代写美国大学外贸交易dissertation
近十年，俄罗斯越来越融入欧洲及世界的经济体中，与此同时，国际贸易也常常出现在俄罗斯企业的商务活动中。对于俄罗斯的企业来说，外贸交易必须要建立在为俄罗斯撰写的销售合同之上。没有达成合约的交易是无效的。（俄罗斯联邦民事法典，162条款，）书面证据（通信，发票等等）是不能够用来证明外贸交易的。根据某些国家的法律，是不需要书面形式的合同的事实上，大多数的西欧国家都是以上这种情况。1980年维也纳国际货物销售贸易公约不允许以书面的形式或受制于其他要求的形式来总结贸易合同。这一公约允许以包括证人在内的任意一种方式来解释合同。但是当苏联加入了公约后，第十一条条款却规定，如果有超过一个党派在苏联的经济贸易中有一席之地，那么这个条款便不再适用。现在，随着前苏联解体，俄罗斯成立，这个规定对俄罗斯依然有效。
对于合同的定义在不同的国家会有一定的变化。（案例，合同法的材料和文本，休比勒，塔隆，路多维奇，罗伯特威廉姆斯编纂；哈特出版社，2002）
In the recent decade Russia becomes more and more integrated in European and world economy and along with this integration the Russian companies get involved in international deals in their regular everyday business activities. Foreign trade transactions must be committed based on sales contract in writing for Russian companies. Failure to form a contract entails the invalidity of the deal (Article 162 of Civil Code (CC) of Russian Federation (RF)). The written evidence (correspondence, invoicing, etc.) confirming the conclusion of the foreign trade transactions are not allowed. Under the laws of some foreign countries the written form of the contract is not required. As a matter of fact for most of the West European countries that is the case. Vienna Convention for International Sales of Goods 1980 (CISG) does not require that the sales contracts to be concluded in writing, or subject to any other requirement as to form (Article 11). The Convention allows the proof of the contract by any means, including witnesses. However, when the Soviet Union joined the Convention, a reservation was made on the inapplicability of the provisions of Article 11, if at least one of the parties has its place of business in the USSR. Currently, the reservation is valid for Russia as successor of the USSR.
Definitions of the contract that can be found in the codes of different countries have certain variations (Cases, materials and text on Contract Law, edited by Hugh Beale, Denis Tallon, Ludovic Bernardeau and Robert Williams;Hart Publishing 2002)
Code civil (French Civil Code)
Article 1.101: A contract is an agreement (convention) by which one or more personsoligate themselves to one or more other persons to give, or to do or not to do something.
Codice civile (Italian Civil Code)
Article 1321: Definition: A contract is an agreement between two or more parties for the purpose of creating, providing for or extinguishing amongst themselves a legal patrimonial relation.
Burgerlijk Wetboek (Dutch Civil Code)
Article 6:213: A contract in the sense of this title is a multi-lateral juridical act whereby one or more parties assume an obligation towards one or more other parties.
BGB
305: For the creation of an obligation by a juristic act, and for any alternation of the substance of an obligation, a contract between the parties is necessary unless otherwise provided by law In the latest edition of the German Civil Code (BGB) the above definition of the contract can be found under § 311(1).
The Civil Code of Russian Federation (CC RF ) defines the contract in the Article 420(1):
Article 420. The Concept of the Contract
The contract shall be recognized as the agreement, concluded by two or by several persons on the institution, modification or termination of the civil rights and duties. In the following discussion we will be concentrating in comparison of the BGB and CC RF in connection to international contract of sales of goods and more specific the section of warranty. Its contents becomes especially relevant when sophisticated technological equipment requiring installation works is imported on the territory of Russia under the contract. Very often the parties located in different countries do not pay adequate attention to the legal content of this section, and do not realize the importance of serious and detailed work on it.
Civil Codes ob both countries recognize four types of warranty:
1.Agreed or contracted warranty. In common law countries it is also called expressed warranty. It includes specific promises made by the seller to the buyer relating to the goods which are the subject of the contract - i.e. specifications, design, representations in samples and models, and proof of prior quality.
2.Implied warranty of merchantability. It is related to the quality of the goods and is based on accepted commercial standards of quality, fitness for intended use.
3.Implied warranty of conformity of the goods for particular purpose.
4.Warranty of Title.
CC RF:
Article 469. The Quality of Goods
1.The seller shall be obliged to transfer to the buyer goods whose quality corresponds to the contract of sale.
2.In the absence of quality terms in the contract of sale the seller shall be obliged to hand over to the customs goods suitable for the purposes for which goods of this sort are usually used. If the seller was informed by the buyer about the concrete purposes of the acquisition of goods during the conclusion of the relevant contract, the seller shall be obliged to transfer to the buyer goods suitable for use in conformity with these purposes.
3.In case goods are sold according to sample and/or description the seller shall be obliged to hand over goods which correspond to the sample and/or their description.
4.If by a law or in a procedure established by a law for mandatory requirements for the quality of saleable goods, the seller engaged in business shall be obliged to transfer to the buyer goods which meet these mandatory requirements. Under the agreement between the seller and the buyer the former may hand over to the latter goods meeting the higher requirements for quality as compared with the mandatory requirements stipulated by a law or in a procedure established by a law.
The seller is obliged to transfer the goods of good quality. If the quality requirements defined in the contract, the proper quality is considered according to the contract. In Russia two ways of quality specification is used for the contracts - a) based on normative standardization documents and b) based on quality indicators (reliability, energy consumption and other quantitative characteristics of the product). Also a combination of both methods can be used.
According to the Russian Law on Standardization the normative documents on standardization that are enacted on the territory of RF are The Russian State Standards (GOSTs), international standards that are used according to established procedure, industry standards and standards of particular enterprises.
The paragraph 2 of the Article is aimed at ensuring the proper execution of the contract and protect the rights of the buyer when the sale contract does not determine the quality of the goods. In this case, the seller is obliged to hand over to the buyer the product that fits for the purpose for which it is typically used. But if the buyer signing a contract reported to the seller the specific purpose of acquiring goods, it must be suitable for use in accordance with this purpose.
The proper response is recognized, if the seller sends the goods fit for any purpose, which it usually used. Unfit for normal use is considered good if it lacked certain qualities, and this hampers its actual use, leads to negative results or increased costs or expenses of the consumer (the Vienna Convention on the International Sale of Goods. Comment. MM: Legal. Lit, 1994. p.100).
BGB section 433 (1) states that
The seller must procure the thing for the buyer free from material and legal defects.
And in Section 434 (2) it is defined what is considered as a material defect:
The thing is free from material defects if, upon the passing of the risk, the thing has the agreed quality. To the extent that the quality has not been agreed, the thing is free of material defects if it is suitable for the use intended under the contract, if it is suitable for the customary use and its quality is usual in things of the same kind and the buyer may expect this quality in view of the type of the thing.
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Quality under sentence 2 no. 2 above includes characteristics which the buyer can expect from the public statements on specific characteristics of the thing that are made by the seller, the producer (section 4 (1) and (2) of the Product Liability Act [Produkthaftungsgesetz]) or his assistant, including without limitation in advertising or in identification, unless the seller was not aware of the statement and also had no duty to be aware of it, or at the time when the contract was entered into it had been corrected in a manner of equal value, or it did not influence the decision to purchase the thing.
The seller must supply the goods free from the rights of third parties, except when the buyer agreed to take the goods subject to the rights of the third parties. Thus, the seller must notify the buyer of those rights at the conclusion of the contract. Failure to fulfill this duty gives the buyer the right to demand a reduction of prices of goods or terminating the contract of sale, unless it is proved that the buyer knew or should have known of the rights of third parties on this product. That is theway warranty of title is defined in CC RF Article 460
BGB has the section with definition of the warranty of title - it is called legal defect and in section 433 (1) mentioned above it is stated that the goods shall be free from legal defects.
Section 435
Legal defects
The thing is free of legal defects if third parties, in relation to the thing, can assert either no rights, or only the rights taken over in the purchase agreement, against the buyer. It is equivalent to a legal defect if a right that does not exist is registered in the Land Register.
As can be seen the Codes see at the types of warranty that accompany the sales contract in the same way defining in slightly different manner.
Article 470. The Guarantee of the Quality of Goods
1.Goods which the seller is obliged to hand over to the buyer shall correspond to the requirements, stipulated by Article 469 of this Code, at the time of their transfer to the buyer, unless the contract of sale provides for a different time of defining the compliance of goods with these requirements and within the reasonable period goods shall be suitable for the purposes for which goods of this sort are usually used.
2.In case where the contract of sale provides for the submission by the seller of the guarantee of the quality of goods, the seller shall be obliged to transfer to the buyer goods which should meet the requirements, stipulated by Article 469 of this Code, during the time fixed by the contract (guarantee period).
3.The guarantee of the quality of goods shall also extend to all the complementary parts, unless otherwise provided for by the contract of sale.
Civil Code distinguishes two kinds of guarantees the quality of goods provided by the seller to the buyer: the so-called legitimate (p.1 st.470) and contractual (p.2 st.470).
Legal safeguards under the Civil Code is a pledge of the seller for lack of a commodity at the time of transmission gaps in its value or its suitability for the purposes envisaged in the agreement (see p.2 st.469 and the commentary thereto). The consequences of the transfer of goods with disabilities see p.1st.476 and commentary thereto.
The provisions of the Civil Code of the legal guarantee of quality clarify the requirements contained in the Fundamentals of grain boundary (p.1 st.76).
Position of the Civil Code on this issue in principle, coincides with the applicable provisions of the Vienna Convention of 1980 (Article 35 and 36). New compared to the Fundamentals of grain boundaries and the Vienna Convention is included in the Civil Code provision on the suitability of products for use not only at the time of his transfer, but within a reasonable time, which is a useful clarification.
Contract guarantee - this is an additional obligation for which the seller vouches for the fact that the product will meet the requirements of the contract within the time stipulated by the contract (known as the warranty period).
BGB
Section 433
Typical contractual duties in a purchase agreement
1.By a purchase agreement, the seller of a thing is obliged to deliver the thing to the buyer and to procure ownership of the thing for the buyer. The seller must procure the thing for the buyer free from material and legal defects.
2.The buyer is obliged to pay the seller the agreed purchase price and to accept delivery of the thing purchased.
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Section 434
Material defects
The thing is free from material defects if, upon the passing of the risk, the thing has the agreed quality. To the extent that the quality has not been agreed, the thing is free of material defects if it is suitable for the use intended under the contract,if it is suitable for the customary use and its quality is usual in things of the same kind and the buyer may expect this quality in view of the type of the thing.
Quality under sentence 2 no. 2 above includes characteristics which the buyer can expect from the public statements on specific characteristics of the thing that are made by the seller, the producer (section 4 (1) and (2) of the Product Liability Act [Produkthaftungsgesetz]) or his assistant, including without
limitation in advertising or in identification, unless the seller was not aware of the statement and also had no duty to be aware of it, or at the time when the contract was entered into it had been corrected in a manner of equal value, or it did not influence the decision to purchase the thing.
It is also a material defect if the agreed assembly by the seller or persons whom he used to perform his obligation has been carried out improperly. In addition, there is a material defect in a thing intended for assembly if the assembly instructions are defective, unless the thing has been assembled without any error.
Supply by the seller of a different thing or of a lesser amount of the thing is equivalent to a material defect.
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Section 435
Legal defects
The thing is free of legal defects if third parties, in relation to the thing, can assert either no rights, or only the rights taken over in the purchase agreement, against the buyer. It is equivalent to a legal defect if a right that does not exist is registered in the Land Register.
GUARANTEE - in the broadest sense - is a commitment to the proper performance of obligations of a counterparty to foreign economic contracts.
Sales and Leases of Goods
Every contract for the sale or lease of goods contains a warranty that the seller or lessor actually owns the property. Courts hold that this warranty is implied if it is not included in the contract, and a seller or lessor cannot disclaim it.
The two basic types of sales warranties are express warranties and implied warranties. Express warranties are specific promises made by the seller and include oral representations, written representations, descriptions of the goods or services, representations in samples and models, and proof of prior quality of the goods or services. Puffing, or the seller's exaggerated opinion of quality, does not constitute a warranty. For example, if a car salesperson says, "This car will last you a lifetime," a court would likely consider such a statement puffing and not an express warranty. Implied warranties are warranties that courts assume are implied in sales made by merchants. A merchant is a person who is in the business of selling the good or service being sold in the contract. All sales contracts made by merchants contain an implied warranty of merchantability. This is a promise that the goods, as they are described in the contract, pass without objection in the merchant's trade, are fit for the ordinary purpose for which they are normally used, are adequately contained, packaged, and labeled, and conform to any promises or affirmations of fact made on the container or label. If the goods are fungible, or easily replaced or substituted, such as grain or oil, the replacement goods must be of fair and average quality, fit for their ordinary purposes, and similar to previous goods delivered in the same contract or previous similar contracts. In some situations a sales contract may include an implied warranty of fitness for a particular purpose.
This kind of warranty is a promise that the goods are useful for a special function. Courts infer this warranty is implied when the seller has reason to know of a particular purpose for which the goods are required and also knows that the buyer is relying on the seller's skill and knowledge in choosing the goods. The buyer does not need to specifically inform the seller that the goods are for a particular purpose; it is enough that a reasonable seller would be aware of the purpose.
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For example, assume that a farmer, intending to plant no-till soybeans, approaches a seller to buy herbicide. Assume further that the buyer requests a particular herbicide mix but the seller suggests a less expensive mix. If the chemicals fail to kill crabgrass and the farmer has a low yield of soybeans, the farmer could sue the seller for breach of the warranty of fitness for a particular purpose because the seller knew what the farmer required. In some cases an implied warranty may be lost or waived. If a seller issues a disclaimer—for example, states that the goods are as is—and the buyer examines or refuses to examine the goods, the buyer may lose any implied warranties.
One important caveat is that courts will not find that an implied warranty has been waived if, under the circumstances of the sale, it is unreasonable to expect that the buye would have understood that there were no warranties under the circumstances of the transaction.
A seller may disclaim the warranty of merchantability either orally or in writing, but a seller cannot orally disclaim a warranty of fitness for a particular purpose. A disclaimer of the warranty of fitness for a particular purpose must be in writing, and the disclaimer must be conspicuous to the buyer.
Express warranties made by a seller may not be disclaimed. However, if a disclaimer and an express warranty can be construed as consistent, a court may uphold the disclaimer.
The remedies available for the buyer in case of receiving the goods of improper quality provided in Article 475 CC RF. The Article mentions two types of defects - the ones which removal does not require a disproportionate cost and (or) a considerable amount of time, and significant defect when it becomes impossible or too expensive to repair the goods.
Accordingly, the article gives to ways in dealing with the defects. In case of “light” quality differentiation:
a.a proportional reduction of the purchase price. This demand is made in the case where the goods can be used for its intended purpose without deficiencies, but in determining its price was not taken into account loss of quality;
b.free elimination of defects in the goods within a reasonable time. This demand is made, when the defects in the goods may be removed by repair, replacement of component parts, assemblies, units, etc.
Repair and replacement of the goods specified products made at the expense of the seller;
c.reimbursement of the expenses incurred by the buyer in connection with eliminating of the defects of the goods. The buyer can eliminate the defects himself or entrust it to others. Then he should be fully reimbursed, but the expenses must be reasonable, in any case they should not exceed the price of the product itself.
In the presence of significant defects the buyer is entitled to his choice :
a.Unilateral refuse to perform the contract of sale with returning all sums paid for the goods.
b.Replacement of the goods they purchased if the goods are not of unique nature (some sort of art -for example).
It can not be excluded the right of the buyer, if he so desires, to claim on free elimination of defects of the goods by the seller or reimbursement of the costs of corrective actions implying the fact the nature of significant defects allows the possibility to perform the corrections.
