон 5. внешние экономические договоры (как это со-сущетсвует с CISG которая говорит о свободе формы договора? - посмотреть статью которую эльдар скинул и написать свою статью в линкдин)

тут разрешаются цифровые договоры.

Что является цифровым договором? Что является цифровой подписью?

печать - это дополнительное требование, то есть отсутствие печати ничего фатального не влечет если законом или сторонгами не предусмотрено иное.

Закон так мягок потому что есть страны где печати вообще не испоьзу\юмя

для сделок для которых предусмотрена письменная форма действиями можно заменить только акцепту, но никак не офферту (потому что офферта содержит в сбее все условия и когда такая оыферта имеется предполагается что способов будет минимум)

это сделано чтобы исключить неопределенность

По закону - если вы отправили отчет и сторона промолчала то считается что отчет принят ( и другие исключения предусмотрены в части второй )

Законом также предусмотрена возможность действиями обозначить свою волю (конклюдентные сделки) - см. ст. 395(3)

тут ошибка на самом деле (п.3 ст. 399)

1. Нтариус/ Долж лицо/ Организация
2. Указание причины
3. Нужно указать свое имя а не имя человека за которого вы подписываете

В таком случае третье лицо уполномочие на подпись (причем он уполномоченно только на подпсь) - называется рукоприкладчик

факсимиле это как штамб на котором воспроизведена подпись.

Если человек болен, неграмотен и у него нет факсимиле то мы пользуемся алгоритмом указанном в пунктах 3 и 4

в некоторых случаях (в местахх где нет нотариуса, каких то диких местах или боьницах, экспидициях например) там нотариуса искать невозможно поэтому начальник жкспедиции или нлав врач может быть нотариусом

и только в случаях предусм законом несоблюдение письменной формы влечет недейств

Например \Ст. 328, 343

В практическом смылсе: Если вы видите в законе требование простой письменной формыЮ но не указал последтвие то мы приминяем последствия п.1 ст. 178 а если указал последствие как недействительность то это и будет последствием

Данный пункт принимает принцип о том что простое несоблюдение письменной формы еще не влечет ее недействительность, просто нельзя приволить свидетелей в качесте доказательств а остальные вилы дорказательств разрешены

в данном пункте законодатель руководствуется след принципом: "зачем совершать письменную форму в сделках которые заключаются одномоментно - то есть ты договорилсися дал по рукам заплатил сделал"

Однако такой способ заключения не может применяться ко всем сделкам, ннекотоорые требуют письменной и нотариальной формы

а можно в другой стране?

суд выделяет административные требования и направляет их в алмин суд

раньше у нас была статья устанавливающая исключения для дел отнесенных к рассмоттеннию межрайонных судов и суду военного горнизона. Теперь же их удалили и поставили "административных", занчит ли это что теперь районный суд может рассматривать дела отнесенных к рассмоттеннию межрайонных судов и суду военного горнизона, и если да то как в это вписывается факт того что в законе о верховном суде все еще говорится что районные суды не могут рассматривать длела отнесенные к межр. и воен горнизону?

• это не значит что гражданский суд может рассматривать дела подлежащие межрайонному просто нет надобности это тут указывать. Чтобы понять подсудно ли дело межрайонному суду, то мы протос смотрим на список дел подсудных межр. суду и смотрим в соответсвующие законы (что там говоритбся про подсудность)

Районные суды по гражжданским и жкном делам рассмаривают только

ч. 2 ст. 35 ГПК закрепляет возможность за сторонами процесса подать частную жалобу на определение суда по передачи дела в другой суд.

Подобная жалоба однако возможна только в случаях, когда: 1. ответчик, место жительства или место нахождения которого не было ранее известно, заявит ходатайство о передаче дела в суд по месту его жительства или месту нахождения и это ходатайство будет удовлетворенно 2. При нарушении правил подсудности 3. Если при разбирательстве дела в районном суде оно стало подсудным админ. и наоборот

Таким образом, при наличии вышеперечисленных оснований, участники процесса могут подать частную жалобу в течении срока установленного судом. В случае отсутсвия жалобы дело передается по истечению срока, а при наличии - после определения суда об оставлении такой жалобы без удов.

п. 3 ст. 35 ГПК закрепляет обязательную и окончательную природу орпделения районного суда по передачи дела в другой суд. Таким образом наше законодательство запрещает споры о подсудности между судами

• мое понимание такое то есть в таком случае они присоединяются к истцу, НО официально считается что истец только один:?

• А смысл их присоединения какой, то есть какую пользу они несут?

К первому условию можно отнести участников общей совместной собственности, предъявляющих иск к лицу, которое нарушило их права. Ко второму условию можно отнести лиц, нанимателей нескольких квартир в жилом доме, которые предъявляют иск к лицу, по вине которого в дом не подавалась горячая вода в течение определенного срока. К третьему условию можно отнести нескольких членов семьи, приобретших путевку на отдых и впоследствии предъявляющих иск к услугодателю по поводу неоказания им услуги.

Источник: https://www.gpkod.ru/razdel-1/glava-4/st-40-gpk-rf

т.е. в случаях когда органы или лица, обращаются в суд за защитой прав другого лица - истцом будет лицо права, которго защищаются. Исходя из этого, при обращении в суд прокурором - должен ли прокурор спросить разрешение лицо от имени которого он подпет иск (а что если это иск которыф призван защитить права сотни лиц?)

как это?

работает ли аксакальная оговорка как арбитражная то есть суд теряет юрисликцию при наличии подобноц оговорки?

согласно комментариям - передача споров в суд аксакалов возможна только в случаях предусмотренных законом и при наличии согласия сторон.Передача осуществляется судом -- правида ли это??

??

в каких это случаях?

скорее всего подходит именно п.20.1(1) потому что в данном деле сложно сказать что мин образование провело какой-то анализ рынка, т.к. даже сама инициатива исходила от поставщика.

to initiate the case a mere application is not sufficient.

to iniciate the case parties need to show the court grounds: 1) conflict 2) violated right 3) request/application

after all three have been submitted the case shall only initiate the case after the court's acceptance. Thus we have two stages of initiation - submission (three docs & acceptance of the court)

именно создания а не регистрации, что означает что у другого лица возникает обязательство по воздержанию от использования результата вашей интелектуальной деят.

Соотношение данного принципа со смыслом регистрировать права автора состоит в том что ПО ФАКТУ СОЗДАНИЯ создается обязательство воздержатся, а вот В СЛУЧАЕ ПАТЕНТОВАНИЯ две стороны уже могут договориться на условиях использования

имеется ввиду лицензия?

в цооне это делается

A buyer who fails to react for a prolonged period to a seller’s refusal to deliver may lose his right to damages under the principle of good faith even before it is time-barred; in any event, he retains his right to avoid the contract.

If the buyer does not fix an additional period of time for performance but, before he declares the contract avoided, the seller offers to remedy the defect within a specified period of time under Article 48(2) and (3), Article 49(2)(b)(iii) contains a rule mirroring that of the preceding paragraph. If the buyer consents to the offer either expressly or implicitly (by failing to object immediately), then the buyer’s right to declare the contract avoided under Article 49(1)(a) is suspended during the period specified by the seller in his offer (Article 48(2), sentence 2

Article 49(2)(b)(ii) offers the buyer an additional possibility of avoiding the contract where the time limit in Article 49(2)(b)(i) has passed.

Article 49(2)(b)(ii) presupposes the buyer’s entitlement to avoid the contract under Article 49(1)(a), the existence of a right to require performance pursuant to Article 46, and proper fixing of an additional period of time under Article 47.145 In the case of delivery of non-conforming goods, the buyer must assert the right to delivery of substitute goods or repair no later than within a reasonable period of time after the notice of defects. If he remains inactive during this period and demands neither performance nor avoidance of the contract, then he permanently loses these rights (Article 46(2) and (3) or Article 49(2)(b) (i)). In such a case also, he can no longer regain the lost right to avoid the contract under Article 49(2)(b)(ii) by fixing an additional period of time for the seller to remedy the defect, since the seller is no longer obligated to remedy the defec

In the case of Article 49(2)(b)(ii), the fixing of an additional period of time by the buyer gives him a right to declare the contract avoided within a reasonable time period if the seller fails to perform within the additional period of time. However, after expiration of the additional period of time, the buyer may also abide by the contract instead of declaring avoidance thereof.153 He can also fix repeated additional periods of time in succession.154 A second period of time has the same effect as the first: the buyer is again bound until the expiration of that period or until the seller declares (possibly repeatedly) his refusal to perform (Article 47(2)); thereafter there is a new right to avoid the contract under art. 49(2)(b)(ii)

any breach that amounts into a fundamental

Pursuant to Article 49(2)(b)(i), the time period begins to run when the buyer knows of the breach of contract, or ought to have known. The buyer ‘knows’ of the breach only if he knows both the fact of a breach of contract and its extent and importance. Only then can he judge whether there has been a fundamental breach of contract that justifies avoidance of the contract under Article 49(1)(a). ‘Ought to have known’ means that the buyer’s lack of knowledge is based on negligent conduct.

If the buyer demands delivery of substitute goods or repair within a reasonable time pursuant to Article 46(2) and (3), then the question arises of what will happen to the right to avoid the contract if the right to require performance fails for whatever reason. Article 49(2)(b)(i) seems to suggest that the right to avoid the contract is lost because the reasonable period for asserting avoidance of the contract has passed in the meantime. In reality, however, there can be no dispute that the buyer does not lose the right to avoid the contract at a later time by such timely insistence on conforming performance, if the right to require performance cannot be enforced,141 since as long as it is unclear whether the objectively serious defect will be remedied by the seller, the preconditions for fundamentality that (p. 794) Article 49(2)(b)(i) requires are lacking; a right to avoid the contract pursuant to Article 49(1)(a) thus does not even exist (yet). This means that, in this case, the reasonable period does not begin to run until the seller’s attempt to remedy the

The possibility of avoiding the contract by fixing an additional period of time is available to the buyer only if the seller fails to make delivery of all or part of the goods (Article 51),53 but not if the delivered goods are non-conforming within the meaning of Articles 35, 41, and 42;54 in these cases, only Article 49(1)(a) applies,55 subject to the exceptions to be described below.56 16 It is clear from Article 49(1)(b) and Article 64(1)(b) that fixing an additional period of time should lead to a right to avoid the contract upon expiration of the additional period only in the cases of the three cardinal contractual obligations of delivery, payment, and acceptance. In all other cases, the only57 decisive factor is the fundamental nature of the contractual obligation and its breach in an individual case. Less serious breaches of contract cannot be upgraded to reasons to avoid the contract by fixing an additional period of time

Mere failure to observe a delivery date, with delivery as such still being possible, is not generally to be regarded as a fundamental breach of contract.10 A right to (p. 778) avoid is created only after expiration of a reasonable additional period of time without success (Article 49(1)(b)).

However, in other cases as well, a considerable delay in delivery or a shorter delay in delivery combined with other failures may become a fundamental breach of contract.15 This may occur, for instance, if the seller promises the buyer several times that he will deliver at a later date, and by so doing puts him off for an unreasonably long period

Not every defect represents a fundamental breach of contract. Such a breach exists in principle when the defect is objectively serious and is not remedied by the seller (Articles 37, 46, 48).25 (p. 780) Furthermore, the breach of contract will be considered fundamental if the buyer loses the interest that he had in the performance of the contract as a result of the seller’s breach of contract.26 Conversely, a minor breach of contract may exist despite the irremediable nature of the defect if, by claiming damages or a price reduction, or by reselling the goods for a reasonable price, the buyer receives essentially what he could have expected according to the contract.27 Furthermore, if the buyer can use the delivered goods permanently even with certain restrictions, the preconditions of a fundamental breach of contract are often not established

The buyer can declare the contract avoided only when the serious defect is not remedied within a reasonable time by repair or delivery of substitute goods,30 unless the serious defect cannot be remedied due to its nature (eg the painting delivered as part of a sale of specific goods is a forgery).

Avoidance of the contract results in the extinction of both parties’ obligations (Article 81(1)) and in restitution of whatever has already been paid or supplied under the contract (Article 81(2)).1 If the buyer is not in a position to return the From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 15 September 2020 goods delivered, he loses the right to avoid the contract under the preconditions of Article 82.

only a fundamental breach of contract establishes the right to avoid the contract. Particularly when delivery has already occurred, avoidance of the contract should represent for a promisee the ultima ratio, 3 which will intervene when the other remedies—the right to require performance, claims for damages, price reduction—are insufficien

On the other hand, those drafting the Convention regarded a failure to deliver, despite an additional period of time having been fixed, as a serious breach of contract which in any event justified avoidance of the contract, without the need for the buyer to prove specially that the breach was of a fundamental nature.

LEGAL CONSEQUENCES

1. If the seller’s subsequent performance is successful, the breach of contract is remedied and all of the buyer’s rights are eliminated, save only the right to claim damages under Article 48(1), sentence 2.

2. If the breach of contract is not remedied because subsequent performance is connected with unreasonable delay or unreasonable inconveniences, or if subsequent performance fails for other reasons, the buyer regains all of the remedies under Article 45(1) that had previously been suspended

OTHER REMEDIES:

1. Avoidance is possible but only in case if a fund. breach or failure to deliver, despite an additional period of time being fixed, exist. (Art/ 49)

2. As long as the right to remedy defects exists, the price reduction is not possible (Art. 50)

3. If the buyer demands delivery of substitute goods under Article 46(2) and the seller offers repair based on Article 48(1), the question arises as to which right has priority. Since the seller has the right to choose how he will (p. 771) remedy the defect,56 he prevails with the repair.57 This also follows from the fact that if the defect can be repaired, there is generally no fundamental breach of contract and thus no claim to delivery of substitute goods exists.58 The seller also prevails in the opposite case, where he wishes to deliver substitute goods but the buyer merely wishes to have the item repaired

4. Damages - This involves those losses that the buyer suffered due to the original breach of contract and that can no longer be cured by subsequent performance, that is, damages due to delay and ancillary damages (eg costs of taking delivery, examination,60 or dismantling of the unusable item initially delivered). Of course, the right to claim damages lapses in so far as the seller has remedied the damages by subsequent performance.61 For instance, if the seller completely repairs the delivered defective item, the buyer cannot claim damages due to a reduction in value. As long as the right to remedy defects exists, the buyer is not entitled to remedy the defect himself and to charge the costs to the seller as damages pursuant to Article 45(1)(b) or as damages based on a claim founded in domestic, nonuniform law. That is because he would thereby prevent the seller from performing the contract after the date for delivery; therefore, the buyer cannot derive any rights from the seller’s failure to perform (Article 80).62 Subject to the reservation of the duty to take reasonable measures to mitigate loss (Article 77), this does not apply if the seller disputes the defect or refuses to remedy it for other reasons

Pursuant to Article 48(1), the seller has the right to remedy any failure to perform his obligations after the date for delivery ‘subject to Article 49’. In this way, the buyer’s right to avoid the contract is granted priority over the seller’s right to remedy by subsequent performance. Thus, if a fundamental breach of contract under Article 49(1)(a) exists, or if the additional period of time fixed by the buyer pursuant to Article 49(1)(b) has passed without success, the seller cannot claim a supplementary period of time for subsequent performance by relying on Article 48(1)

The core issue is whether the fact that the defect can be remedied within a reasonable period excludes or suspends the fundamental nature of the breach of contract.

It is not only the objective seriousness of the defect at the time of delivery that is relevant in determining the fundamental nature of the breach of contract.38 Instead, the decisive factor is a consideration of all points of view in each individual case, which also includes the capacity and willingness of the seller to remedy the defect completely, by the type of subsequent performance (p. 769) appropriate to the individual case, without unreasonable delay and unreasonable inconveniences for the buyer.39 In this case, the buyer does not fundamentally lose ‘what he is entitled to expect under the contract’, meaning that no fundamental breach of contract exists pursuant to Article 25.40 The buyer’s right to avoid the contract under Article 49(1)(a) is thus established only if the seller has failed to use his right to perform after the date for delivery by delivery of substitute goods or repair within a reasonable period after notification of defects, or if the defect is not remedied or cannot be remedied under the preconditions of Article 48(1).41 There is an exception only if the defect is objectively serious and immediate avoidance of the contract is justified by a particular interest of the buyer. The buyer has such an interest above all where the contract requires delivery by a fixed date, and in similar cases in which late performance is of no interest for him.42 Such an interest can be assumed even where the defective performance was of such a nature that the basis of trust between the parties has been destroyed (eg seller’s deceitful conduct43 or obvious inability44). Fixing an additional time for remedying the defect is not a formal prerequisite for avoidance of the contract, but it can be recommended for the buyer for practical reasons.the question of priority does not arise if the seller offers (subsequent) performance pursuant to Article 48(2) and (3) in response to a buyer’s notice of defect. In this way, the buyer is forced to state whether he wishes to accept subsequent performance or to avoid the contract, thus removing the uncertainty

Pursuant to Article 48, the seller’s right to remedy by subsequent performance does not exist until after the delivery date has passed. Prior to this time, remedying of defects is regulated by Articles 34 and 37.

the CISG adheres to the principle of favor contractus, which also means that the buyer’s right to avoid the contract is the ultima ratio. 4 However, since failure to deliver justifies avoidance of the contract only in particularly serious, exceptional cases, the buyer’s duty to accept the goods delivered late is derived already from Articles 53 and 60.

1. Lacking such a fundamental breach, the remedies remaining to the buyer are merely the right to claim repair (Article 46(3)), damages (Article 45(1)(b)), and price reduction (Article 50).

2. A breach of contract is fundamental when it has objectively achieved a certain importance and has not been remedied by the seller after the date of delivery.

3. Objective importance of the defect. In order to represent a ‘fundamental breach of contract’, the defect must carry objective weight. The discrepancy must be so serious that it is unreasonable to require the buyer to retain the goods despite the defect and to be satisfied with damages or price reduction as compensation for the difference in value. He must have been ‘substantially deprived of what he is entitled to expect under the contract’ (Article 25).54 The important issue is ‘whether other processing or the sale of the goods in the normal course of business, even if perhaps with a discount in price, is possible and reasonable without disproportionate expense’ -

4. The buyer’s claim to delivery of substitute goods is available if a prior fundamental breach of contract has been committed. It exists if the defect is objectively serious (p. 748) and is not remedied by the seller by repair or delivery of substitute goods. In other words, the buyer must grant the seller a reasonable period within which the seller can make repairs under Article 46(3) or exercise his right to require subsequent performance (repair or delivery of substitute goods) under Article 48. It is only once this period has expired without results, or if the seller refuses subsequent performance, that the buyer can exercise a right to delivery of substitute goods under Article 46 or declare avoidance of the contract under Article 49.

5. If a defect can be remedied either by repair or by delivery of substitute goods and the buyer demands the latter, the seller can defeat that demand by repairing the goods within the period and under the requirements set forth in Article 48(1).93 That follows both from the fact that, as a rule, a ‘fundamental breach of contract’ will not yet have occurred94 and the fact that, within the scope of the law of subsequent performance under Article 48, the seller is free to choose the means of performance

6. (cc) Exceptions.There are exceptions to the principle that a breach of contract is fundamental only if the objectively serious defect is not remedied after the fact -

If the buyer fails to comply with the time limit for requiring delivery of substitute goods and for declaring avoidance of the contract (Article 49(2)(b)(i)), his rights are reduced to damages and price reduction. What is a ‘reasonable’ time must be determined in principle according to the criterion of Article 3983 by reference to the circumstances of the particular case

• In accordance with the definition in Article 35, ie the goods do not correspond to the contract or the Convention in their nature, quantity, quality, or packaging.-

However, the buyer can not require the delivery of substitute goods in case of (1) discrepancy in quantity, or (2) defects in title

1. Here Art 46 (2) is overriden by Art 51 which states that if one part of the goods is missing then the buyer can only require the performance under Art. 46 (1), and therefore is not subject to limiting preconditions of Art 46(2)

2. Article 46(2) does not cover cases of defects in title (Articles 41 and 42).46 The term ‘conformity of the goods’ is used in a technical sense, covering only cases falling under Article 35, and so excluding ‘third party rights and claims’ (Articles 41, 42; cf the heading preceding Article 35). The fact that Article 46(2) also uses the term ‘non-conforming’ in this technical sense is also confirmed by the fact that the period for giving notice under Article 46(2) is linked only to the notice period under Article 39 and not to that of Article 43. Consequently, in the event of a defect in title, the buyer’s right to require performance is based solely on Article 46(1), with the consequences47 already described.48 This article is directed at defence against third party claims or, if this does not achieve the desired purpose, at delivery of goods free of defects in title from the same genus

Delivery of substitute goods assumes that a delivery of non-conforming goods has already been made, whereby the goods were transported from the seller’s plant, then the goods have to be taken over pursuant to Article 60(b). Where the buyer rejects goods before delivery on account of their lack of conformity, that is not ‘delivery of substitute goods’. Since the goods were not shipped in this case, the seller has not yet incurred any transport costs, and so no reason exists to subject the buyer’s claim to delivery of conforming goods to the limiting preconditions of Article 46(2). Thus, the basis for the claim is Article 46(1)

The general right to require performance pursuant to Article 46(1) presupposes that the seller has failed to perform one of his obligations (Article 46(1) in conjunction with Article 45(1)(a)).8 Possible failures are, in particular, the failure to deliver the goods within the prescribed period (Articles 30, 31, 33); to provide the documents required by the contract or usage (Articles 30, 34);9 and to transfer unencumbered property in the goods (Article 41 et seq) 10 or other contractually accepted obligations (eg installation). The subject matter of the right to require performance depends on the duty that has been violated. In case of delivery of non-conforming goods (excluding defects in title), the right to require performance is governed by Article 46(2) and (3)

The duty to mitigate loss can not require buyer to stop requiriring the performance from the seller, even if continuing to require can cause damage tpo increase buyer has a right to continue to maintain his right to require performance—limited, if at all, by good faith (Article 7(1)) in international trade—as long as he believes it to be to his advantage to do so.

  -Impediments-

(aa) Exemption under Articles 79 and 80. 1. If the failure to perform is caused by an impediment for which the seller can claim exemption under Article 79(1) to (3), the buyer has no right to require performance. The exclusion follows from the spirit of the rule: it would be inconsistent to allow a buyer to require performance where performance is prevented by an impediment which, by virtue of Article 79(1) to (3), the seller is not required to overcome.

1. This applies only to permanent impediments; where the impediment is merely temporary, the exemption takes effect only for the period during which the impediment exists (Article 79(3))

2. If the seller is responsible for an impediment for the purposes of Article 79 and pleads that to overcome the impediment will involve unreasonable difficulties for him, then the exemption from the duty to perform depends upon the circumstances of the individual case. The buyer’s material and intangible interest in specific performance is to be weighed against the seller’s unforeseeable cost of performance, taking into account the specific contract (particularly including the price) and the principle of good faith in international trade. The reasons leading to the alleged unreasonableness are also to be included. If a gross disparity between the buyer’s interests and the seller’s expenses is determined, the buyer’s right to require performance lapses.

юрисдикция

при применении аналогии права необходимо обращаться не к конкретным нормам закона, а руководствоваться общими началами и смыслом законодательства.

приминение норм регулирующих сходные отношения

1) гражданско-правовое выражение экономического оборота, которое опосредуется договорными и внедоговорными институтами обязательственного права. Участниками гражданского оборота являются организации и граждане, распоряжающиеся своими доходами и вступающие в различные имущественные правоотношения. В определенных случаях участниками гражданского оборота могут быть также РФ, ее субъекты и муниципальные образования. Содержание гражданского оборота составляет переход имущества от одного лица к другому на основе заключаемых участниками гражданского оборота сделок ила в силу иных юридических фактов; 2) в широком смысле совокупность всех действий, которые в данном гражданском обществе совершаются его членами (субъектами прав) с целью установления или прекращения гражданских прав и обязанностей. В этом смысле гражданский оборот есть совокупность всех юридических актов, совершаемых в обществе

отношения, которые складываются по поводу имущества, имеющего денежную и стоимостную оценку. Имущество-это вещи, включая наличные деньги и документарные ценные бумаги, безналичные денежные средства, бездокументарные ценные бумаги, имущественные права.

In case of a breach of contract by the seller, the question arises of whether a buyer may assert, in addition to or instead of his rights under Article 45(1), further claims he derives under the domestic law that is secondarily or supplementarily applicable by virtue of the rules of private international law. It is almost exclusively in case of delivery of nonconforming goods, however, that this question is of practical importance. In this case, the remedies of the Uniform Sales Law are subject to the time limits for giving notice of defects in Article 39. Moreover, Article 74, sentence 2, restricts damages to ‘foreseeable’ loss, whereas such a restriction is frequently unknown to the domestic law otherwise applicable, or has a different meaning.81 Even in a case where the goods are in conformity with the contract according to Articles 35 and 36, domestic law may give the disappointed buyer some remedies (eg rescission for mistake, culpa in contrahendo). A buyer who has failed to observe the period for giving notice of defects or the limitation period, or who is seeking to recover more than the ‘foreseeable’ loss, or who has failed during contract negotiations to make known a particular purpose for which the goods will be used, therefore has an interest in having recourse to domestic remedies that are more far-reaching than his remedies under the Uniform Sales Law

The general principle is that exclusivity of uniform law is to be assumed.84 Articles 35 et seq and 74 therein provide for an evaluation of the parties’ interests with the intent of protecting the seller from excessive liability. Domestic law should not be permitted to interfere with this carefully considered assessment; in particular, the outcome should not vary depending on the domestic law of different States.85 A buyer’s concurrent remedy (p. 733) based on domestic law is admissible only under three conditions: the grounds upon which the remedy is based cannot fall within the scope proper of the Uniform Sales Law;86 the remedy cannot be in conflict with the regulatory goals of the Uniform Sales Law;87 and the domestic law itself must permit concurrent assertion of the remedy.88 For additional details and comparative legal references, see the commentary on Article 35 (concurrent remedies in case of non-conformity of the goods) and Article 4 (concurrent national delictic claims in case of property damage)

Article 31 of the CISG regulates the place of performance for the delivery obligation,92 but is silent on the question of where claims for damages are to be satisfied. The determination of the place of performance is significant because many codes of procedure establish the place of jurisdiction at the place of performance.

that place in a Member State to which the goods were delivered or ought to have been delivered under the contract is decisive for all obligations arising from a contract of sale, thus also covering performance (p. 734) in monetary terms. In this way, the most significant jurisdiction is established by the centre-of-gravity test at the actual or agreed-upon place of delivery for all disputes arising from the contract of sale'

The Convention does not lay down rules on the time limits for bringing legal action;90 that issue is determined by the domestic law applicable by virtue of rules of private international law, or by the Limitation Convention.

All of the buyer’s remedies under Article 45 are dispositive and may be excluded by contrary agreement (Article 6). That poses no problem where exclusion occurs by specific agreement. The question of whether the seller may exempt himself from the consequences of his liability under Article 45 by means of his standard business terms (‘delivery terms’)100 is a matter concerning the ‘validity’ of the contract and is not a matter governed by the Uniform Sales Law (Article 4, sentence 2(a)).101 The applicable law is the contract law to be determined according to private international law principles.102 The governing (p. 735) law will therefore be that domestic law103 which would apply pursuant to the applicable conflict of laws rules even if the contract were not subject to the Uniform Sales Law.104 Under the majority of legal systems, the legal system chosen by the parties is applicable.105 If no such choice of legal system is made, the substantive law of the seller’s State is generally applicable.106 37 When examining the content of the standard business terms under domestic law, it is necessary to consider that the examination criterion pursuant to, for instance, § 307 of the German Civil Code (BGB) is the Uniform Sales Law, not domestic law.107 The question of the extent to which the individual remedies of the Uniform Sales Law can be excluded must be considered in the context of the respective individual provision.108 It is generally not permitted to completely exclude the buyer’s claims against the seller for the seller’s failure to perform an obligation. In other words, the buyer must have a minimum adequate protection against breaches of contracts caused by the seller.

Article 45(3) makes it clear that a period of grace, during which the buyer’s remedies (especially the right to avoid the contract) are temporarily suspended, may not be granted by a court or arbitral tribunal in cases to which the Uniform Sales Law applie

Article 45(2) provides that the buyer has the right to combine a claim for damages with the remedies available to him under Articles 45(1)(a) and 46 to 52

(a) Right to require performance. 26 In addition to performance, delivery of substitute goods, or repair under Article 46, the buyer can claim damages only due to the delay and to ancillary and consequential losses,67 since his immediate interest in performance has already been satisfied by the right to require performance

(b) Avoidance of the contract. 27 If the buyer declares the contract avoided, he can demand full damages for the seller’s failure to perform with regard to all losses

(c) Price reduction. 28 Damages may also be combined with a claim for a price reduction.73 However, the amount claimed from the seller by way of price reduction reduces the overall damages payable.74 If a buyer wishes to retain the goods and to claim damages on account of a defect in them, it is therefore more appropriate for him to calculate his total damages from the beginning on the basis of Article 74 and not to claim a reduction in price separatel

The right to claim damages under Article 45(1)(b) is based on the principle that, by operation of law, the seller is subject to general guarantee liability with regard to performance of his contractual obligation

The seller is therefore immediately liable to the buyer for both the loss that he suffers from the failure to deliver and for the damages incurred by the lack of conformity of the goods. The breach of contract need not be fundamental.60 The seller is liable for (p. 730) damages only to the buyer; Uniform Sales Law does not grant third parties (eg customers to whom the buyer has resold the goods) a right to claim damages

If the preconditions for the right to require performance (Article 46), avoidance of the contract (Article 49), or price reduction (Article 50) are all satisfied, the buyer may elect among them.

It is not possible to combine the three remedies, because their legal consequences are mutually incompatible.30 If the buyer decides on delivery of substitute goods, the seller remains obligated to deliver, and the buyer obligated to pay the price. If the buyer decides to avoid the contract, the seller ceases to be under an obligation to deliver the goods and the buyer is no longer under an obligation to pay the price (Article 81(1), sentence 1). If the buyer elects price reduction, the seller is no longer obligated to deliver substitute goods, and the buyer remains under an obligation to pay the reduced price, while retaining the goods that have been delivered (whereas in either the case of delivery of substitute goods or in that of avoidance of the contract he must make restitution of the goods, Articles 81(2) and 82(1))

(b) Ius variandi (aa) Right to require performance. 14 If the buyer opts to require performance pursuant to Article 46, he is not compelled to pursue that remedy. His freedom of action is temporarily restricted only if he has fixed an additional period of time for performance by the seller (Article 47(2), sentence 1). In this case, he may not exercise any other remedy during the period fixed unless he receives notice from the seller stating that he will not perform. In exceptional cases, a change from the initially asserted right to require performance to another remedy can be a misuse of rights.35 This would apply, for instance, in case of a fundamental breach of contract if the buyer initially insists on delivery and then changes to a remedy on short notice, although the seller had already effected the delivery in the meantime. If delivery is made before the buyer declares avoidance of the contract pursuant to Article 49(1), the right of the buyer to avoidance of the contract is excluded pursuant to Article 7(1) (good faith)

(bb) Avoidance of the contract The buyer may change the remedy from avoidance to something else if the seller has legit expectations or dispositions that are worthy of protection. The seller has expectations worthy of protection when he consents to the avoidance of contract either epressly or implicitly by corresponding actions. The seller does not have legit expectations worthy of protection if he did not recieve the notice or if he fecieved the notice but contests to the existence of non-conformity

(c) Price reduction According to this view, the buyer is in principle bound only once receipt has occurred, since the seller need not be protected against retraction prior to that point.48 In the case where the seller is aware or ought to be aware, the declaration of price reduction is irrevocable if the seller has changed his position in reliance on it in a manner worthy of protection, for instance, by declaring his consent thereto or by making dispositions. If nothing has been heard from the seller, it must be assumed that he has changed his position in reliance on the price reduction, and the buyer bears the burden of disproving this assumption.4

Even if the buyer demands damages immediately, he is, after all, not bound to the initial calculation submitted to the seller. There is no reason why that should be different in cases of price reduction. 20 If the buyer demands a price reduction due to a defect that he discovers, and if a second, new defect becomes apparent later, then the buyer can again claim all rights pursuant to Article 45(1)(a) due to this second defect, as long as the notice period (Article 39) has not passed. He is also not prevented from doing so by the fact that he had already agreed with the seller upon a price reduction due to the defect discovered first, since the agreement between the parties did not refer to this second defect. (c) Incumbent upon buyer to decide between remedies. 21 If the buyer waits to elect a remedy and does not decide, he runs the risk of losing one remedy by allowing a reasonable time to pass

Buyer’s right to suspend performance 44 45 46 47 48 49 50 51 From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 15 September 2020 22 The CISG does not contain any rule that grants a party a general right to suspend performance in case of a breach of contract by the other party.52 However, such a right to refuse performance until counter-performance has been effected is provided for in individual regulations (particularly Articles 58(1)(2) and (2), 71, 85, sentence 2, 86(1)(2)),53 from which a general right to refuse performance until counter-performance has been effected can be inferred in case of non-performance of all obligations that are of any weight

It can always be assumed that a waiver has been made187 if the seller unreservedly acknowledges the lack of conformity, takes back the goods,188 states that he is willing to repair them or deliver substitute goods,189 or agrees without reservation to an expert examination of the notified defect

. The buyer thereby loses all the remedies he would be entitled to under Article 45. Even remedies that the buyer could be entitled to under domestic tort law or the law of mistake remain excluded.176 If too few goods have been 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 15 September 2020 delivered,177 the goods are of inferior quality, or they are a less valuable aliud, the buyer must therefore pay the contractually agreed purchase price, without being able to rely upon any defences or the right to set off any counterclaims.178 If the seller delivers more than the contractually agreed amount and notice of lack of conformity is not given, the buyer must pay a correspondingly higher price under Article 52(2).

Exceptions (a) Article 40. 33 The failure to give notice is of no legal consequence if the lack of conformity is based on facts of which the seller was aware or of which he could not have (p. 671) been unaware and which he did not disclose to the buyer.183 The two-year time limit in Article 39(2) does not apply in such a case. (b) Article 44. 34 If the buyer has a reasonable excuse for failing to give notice,184 he at least retains the right to claim a reduction in the price and to claim damages, except damages for loss of profit. However, even those remedies are subject to the two-year time limit under Article 39(2)

The two-year time limit does not apply if it is inconsistent with a contractual151 period of guarantee.152 The two-year period may be extended by a guarantee, but also shortened.

Under Article 39(1), the notice specifying the lack of conformity must be given within a reasonable time after the buyer discovered or ought to have discovered it. As a rule, two periods must therefore be distinguished, namely the period for examining the goods87 (p. 660) and the period for giving notice of lack of conformity. These periods should not be combined to make a total period.

When determining a ‘reasonable period’, all the circumstances of the specific case must be taken into account,91 including any trade usages and practices between the parties.9

The period for giving notice of lack of conformity begins when the buyer has discovered or ought to have discovered the lack of conformity.123 If the buyer has actual knowledge of the lack of conformity, the period for giving notice begins irrespective of whether the period for examining the goods has already expired.124 So, for example, a buyer must give notice of a discrepancy in quantity already established when the goods are handed over, even if the examination of the goods for defects in quality has not yet been completed or does not yet need to be completed

Lack of conformity not recognizable upon a proper examination must be notified by the buyer within a reasonable period after he actually establishes such lack of conformity or (p. 665) should have done so.129 However, a duty on the buyer to continuously examine the goods cannot be inferred from this.130 For example, a buyer cannot be expected to put a machine that has been properly examined into operation immediately, merely to discover any lack of conformity on time. Instead, only defects that subsequently become obvious become subject to the duty to give notice of lack of conformity. If symptoms of a defect appear, the duty to examine is revived

The notice must indicate the intention to object25 and exactly specify the nature of the lack of conformity

Generally, there are no requirements as to the form of the notice of lack of conformity (Articles 11, 7(2)).67 According to Article 27, the seller bears the risk of transmission of the notice of lack of conformity;68 ie the rights of the buyer are consolidated with the dispatch of the notice and are upheld even if the notice is lost in transit,69 or is received by the seller late70 or with a different content. However, this is subject to the requirement that the notice must be sent by means appropriate in the circumstance

The notice must be addressed to the seller.81 The question of which persons are legally entitled to receive notice of defects on behalf of the seller is not dealt with by the CISG.82 Rather, this issue is to be determined in accordance with the domestic law applicable under private international law.8

When determining which requirements must be satisfied by the buyer in specifying the nature of any lack of conformity, a mixed objective-subjective standard should be applied,37 which has regard to the respective commercial situation of the buyer and the seller,38 to any cultural differences, but above all, to the nature of the goods. In certain circumstances, a more precise specification of the lack of conformity may be expected of an expert than of a non-expert.39 Notices framed in quite general terms (‘not in order’,40 ‘defective quality or delivery of wrong goods’,41 ‘missing contractual prescriptions,42 ‘inferior and poor quality’,43 ‘second rate’,44 ‘poor workmanship’,45 ‘machine must be repaired’46) or general expressions of dissatisfaction (‘there’s been a complaint’,47 ‘not as we expected/requested’48) are generally insufficient for the purposes of the CISG.49 Likewise, a mere order of new goods cannot be understood as notice of nonconformity of the goods delivered, even if the buyer indicates the occurrence of damage.50 However, in an age of electronic communication, a seller could be expected to make inquiries of the buyer after receiving a non-specific notice of lack of conformity;51 in general, the buyer must therefore be permitted to substantiate his notice immediately.52 If the seller refrains from making possible inquiries despite reasonableness, he cannot rely on the notice not being specific enough.

However, particularly in the case of machines and technical apparatus, the buyer can only be required to give an indication of the symptoms, but not to provide details of their cause.57 If a representative of the seller was present at the examination, the requirements for the specification are to be reduced.

Under Article 39(1), any lack of conformity23 which the buyer has established or should have established upon a proper examination of the goods, as well as any lack of confor-mity discovered subsequently, must be notified to the seller

The examination may be undertaken by the buyer himself, his employees, or by third persons (eg by customers30 or experts)

Goods provided as a sample or model thereby become the agreed standard for the substance of the contract.1

Difficulties may arise if there are discrepancies between a sample or model, on the one hand, and a contractual description of the goods under Article 35(1), on the other.181 Insofar as the contractual description does not conflict with the features of the sample or model, it can be assumed that the goods must possess both the contractually agreed features and also the features of the sample or model.182 If there is a conflict between the terms of the contract and the sample, the contract must be interpreted on the facts of the individual case in order to establish which qualities the parties intended to take priority. if the sample has been drawn in breaching the requirements of the contract, the (p. 610) seller cannot argue that the goods possess all the qualities of the sample.184 In the same scenario, goods are non-conforming when the defects of the sample were hidden at the time of inspection.

Since the spirit and purpose of a sale by sample or model is to give the buyer the possibility of examining the goods or using them in a trial run, it should, as a rule,186 be assumed that qualities provided for under Article 35(2)(c) take priority, because, in that respect, the buyer places no reliance on the seller’s skill and judgement. However, if in an individual case the seller confirms that the goods are fit for a particular purpose and the buyer is unable to check this by reference to the sample or model, Article 35(2)(b) must take priority. 28 The seller is not liable under Article 35(2)(c) if the sample or model is provided ‘without obligation’

1. Under Article 35(2)(b), the seller is only responsible for the fitness of the goods for a purpose other than the purpose for which they would ordinarily be used, if that purpose has been expressly or impliedly made known to him, the buyer relied on the seller’s skill and judgment, and it was reasonable for him to do so.

2. A particular purpose exists if, for example, the buyer of machines intends to use them in unusual climatic conditions

3. A particular purpose (p. 607) may also exist if the buyer is operating in a market with a special emphasis on fair trade and the observance of ethical principles

In the absence of contrary agreement, the goods must be fit for ordinary use. This corresponds to the rule in many domestic legal systems.83 If the goods are not fit for all, but merely some, of the purposes for which goods of that type are ordinarily used, the seller must inform the buyer of that fact.84 Such information offered by the seller does not, however, modify the standards of ordinary use, but exempts the seller from liability pursuant to Article 35(3). On the other hand, if the goods are not fit for purposes for which they are occasionally, but not ordinarily, used, the seller is liable only if the restrictive conditions of Article 35(2)(b) are satisfied

The goods must, primarily, be fit for commercial purposes. That means, first of all, that, if the buyer is in the resale business, it must be possible to resell them

There may also be some doubt regarding the question of whose standard—that of the seller’s or that of the buyer’s State—is relevant in order to determine which characteristics the goods must have in order to be fit for their ordinary purpose. This boils down to a question of risk allocation between seller and buyer.120 While some authors refer to the seller’s State,121 other writers regard the standards in the State of use as controlling the issue.122 However, ultimately, the question of the relevant standard is a matter of the interpretation of the contract.123 The primary concern is whether a ‘particular purpose’ within the meaning of Article 35(2)(b) exists.124 Where subsidiary reference must be made to the ordinary purpose, one can rely on the following considerations: where there is an international usage as to particular characteristics or manufacturing standards of the goods, (p. 604) those characteristics must be regarded as minimum quality requirements

As a rule, Article 35(c) takes priority over Article 35(b),81 which again takes priority over Article 35(a),82 which generally applies consistently alongside Article 35(d).

However, according to a correct understanding of Article 35 a buyer is entitled to expect the delivered goods to be fit for the ordinary use with regard to qualities that have not been defined in the contract.77 Thus, a quality agreement only excludes the duties of Article 35(2) for the contractually agreed qualities; apart from that, all other duties (p. 600) apply alongside Article 35(1).78 The same applies for the relation between the duties of Article 35(2): as long as they are consistent they apply cumulatively

Article 35(2), which sets out a series of objective criteria65 to be used in order to determine the conformity of the goods, applies in so far as the contract does not contain any, or contains only insufficient, details of the requirements to be satisfied by the goods for the purposes of Article 35(1).66 With respect to those criteria, the intended purpose of the goods is of particular importance.

If the parties have reached agreement on the packaging or containers to be used, the goods do not conform with the contract unless they comply with the terms agreed

‘Quality’ must be understood as meaning, as well as the goods’ physical condition,41 all factual and legal circumstances concerning the relationship of the goods to their surroundings.4

The quantity of goods delivered by the seller must conform with the contractual requirements. However, the existence of discrepancies, as permitted in various trade sectors,34 that are usual in the particular trade concerned, is not to be regarded as constituting a lack of conformity

Finally, unlike English law, Article 35 does not differentiate between conditions and warranties12 or make the distinction, as in American law, between express and implied warranties.13 This must be borne in mind when interpreting the concept of ‘conformity’ (Article 7(1)), because otherwise there is a risk that each court will interpret Article 35 in accordance with its own domestic legal classifications and that such differences in interpretation will hinder unification of the law

Three main positions are advocated to solve such close cases. One view in case of doubt attributes more weight to the place of business carrying out the performance of the contract.29 The majority view relies on the place of business responsible for the conclusion of the contract.30 A third view finally gives priority to that place of business which has the most power to exert influence upon the contractual relationship.31 This view may often lead to the principal place of business being the relevant place of business.32 This latter view is also followed here. The place of business able to influence the performance as contemplated by the parties should be decisive as it will usually also be that place of business which may react to complaints by the counter-party, agree on modifications of the contract or may participate and make decisions in any other dealings possibly necessary in connection with the performance of the contract. This does not necessarily have to be the principal place of business but may as well be a branch office competent to handle the transaction in all relevant matters

. The seller must place the goods at the buyer’s disposal at the exact place where the goods are located, where they are to be manufactured or produced, and the buyer must collect them from that exact place.

The goods are placed at the buyer’s ‘disposal’ when the seller has taken all of the steps necessary to enable the buyer (or the person engaged by the buyer) to collect the goods. In particular, the seller is required to ‘make the goods available’ to the buyer at the place of delivery.102 What this entails will depend on the circumstances of the individual case

As a rule, the goods are only ‘placed at the buyer’s disposal’ if the seller notifies the buyer.106 If the notice is sent by appropriate means, then the risk of loss or delay in transmission of the notice is borne by the buyer (Article 27). Therefore, the seller fulfils his obligation to place the goods at the buyer’s disposal even if the notice is lost or delayed.107 However, the risk of loss of the goods only passes to the buyer when the buyer is aware of the fact that they are placed at his disposal, which means that the notice must have reached him (cf Article 69(2)).108 Moreover, the buyer is required to pay the price (Article 58(1), sentence 1) only when notice reaches him.109 Accordingly, it will be in the seller’s own 98 99 100 101 102 103 104 105 106 107 108 109 From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 15 September 2020 interests to notify the buyer a second time if he learns that the first notice was lost or delayed, and he is also required to do so under the principle of good faith (Article 7(2)).110 49 The seller need not notify the buyer if the parties have agreed that the buyer is to collect the goods on a fixed date and the seller makes them available on that date,111 or if the goods are already ready for collection when the contract is concluded and the buyer is aware of that fact.

Accordingly, the loading of the buyer’s vehicle or container (or that of his carrier) is not part of the seller’s delivery obligation, but rather part of the buyer’s obligation to take delivery (Articles 53, 60(b)).114 If the parties have agreed that the seller must load

. Loading the buyer’s (or his carrier’s) vehicle means ‘handing over’ the goods—an act to which the delivery obligation under Article 31(b) and (c) does not extend. If the seller is required to see to loading, then this constitutes an additional obligation for which the seller will be liable under Article 45 et seq.

If the sales contract does not involve carriage of the goods94 and the seller is not bound to deliver at any other particular place,95 then both the content of the delivery obligation and the place of delivery are governed by Article 31(b) and, subsidiarily, Article 31(c). Under both provisions, the seller delivers the goods by placing them at the buyer’s disposal and the buyer is required to collect the goods. As always, the parties are free to derogate from these rules.

Article 31(b) covers the following four cases: 1. contracts of sale for specific goods located at a place known to both parties at the time of the conclusion of the contract; 2. contracts of sale for a specific quantity from a specific stock (eg a tun of wine, the content of an oil tank, the cargo of a ship which has berthed) located at a place known to both parties at the time of the conclusion of the contract; 3. contracts of sale for goods which are yet to be manufactured by the seller or a third party 96 at a place (factory or works) known to both parties at the time of the conclusion of the contract; and 4. contracts of sale for (natural) goods which are yet to be produced, eg cotton from a plantation, timber from a wood, or gravel from a quarry, where both parties are aware, upon conclusion of the contract, where the plantation, wood, or quarry (belonging either to the seller or a third party) is situated. Article 31(b) provides that, in these four cases, the buyer must collect the goods from the place where the parties know them to be situated or where the parties know they will be manufactured or produced

Unless a contract stipulates otherwise, a seller is ofcourse free to deliver the goods to the buyer himself, however, in this case the risk will not pass the seller until he handles the goods over to the buyer, because seller is not a carrier. Even if seller instructs her employees to do so, they are still not carrier because they are not independent, thus the situation is the same unless the seller undertakes to sdeliver goods only partially to a certain place and then handles the goods over to the carrier from that place. In such a case the seller 's liability will be perfonnmed once it jandles the goods over to the carrier in accordane witrh thios articel

The goods are ‘handed over’ to the carrier as soon as the carrier obtains physical custody of the goods with a view to their transportation.49 If the carrier collects the goods from the seller, they will be ‘handed over’ as soon as they are loaded onto the carrier’s vehicle in the carrier’s (or his driver’s) presence.50 If the goods are loaded in his absence, they will be ‘handed over’ only once the carrier (or his driver) has taken over the vehicle. The fact alone that the goods are ready for dispatch is not enough; nor is it sufficient for the seller to hand over a document of title to the carrier.5

The goods are handed over ‘for transmission to the buyer’ if the seller has concluded a contract of carriage52 on the basis of which the carrier is required to transport the goods (or to have them transported) to the buyer.53 Detailed provisions are laid down in Article 32.54 If the parties have agreed that the seller is to dispatch the goods to a third party, or if the buyer has subsequently instructed the seller to do so,55 then, for the sake of transmission, that third party will be considered to be the ‘buyer

Here, too, the goods are ‘delivered’ when they are handed over to the first carrier, regardless of whether the first carrier is responsible for the entire transportation (so that further carriers will be engaged by him as subcarriers) or only part of it, and regardless of the length of the stage of transportation for which the first carrier is responsible

A ‘carrier’ within the meaning of Article 31(a) is any independent company or natural person in the transportation business26 called upon to carry out all or (p. 526) part of the transportation of the goods ‘for transmission to the buyer’27 and to whom the goods can be ‘handed over’,28 eg carriers engaged in transport by road, water, or aircraft, railway companies, postal authorities, and courier services

For the purposes of art 31 a - independent means not employed by seller if it is an individual, and having a distinct legal personality if it is a legal entity

’.22 In the rare cases where it cannot be determined that the contract requires carriage by the seller, then unless the specific criteria of Article 31(b) are met, the default rule of Article 31(c) will apply.23 14 In general, it will be quite clear whether the seller must dispatch the goods to the buyer or whether the buyer must collect them from the seller, because of either an express contractual term, practices established between the parties (Article 9(1)), or trade usage (Article 9(2)). If it is not clear, the matter will need to be determined in accordance with the Convention’s rules on contract interpretation (Article 8)

‘Carriage’ means the transportation of goods which the seller must arrange in order for the buyer to be able to take them over. However, not every kind of transportation of goods amounts to ‘carriage’ within the meaning of Article 31; rather, it follows from the wording of Article 31(a) that only dispatch of the goods ‘for transmission to the buyer’ constitutes ‘carriage’

Article 31 deals with two closely connected matters: it specifies what the seller must do in order to perform his delivery obligation (ie the content of the delivery obligation); and also where this obligation must be performed (ie the place of performance). In practice, the parties will often derogate from Article 31 by agreeing on delivery terms (eg ICC Incoterms ) that set out what the seller must do in order to perform the delivery obligation, as well as the place of delivery.1 That they may do so follows from the principle of freedom of contract (Article 6).

The court is bound to order specific performance by the promisor only if it would also do so according to its own law in case of ‘similar contracts of sale’ that do not fall under the scope of the Convention. For comparative purposes, the court must imagine a contract of sale whose content (object of performance, place and time of performance, other obligations) is similar (‘gleichartig’, ‘semblable’) to the case to be adjudicated and is subject to domestic law

First of all, the court or the arbitral tribunal must determine whether the promisee can demand performance from the promisor pursuant to the CISG. In doing so, it must comply with the inherent written and unwritten limits of the CISG. If the right to require performance exists according to this standard, the court or tribunal must check by application of its own law whether it would arrive at the same conclusion on an imaginary contract subject to domestic law and containing similar rights and duties, ie, whether it would permit the action for performance.71 If the court’s own law were to deny the promisee the right to require performance in a specific case because concerns exist specifically against compulsory performance as such, for instance due to reasons based in 59 60 61 62 63 64 65 66 67 68 69 70 71 From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 15 September 2020 enforcement law, then the action for performance would have to be dismissed by invoking Article 28.

The authoritative law is the domestic law of the forum (seat law) State, excluding conflict of laws.36 It is thus unnecessary to determine the law applicable to the contract of sale

The extent to which national limitations on compulsory performance are to be admissible is subject to dispute. The solution must be guided by the purpose of Article 28, which initially was to privilege the common (p. 488) law courts.39 At the same time, it must be remembered that specific performance as a legal remedy is the sanction awarded by a court against a violation of law or contract determined independently thereof. Therefore, the extent to which Article 28 allows 30 31 32 33 34 35 36 37 38 39 40 41 42 43 From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: OUP-Reference Gratis Access; date: 15 September 2020 selection of the proper domestic law cannot be determined by the substantive,44 procedural,45 or enforcement46 nature of a law. Instead, the decisive factor is whether the right to require performance is denied in domestic law because there are concerns specifically against compulsory performance (in contrast to damages) as an appropriate remedy. In this case, the action for performance can be dismissed on the basis of Article 28.47 However, it may even be that the right to require performance is not available, as is the case when the duty to perform as such does not exist (eg in case of impossibility). Article 28 cannot be applied in these cases, since the CISG itself regulates the existence and scope of the promisor’s duty to perform. 11 Article 28 is a reservation clause that permits the court under certain circumstances to deny the right to require performance that actually exists according to the CISG—but never to go beyond the rights to require (subsequent) performance granted by the CISG. For instance, if the CISG denies the buyer the right to replacement delivery according to Article 46(2), this remains the case even if the court could order replacement delivery under domestic law

The Uniform Sales Law takes the differences between European and American Laws into account using Article 28. The right to require performance is certainly permitted as a remedy, but its legal enforcement is limited. The courts of the Contracting States13 are to react to an action for performance in the same way as they would react to similar sales contracts according to their ‘own law

In other words CISG apresupposes the right to require performance and does not limit it. Rejection of an action for performance on the basis of Article 28 can occur only when a right to require performance exists according to this standard, if the deciding court rejects the action on the basis of its own law in the event of similar purchase agreements

Art. 28 includes parties's rights to require performance under the CISG (right of the buyer to recieve, right of the seller to get paid etc).

In continental European Legal Sustem they allow to require the court to oblige one party to make a specific perfomrmance: 1. In these legal systems, a promisee’s claim to specific performance is taken for granted as a straightforward consequence of the principle of pacta sunt servanda, as the ‘backbone of the obligation.’2 In case (p. 483) of breach of contract by the promisor, the promisee should not be forced into a substitute sale. The danger that a promisee, through obstinacy, harassment, or wrongful intent, will continue to assert a right to require performance without a justified interest, is considered to be less serious.

In American LAw, they prohibit: 2. In contrast, a breach of contract in common law leads primarily to a right to claim damages.3 The right to require performance as a legal remedy in the form of specific performance4 (in case of an obligation to carry out a positive act) or action for the price is granted only in exceptional cases On the one hand, the reservations in English and American law against ordering specific performance are based on history and the law of enforcement of civil judgments.6 On the other hand, they express the desire to preserve the freedom of the promisor and to protect him from excessive economic commitment

According to the principle of freedom from form requirements provided for in Article 11, a declaration of avoidance need not be in any particular form. The contract can thus be avoided in writing, verbally,10 or even impliedly (see below). If the contract, or if trade usages or practices established between the parties, provide for a specific form in which this declaration—or declarations in general—must be made, non-compliance with this form will lead to nullity of the declaration, The declaration of avoidance must satisfy a high standard of clarity and certainty.

Article 26 governs only the modalities of contract termination, without stating the grounds on which the contract can be avoided. Those grounds may be found in the contract (Article 6) or in other CISG provisions (Articles 49, 64, 72, 73

a declaration of avoidance has the following consequences: (1) the parties are released from their original obligations; (2) the parties regain their freedom of disposition; (3) the parties are usually obliged to restore what has been supplied or paid under the contract; (4) often, the party avoiding the contract will hold a damages claim against the breaching party. The calculation of damages is governed by Article 74 et seq, in particular Articles 75, 76

According to the correct view, which is being shared by courts from a number of Contracting States, by arbitral tribunals, and by the majority of legal commentators, the underlying policy is to prevent the unnecessary unwinding of contracts or delivery of substitute goods, which would cause additional costs269 and—in international trade— additional risks for the goods, since they would have to be stored and transported back to the seller. The threshold of fundamental breach should therefore be high, and the restitution of the non-conforming goods ultima ratio (last resort).270 (Some courts have held that, in cases of doubt, the existence of a fundamental breach should be denied.271) As long as the goods are not totally useless to the buyer, he should be restricted to claims for damages and the right of price reduction -

Here, ie in the precise distinction between a buyer’s possibility to reasonably274 make use of defective goods, on the one hand, and their total uselessness for him, on the other hand, the most important and often most difficult decisions in Article 25’s practical application occur. If the goods can be resold by the buyer, even at a giveaway price, no fundamental breach exists, and thus no contract avoidance (or claim for substitute delivery) is allowed under the Convention.

The courts have extended the general rule outlined above to cases where the goods delivered were not defective, but could not be used by the buyer due to the seller’s failure to comply with additional obligations under the contract, such as an obligation to install the goods in a ready-for-use condition

The limit should be, however, where the use of the defective goods would be an unreasonable burden for the buyer.279 This is the case if the buyer would have to search for and utilize unreasonable channels of distribution in order to resell the goods (such as dealing with the mafia), or where he has to incur high expenses which he could not expect to recover from the seller as damages or otherwise. Furthermore, it must be taken into consideration if efforts to resell the defective goods would damage the buyer’s professional reputation, and are therefore unreasonable. A factor also to be considered is the purpose for which the goods were purchased287—if they were bought in order to be resold to the buyer’s customers or to be used for production (p. 451) purposes, the buyer can more readily be expected to resell them in spite of their insufficient quality, whereas comparable efforts may be an unreasonable burden if the goods concerned were bought as equipment for the buyer’s business (as notably machinery) and he accordingly has no experience in dealing with goods of that kind

From the history of Article 2587 it is clear that—unlike in the drafts—the ‘detriment’ does not refer to the extent of a loss suffered, but instead to the importance of the interest which the contract and its individual obligations have created for the promisee.88 The contract therefore not only creates obligations, but also determines how important they are for the promisee, and thus the importance of the ‘detriment’ suffered by him.89 It is, therefore, primarily for the parties themselves to make clear what importance is to be attached to each obligation and to the corresponding interest of the promisee.90 Contractual clauses that explicitly define certain obligations as ‘fundamental’ or ‘essential’ have become increasingly common in recent contracting practice

Examples. 23 Accordingly, if delivery by a fixed date has been agreed upon by the parties in a way that makes time of the essence,96 the contractually-based interest in taking delivery on that date is so fundamental that the contract can be avoided, regardless of the actual damage suffered by the buyer as a result of the delay in delivery.

Outside the groups of typical cases that have been addressed above, the courts applying Article 25 have dealt with a great number of quite diverse scenarios. In doing so, there seems to be a general agreement that there is no fundamental breach if the seller can (and will) cure without a delay that in itself would constitute a fundamental breach, and if the cure as such would not cause the buyer unreasonable inconvenience: Such curable defects do not reach the threshold of Article 25

Even if serious, a breach of a non-contractual (eg tort) duty is not necessarily a fundamental breach of the contract, or even a breach at all: A product that is ‘defective’ under domestic or international product liability rules because it fails to reach the safety standards expected by the public75 may be in accordance with the contract, if its features have been agreed by the parties. Even if the defect is a breach of the contract, it may not be ‘fundamental’ in the sense of Article 25, even where the defect has caused personal injury or damage to property. (A defect in a switch, the value of which is small compared with the value of the purchased machine it forms part of,76 is not necessarily a fundamental breach of contract justifying avoidance of the contract, regardless of whether or not the defective switch has already caused consequential damage to the machine or other goods.) In cases of a violation of extra-contractual duties (as notably obligations in tort) it should be decisive, whether and to what extent the duty of care concerned has been incorporated into the sales contract by the parties as a contractual obligation of such importance (‘being of the essence’) that its violation constitutes a fundamental breach under Article 25

The definition of a threshhold eventually adopted in Article 25 has occasionally been criticized by law and economics scholars for its vagueness, and the alleged failure to provide a cost-effective default rule suitable for many parties.33 It is submitted that the exact opposite is true: The preference for an economically efficient system of remedies was one of the decisive reasons why the drafters of the Convention chose to limit the unwinding of CISG transactions to cases of ‘fundamental’ breach, since the frequently resulting need to have the goods reexported from one country to another is costly and usually less efficient than a recourse to damages or other remedies.34 In defining where this threshold lies for each individual contract, Article 25 has the function of transferring the parties’ mutual preferences—as (p. 422) expressed in their contract35 or detectable from the circumstances of the transaction— into the Convention’s default remedy system, thereby adapting its rules to the particular case at hand.

Some advocates try to rely on similar domestic legal norms. Against this background, it is of paramount importance to remember that domestic law was not employed in drafting Article 25, which was exclusively developed on the basis of ULIS.49 It would therefore be a grave mistake and a violation of both Article 25 and the CISG’s general principles of interpretation (Article 7(1)) to rely on these ‘false friends’ (faux amis) from domestic law in construing the Convention,Guidance should instead be taken from Article 25’s wording, its legal history and its past interpretation by courts and commentators, as described in detail below

Article 25 does not in itself grant a remedy to the parties; rather, the definition of ‘fundamental breach of contract’ contained therein constitutes a precondition for a number of remedies defined elsewhere in the Convention:24 Firstly, if the party affected by a breach of contract is to have a right to avoid the contract in accordance with Articles 49(1)(a), 51(2), 64(1)(a), 72(1), or 73(1), (2), the breach must constitute a ‘fundamental breach of contract’.25 Furthermore, the existence of a fundamental breach of contract is a precondition of a buyer’s claim for the delivery of substitute goods (Article 46(2)

Although, CISG contains no rule to determining the place of the contract formation, according to Pr. Schwenzer, this is not a gap. Subject to contrary agreement of the parties (and its recognition by the governing domestic law), or to a specially significant link between a particular rule and the place of the conclusion of the contract, or between a provision agreed by the parties and that place, it can be assumed that the contract was concluded at the place where the declaration perfecting the contract reached its addressee or the act amounting to acceptance was performed (Article 18(3)). This view is also supported by the case law under the convention - Roder Zelt-und Hallenkonstruktionen GmbH v Rosedown Park Pty Ltd and Reginald R Eustace, Fed Ct Aust (Adelaide, SA), 28 April 1995, CISG-online 218, [1995] 57 FCR 216 et seq (based on Arts 18 and 24)

Withdrawal is a declaratory act; domestic law applies to questions of its maker’s legal capacity, defects of intent, or power of representation

An acceptance may be withdrawn only before or at the same time as it would have become effective. The decisive point in time is the moment at which the withdrawal has reached the offeror (Article 24), while it is irrelevant if he has actually read it.4 On

A late acceptance can still give rise to a contract. It is, however, a precondition that it has reached the offeror. The offeror can then treat the late acceptance as an acceptance.17 However, the offeree must have intended his declaration to constitute an acceptance.

If a contract is to be concluded despite a late acceptance, it is necessary for the offeror to inform the acceptor that he is treating the acceptance as effective

The offeror’s declaration of approval therefore cures a late acceptance, even if his declaration is lost or arrives late.28 Although it does not have to reach the addressee, the declaration of approval is a declaratory act. Questions of legal capacity, voidability etc must therefore be examined by reference to domestic law.2

If late acceptence is treated effective by an offeror, then The contract is formed not when the offeror gives written notice of approval to the offeree or orally informs him thereof, but retroactively at the time when the late declaration of acceptance reached the offeror;43 in the case of conduct equivalent to acceptance (Article 18(3)), the contract is formed at the time when the conduct was performed

If the offeror wishes to prevent the conclusion of a contract, he must protest ‘without delay’ by dispatching notice or orally informing the acceptor. The only requirement for a [protest to be effective is (1) to be dispathced if it is in written, or (2) to be heard by an adressee if it is oral

In cases when offer expired due to either late dispatch or discernable delay, the assent of an oferree shal be considered as a valid late acceptence. However, when a time period for an acceptence fixed in an offer was expired due to other circumstances (rejection) than, the assent of an offerree may be considered as a counter offer

in case of a battle of forms, it is generallty agreed that this problem must be solved by art 19. Scholars distinguish: 1. Last shot rule - 5 Some scholars advocate—albeit sometimes with resignation—the ‘theory of the last word’, which favours the party who last referred to its standard terms without these being subsequently objected to. 2. Knock out rule -n Others favour a conclusion of the contract without the colliding clauses— Restgültigkeitstheorie or ‘knock-out rule’—the clauses ‘knocked out’ to be replaced by the provisions of the Convention (or other provisions, in case the matter concerned is not governed by the CISG) 3. other approaches = recourse to domestic law

For average cases, commentators are suggesting a maximum of three working days;114 case law under the Convention has considered a period of five days to be too long in case of a Chinese–Swedish sales contract that was concluded by fax.115 If the circumstances of the case indicate that a reaction is particularly urgent, this can require an objection by electronic communication rather than by normal mail

6 Changes to the terms of an offer made by an acceptance must affect the content of the offer as interpreted under Article 8. If the parties agree in substance, then discrepancies in the wording (as can occur in international transactions owing to inaccurate translation, insufficient command of a foreign language, or even typing or transmission errors) are not different terms within the meaning of Article 19

It must first be established whether there are different terms at all or whether, despite the differences in wording, there is agreement in substance.88 In a second step, it must then be established whether a different term is material.8

However, if interpretation cannot flesh out the offer so as to cover additional points contained in the acceptance, Article 19 applies. In so far as an offer is silent on a matter, it must be assumed that the offeror acted on an assumption that his offer is supplemented by the rules of the CISG, so that additional terms in the acceptance must also be compared with the rules of the CISG.26 If the buyer’s declaration of acceptance contains a provision to the effect that any defect entitles him to avoid the contract, that conflicts with the rule implied into the seller’s offer by Article 49, namely that the buyer may avoid the contract only where a defect amounts to a fundamental breach of contract. If, on the other hand, the seller’s acceptance provides that the buyer must examine the goods within a short period and give notice of defects within a reasonable period, then that accords with the rules in Articles 38 and 39, which, in the absence of other proposals in that respect, are to be understood as part of the offer; such a term is therefore not different from or an addition to the terms of the offer.

The time24 and place of delivery, even the type of packaging,25 may also be ‘essentialia negotii’ in a particular case, but only if exceptional circumstances so require. For an offer of software, the terms of licensing might be essential.26 If previous negotiations or practices between the parties show that an offer must specifically refer to additional details and then be agreed by an acceptance, a proposal without such details does not constitute an offer

An offeror may want to incorporate certain standard or business terms in its contract, To do that they have to be a part of the offer. Mere reference to the existing standart=d terms is enough when offeree already has a positive knowledge of them. If she doesnt then an oferror must ensure that offeree is aware of the standard terms by conducting "making avaulable test"

For example, where the parties have had a long-term business relationship with each other, a reference to a particular number may suffice to indicate the goods and their amount, and possibly also the price.43 However, a party may display his intentions in some other form capable of interpretation, for example, by sending goods with a price ticket attached to indicate an offer in those terms

An offer is also capable of acceptance if ‘a reasonable person of the same kind’ and ‘in the same circumstances’ as the recipient would have understood the necessary minimum content to have been expressed in sufficiently definite terms (Article 8(2)).50 If the party making the declaration did not intend it to have such a meaning, (p. 274) domestic rules concerning defects of intent may apply (eg those relating to avoidance for mistake)

The elements listed above may, however, still be insufficient:13 Although the wording of Article 14(1) does not clearly say so, the provision is based on the assumption that also the identity of the offeror—ie the person who will be legally bound by the offer—can be determined

A proposal for concluding a contract does not have to be expressly designated as an ‘offer’;5 a declaration labelled ‘letter of confirmation’,6 ‘pro forma invoice’,7 or ‘invoice’8 may similarly constitute an offer under Article 14(1)

The offer is a juridical act and must therefore comply not only with the requirements of Article 14 but also with the rules of the applicable domestic law concerning the effectiveness of such acts (ie as regards capacity to enter into legal transactions, certain types of mistake,1 and power of representation)

intention to be bound + minimum content

Art 7(1) - to interpret

That means, first, that there was actual knowledge of those circumstances or at least an assumption that they might exist (although it is not absolutely necessary that such an assumption be correct).38 Secondly, it means that both parties must have had such knowledge or made such an assumption.39 In practice, however, it will normally depend on the knowledge of the party who has entered into negotiations with the party with several places of business, because the latter will be aware of the internal circumstances.4

Such circumstances include addresses (templates) used in communications, inspections of the goods at a certain place, visits to a party’s office, etc.4

How that is to be determined will depend on the particular case in question.21 In that regard, the rule creates some doubts, since it refers cumulatively to both the closest relationship to the contract and to the performance of the contract.22 It will quite often be the case that a contract will be concluded by one place of business of a party but performed by, or for the benefit of, one of its other places of business.23 Regularly, the place of business of a negotiator or a—disclosed or undisclosed—agent will not have the necessary close connection to be of relevance, it is the party itself that normally has the closest relationship to the contract and its performance.

общее собрание; совет директоров (наблюдательный совет); коллегиальный исполнительный орган; единоличный исполнительный орган.

within that time it is irrevocable

i) Withdrawal of an offer can only be made before or at the same time as arrival of an offer; while revocation takes place at the time when an offer has already reached the offeree but this party has not yet despatched an acceptance.

Paragraph 2 requires for contract supplementation to apply that the parties (at the time of contract formation) knew or ought to have known of the trade usage (the subjective element137). Unlike under Article 8(1), no greater lack of care is required138 because the objective requirements in Article 9(2) substitute the subjective elements in Article 8(1). The requirement is therefore of only minimal practical importance, especially since a lack of due care can regularly be inferred from the fact the usage is objectively known.139 The function of this requirement is to ensure that there is a sufficient link between the usage and the parties;140 the commitment of a party to completely unknown trade usages is therefore possible.141 The criteria for the parties’ degree of care are accordingly not very numerous: implied knowledge regularly arises from a party’s residency in an area where the usage is observed.142 A party’s regular activity in the relevant usage’s sphere of observance (whether place or industry) is also sufficient.1

Article 9(2) requires that the particular usage be widely known to, and regularly observed by, parties to contracts of the type involved (the objective element110).111 Universal knowledge is not required.112 Insofar as it does not concern a universal trade usage, this requirement must be met for the particular trade concerned.

The requirement that the usage be internationally known and observed excludes trade usages developed solely for domestic transactions from the sphere of application of Article 9(2).130 Nonetheless, worldwide observance is not required;131 local or regional trade usages can be sufficient.

Trade usages are accordingly rules of commerce which are regularly observed by those involved in a particular industry or marketplace.

aragraph 2 does not establish a fictional intent of the parties,91 and it certainly does not concern an element of the contract independent (p. 188) of party intent.92 Rather, this provision corresponds to the standard of contract interpretation set in Article 8(2) which protects the legitimate expectations of the parties

If the further requirements of paragraph 2 are met, it is clear that the usages take precedence (on the basis of Article 6)95 over the rules of the Convention.96 This also follows from the purpose of Article 997 and holds true for non-mandatory national rules which assist in filling in lacunae in the Convention under Article 7(2

Only practices observed between the parties matter;54 a more widespread observance is insignificant.55 Standard terms can also be subject of the practice.56 Practices cannot be established between the parties without preceding business contact.57 Moreover, the course of conduct must have created a justified expectation that the parties will proceed correspondingly in the future.58 It is therefore necessary that the parties recognize their conduct as a practice.59 In any case a certain frequency and duration is necessary60 more than the parties simply repeating a particular circumstance once.61 Often a circumstance twice repeated between the parties has been deemed insufficient,62 in (p. 186) particular if the circumstance occurred within a constellation which was atypical for the business relationship.63 On the other hand, CISG provides no guidance for how many transactions are necessary to establish a practice

Examples of practices established between the parties that may be accepted in court concern matters such as the time for delivery of replacement machinery parts,69 or the tolerances in case of delayed performance and their relevance for a fundamental breach in the sense of Article 25.70

According to Article 9(1) the parties are bound by any usage to which they have agreed. The question of how exactly the term ‘usage’ in the sense of paragraph 1 is to be understood is in the end without importance, since under Article 8 any rule to which the parties (p. 184) refer—with sufficient clarity30 but not necessarily by explicit reference31— applies by virtue of agreement

Article 9(2) does not establish any normative validity of the respective international trade usages, it only establishes terms implied by usage.

internationality, uniformity, good faith

when conflict of laws rules lead to the applicability of a contracting state. The conmflict of laws rules may vary from state to state, it may be a purely domestic rule or a uniform one derived from international conventions such as 1955 hague convention. Generaly, there are two approaches (1) territorial - law od the seat; (2) delocalized - international conventions; (3) lex meratoria

in practice it is undisputted that art/8 also regulates interpretation of contracts and the recourse to deomestic law is theregore excluded

COntracts of sale where the obligation of the buyer to supply services is predominent fall outside of the CISG. CISG is applicable to the mixed contracts only if it is a single contract for the sup[ply of goods and services. Other than that CISG may apply to the contract of sale, and domestic law to the contract of service. As to what constitutes the preponderant part, the advpocates mostly favour the economic value test which is to compare the value of goods (or entire contract) with the value of services on the basis of the prices that would have been obtained if there were separate contracts. If the value of services is more than 50% - CISG does not apply

It does not mean that buyetr cannot supply any materials. Sometimes it has to, however, the bottom line is where this "substantial part" lies. There are three ways to define: economic value, vilume, respective contribution to the end product. Most scholars favour economic value test. This means that CISG does not apply where the value ofb contributions of a buyer to the supply of materials is 50% or more. The importanrt rule is to compare party's contributions to each other and not to the value pf end product.

nationality of the contract is independent from the nationality of the parties

Article 1(2) does not require that the fact that the parties’ places of business are in different States is discernible. Rather, this fact must not have been concealed.

three sources from which the international nature of the contract must be apparent. First, previous contacts may point to the different place of business. This does not require previous contracts of sale; any correspondence suffices.157 Secondly, the foreign connection may be apparent from dealings between the parties.158 That includes not only correspondence and direct contractual declarations, but also the entire image and appearance presented by the other party or—if e-mails are used—a Toplevel-Domain which is different from the one used by the respective counter-party.159 Finally, regard must be had to information disclosed by the other party to the contract.160 It is not necessary for it to refer expressly to the foreign connection;161 the position is the same as that for dealings between the parties. Information provided by the respective counter-party eg includes advertisements.

t is thus sufficient that there were indications of the party’s place of business being in a different State, but not necessarily a particular State.165 Nor (p. 45) is it necessary for such indications to point to a different Contracting State.

In line with the general view a ‘place of business’ exists, if a party uses it openly to participate in trade and if it displays a certain degree of duration, stability, and independence.

nmoveable, tangible objects - at the time of delivery

Since CISG does not specifically define what contrat of sale is, it must be understood as any reciprocal contract where one party exchenges goods for a particular asset. Barter contracts are included. In mixed contracts the decisive criteria must be had to the predominent part of the contract. If the predominent part is sale of goods then CISG will apply.

who is buyinmg?

this is audit - for audit you need license, but in case of revission its shareholders check themselves

it is a revission commitee

there is a separate law

in case when a corporate is involved in the transaction with a shareholder who has 20 or more % in a transaction with another entiotty where this shareholder acts as a representative of another company, then this shareholder is an interested person, thus his interest must be a purely business. Both BoD and shareholder will have to report to the BoD

amount of shares that can be purchased back by a company

those who are not mentioned here are not officials but just employees, they will not be liable in case of any fraudulent activities of JSC

the difference between BoD and executive body is that executive body manages daily activities, executive body signs all contracts and etc The BoD usually have some long term plans such as getting into top 5 sellers and executive body undertakes all necessary measures to achieve it. Executive Body (CEO) is being nominated by BoD and CEO reports to BoD So CEO only can sign contracts but sometimes if CEO is absent there can be a chief operting officer to sign a contracts

who are in the list? - those who were shareholders at least 30 days before

it says other mass media. B

what;s that where to find?

so they determine it themselves or what;s the procedure?

are they responsible with their own money

how often does a company is obleged to pay dividends? once a year? is it imperative? are there circumstances besides bankroptcy where JSC will not be obliged to pay? when there is a bankroptsy, are the bonds still have to be paid?

what is the role of funds

partially?

Акционерное общество вправе выпускать облигации с обеспечением на величину обеспечения, предоставленного самим обществом либо предоставленного обществу в этих целях третьими лицами ?????

equity capital

A bond is a fixed-income instrument that represents a loan made by an investor to a borrower (typically corporate or governmental). A bond could be thought of as an I.O.U. between the lender and borrower that includes the details of the loan and its payments. Bonds are used by companies, municipalities, states, and sovereign governments to finance projects and operations. Owners of bonds are debtholders, or creditors, of the issuer.

1 share b 100 share - equally??

why? what if a shareholder does not want to sell?

Preference shares, more commonly referred to as preferred stock, are shares of a company’s stock with dividends that are paid out to shareholders before common stock dividends are issued. If the company enters bankruptcy, preferred stockholders are entitled to be paid from company assets before common stockholders.

Most preference shares have a fixed dividend, while common stocks generally do not. Preferred stock shareholders also typically do not hold any voting rights, but common shareholders usually do

after what time since the registration of JSC, the shares must be issued

independent director is the one who is not affiliated with the company and was not elected as a maember of BoD for last 3 years

the first founders are getting the first shares, those shares are not publlic offerings. Usually when company just starts its activity first shares are usualy not for public offering because the company does not have reputation yet, if company does not have reputation nobody would buy your shares. That is why you need to have a marketignstrategy and gain thid reputation of a asolid and promisy company. This [rovission is only applicab;e to publoc JSC not just open

what is the date?

???

what if it does?

meaning?

При слиянии все компании, участвующие в реорганизации, ликвидируются, а на их месте возникает новая. В случае присоединения одна из ранее существующих организаций останется.

где эти основаниея?

чем отличается преобразование от реорганизации

то есть характер деятельности все же нужно указывать. Как это вяжется со статьей выше?

огранич. ответственность

что если АО по каким то причинам акции не выпускает, должно ли оно быть реорганизованно? Если да то как кто? Также как часто акции вообще должны выпускаться? Через сколько после открытия АО, доожна быть выпущена первая акция?

all shares have to be fully paid at the miment of state registration

The term proxy vote refers to a ballot cast by a single person or firm on behalf of a corporation's shareholder who may not be able to attend a shareholder meeting, or who may not choose to vote on a particular issue. Shareholders receive a proxy ballot in the mail along with an information booklet called a proxy statement, which describes the issues to be voted on during the meeting. Shareholders vote on a variety of issues including the election of board members, merger or acquisition approvals, or approving a stock compensation plan.

Cumulative voting is a type of voting system that helps strengthen the ability of minority shareholders to elect a director. This method allows shareholders to cast all of their votes for a single nominee for the board of directors when the company has multiple openings on its board.

founding agreement. Nothing about the charter

юр лицо отвечает по своим обязательсвтом своим же имуществом, а если недостаточно то тогла имуществом собственника

why is it re-registration?

if a person was away and did not hear, or in military

but usualy if there are no other heirs the court usualy support unless a person may have not been answering the phone for example or smthg else

имеется ввиду либо маленькие дети либо те кто не может раьотать ввиду каких лиюо заболеваний

раннее было написано что любой владелец можеь предявить виндикационный иск

деликы?

как это защита прав в админимстративном порядке

,??

не приостановление, но исчисление занаво

alienate

какое расстояние? adjoining land plots

residential premises and historicaly important monumentums cannot be destroed

EASMENT permission of an owner of a land to some one to use it

anything that does not belong to a private property is basicly governmental

you can claim things but not money usually because it is very hard to prove that they belonged to you

если имущество требует регистрации

Поступления, полученные в результате использования имущества (плоды, продукция, доходы), принадлежат лицу, использующему это имущество на законном основании, если иное не предусмотрено законодательством или договором об использовании этого имущества

ри слиянии юридических лиц права и обязанности каждого из них переходят к вновь возникшему юридическому лицу в соответствии с передаточным актом.

1. При присоединении юридического лица к другому юридическому лицу к последнему переходят права и обязанности присоединенного юридического лица в соответствии с передаточным актом.

2. При разделении юридического лица его права и обязанности переходят к вновь возникшим юридическим лицам в соответствии с разделительным балансом.

3. При выделении из состава юридического лица одного или нескольких юридических лиц к каждому из них в соответствии с разделительным балансом переходят права и обязанности реорганизованного юридического лица.

4. При преобразовании юридического лица одного вида в юридическое лицо другого вида (изменении организационно-правовой формы) к вновь возникшему юридическому лицу переходят права и обязанности реорганизованного юридического лица в соответствии с передаточным актом.

какие существуют основания прекращения права?

должен ли собственник имущества спрашивать разрешения у собственника зем уч перед каждым своим действием в отношении либо уже существующих сооружений либо чтобы посторить чтото на учаске на котором тот имеет право пользоа=вания?

3 months

does it mean that they can enforce a buyer to sell a property he just biufgt?

No that actually measn that if a seller has an intention to sell his shared property (franctional) then other owners shall be first in the list of buyers

отчуждение?