Answer question 1, 2, 3 in attached file. Essay Example
International sale of Goods
Applicability of the International Convention on the sale of Goods
Mr. Andrew Townsend and Ms Nicole Bitterrand met in Brisbane, Australia during a conference on teaching English as a second language. Andrew is a manufacturer of computer software which teaches English language which he said had been on Market in Germany. As consequence a verbal conversation, the parties engaged into an oral contract upon which Ms Nicole ordered the supply of 1000 packages of the software. Unfortunately, she was informed by Germany businessman that the software has not been well accepted in Germany and above all, it’s overpriced. Nicole now seeks to cancel the order.
Who are the parties involved in this case?
Does the transaction have a sufficient connection with States that have ratified the United Nations Conventions on Contracts for the International Sale of Goods (Vienna Convention) so that its provisions will govern the Contract?
Has a valid contract for the international sale of goods been formed? Does it matter that the contract is not in writing?
If Bitterrand does not wish the contract to be governed by the Vienna Convention, can she exclude some or all of its provisions?
The sale of Goods (United Nations Convention) Act) (Chapter 283A), Vienna and case law
Resolution of issues
Issue one: parties to the case
Mr. Andrew Townsend, an American manufacturer and supplier of “Anglialingua”, a computer soft ware for learning English.
Ms Nicole Bitterrand, a French distributor of educational materials based in Paris, France.
Yes. The transaction has connections with states that ratified the Act as seen in part one and four of the Act1. The main purpose of the convention was to harmonize international business across countries. The convention provides that the Act has the force of law to all contracting member states.2 America is a member state. Although France is not a member state, the contract was concluded in Brisbane, Australia, which is a member state. Therefore the Act would apply under private law. However, the choice of law would be adhered to. In applying the Act, its provisions are interpreted in conformity with the domestic laws.
Yes, partially but not wholly concluded. The Act provides that a contract can be entered into orally3 even though some countries would like it to in written form. There would be a valid contract if all forms of international sale of goods were adhered too. This contract is still in preliminary stages and no documents have been sent. A contract can be entered into either by writing, orally or by conduct. From the facts this was an oral contract and would be governed by the act.4 However, in international sale of goods, contracts become binding when under CIF, the buyer has received the documents of transaction while under F.O.B, when goods have crossed the ship rail and are ready to be shipped by plane. In this case none of these have been done. It matters to know whether there is a binding contract formed but doesn’t matter whether it is written because, in case of breach, courts would be guided by the terms of the contract either made orally or written. Therefore there is no binding contract although there is an oral agreement to contract which would be concluded by receipt of documents of shipment as under CIF contract or if the soft ware packages cross the ship rail or if by air shipment when goods have been loaded into the plane as under F.O.B contract. Note that in applying the Act, the international chamber of commerce rules do apply as seen by the above incoterms.
Yes. She can exclude some or all the provisions of the Act as a matter of public policy because the convention prevails over other laws and allows such applicability under article six.5 This decision was also affirmed in “Golden Acres Ltd. v Queensland Estate Pty Ltd.”6 Although this Act is applicable to only contracting parties and France has not ratified the Act, if Ms Nicole wishes to be governed by the Act, the law in force would be that of Australia where the contract was concluded. Part III of the Act specifies the rights and obligations of the each party and their implied terms that goods must correspond with the quality, prescription and purpose for which they are bought.7 Bitterrand could exclude some provisions and rely on this part to repudiate the contract if she has genuine reason to believe that the software does not work in Germany as per the facts. However, even then, the domestic laws of the Australia would be applied because Australia incorporated the provisions of the convention into their domestic laws.8 This is choice of law is often referred to as conflict of laws (private law). The Act conforms to uniform and harmonized international rules of transaction. Therefore, she can exclude some or all the provisions. In some situations, the contract may be silent on which law is applicable or may specify the applicable law. In this situation, the choice of law seems to be silent but since the contract was concluded in Australia, the applicable law would be that of Australia. In this circumstance,9 where there no express choice of and the arbitrator would first apply the domestic laws and later invoked the provisions of the international conventions for the sale of Goods. Therefore, the fact that the Software has not been accepted well in Germany and is overpriced is an indication that the Bitterrand could exclude some or all the provisions of the Act on ground of public policy if she so wished.
1 Articles 1-13 and part iv (articles 89-101) the
sale of Goods (United Nations Convention) Act) (Chapter 283A)
2Ibid: Article 1
3 Supra n.1: article 11
4 Ibid: S. 14- 24 on formation of contract.
5 Ibid: Article 6. 12
6Per Peter Schlechtriem, “Requirements of Application and Sphere of Applicability of the CISG” (2005) 36 Victoria University of Wellington Law Review 781
7 Supra n. 1: Articles 25-88
8 In Australia, its part of the domestic laws in relation to S.5 and 6 of Vienna convention on the sale of goods
9 The law of New South Wales on the Sale of Goods (Vienna Convention) Act 1986 (NSW)
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