国际贸易实务课堂案例.doc

《国际贸易实务》双语课堂案例剖析

Chapter Two and Three
General Procedures of Export and Import Transaction&
Contracts for the International Trade

Case One 案例一
1. Mr. Smith, an American businessman, sold a batch of IBM computers to a Hong Kong importer, Mr. Chen .The sales was concluded in the United States of America on the terms of CIF Hong Kong. During execution of the contract, disputes arose between the seller and the buyer on the form an interpretation of the contract. In such a case, did the law of the USA or the law of Hong Kong apply to the disputes? Why?

Case Two 案例二
2. Mr. Anderson intended to sell a plane to Mr. Johnson. In his cable, Mr. Anderson offered: “Confirm sale of a plane…Please send 5000 pounds by telegraphic transfer.” Mr. Johnson cabled back immediately: “Confirm purchase of your plane, terms and conditions same as your cable. I’ve sent the 5000 pounds to your Account Bank who keeps your money on your behalf until delivery of the plane. Please confirm delivery within 30 days from the date of this cable.” Mr. Anderson did not reply and sold the plane to another buyer at a much higher price. Disagreements occurred between the two parties about whether the contract was concluded effectively. In such a case, was the contract concluded? Why?

Case Three 案例三
3. A Chinese export company sent on July 1 an offer to a French trading company ,stipulating for the reply to reach them before July 10. The French trading company cabled its acceptance of the offer on July 8. Because of the delay by the post office, the acceptance did not reach the Chinese company till on the morning of July 11.And before receiving the acceptance, the Chinese company was informed that the prices of the said products were rising rapidly，the seller refused the acceptance immediately.
Question: Was the acceptance effective? Why?

Case Four 案例四
4. A French buyer visited a Chinese trading company to buy some goods in the morning. When Chinese seller offered the price, he didn’t say anything. But in the afternoon, the French buyer visited again and accepted the morning’s offer. At this moment, Chinese company found the price of this goods on the international market was rising, so how could the Chinese trading company deal with? Why?

Case Five 案例五
5. Our company made an offer with Italian buyer, which is valid before 10th of this month. Because of the post bureau’s late in delivery, we have received the acceptance on 11th. At this moment, we found the price of these goods on the market was rising, How can we do?

Case Six 案例六
6. Company A made an offer for a farm product to Company B stating: “Packing in sound bags”. Within the validity, Company B replied “Refer to your telex first accepted, packing in new bags”.On receiving the reply, Company A began to purchase the goods for export. Days later, as market price of the commodity was falling, Company B wrote to Company A “No contract is entered between us, as you failed to confirm our changing of the packing requirement.” Company A argued that Company B’s acceptance was effective and the contract was established then.
Question:
1) What is your opinion?
2) Give the reason to support your opinion
3) How to prevent such dispute.

Case Seven 案例七
7. In 1996, a certain export company of China sent a group of businessman to the United States for purchase of equipment. In New York, both parties reached an oral agreement on such items as specifications, unit price, and quantity. Upon leaving, the group indicated to the other party that, when they go back to Beijing, they would draw a contract, which would become effective after being signed by both parties. After going back to Beijing, the group found that the clients withdrew their import of the equipment, and thus the contract was not signed and the L/C was not opened either. The US side urged the Chinese side to perform the contract; otherwise they would lodge a claim with the Chinese side in the US. Please analyze the case and give an opinion on how the Chinese export company was to deal with this case and why?

Case Eight 案例八
8. A Chinese export company sent on June 1 an offer to a businessman living in Italy, stipulating for the reply to reach them before June 10. The Italian businessman cabled his acceptance of the offer on June 8. Because of the delay by the post office, the acceptance did not reach the Chinese company till on the morning of June 11. And before receiving the acceptance, the Chinese company was informed that the prices of the said products were rising rapidly. What do you think is the best way for the Chinese company to deal with this case? Why?

Chapter Two and Three
General Procedures of Export and Import Transaction&
Contracts for the International Trade

Analysis: 案例分析

1 The law of the United States of America applies to this contract because: (a) this was a CIF contract; (b) the place of conclusion of the contract was in the USA; (c) the place of the execution of the contract was also in the USA. The seller completed these responsibilities after he delivered the goods at the port of the USA.

2. This contract was not concluded effectively. Item 1 of Article 19 of the CISG indicates, " A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection to the offer and constitutes a counter-offer.
In this case, though Mr. Johnson accepted Mr. Anderson's offer, his acceptance contained some additions to and modifications of the offer; for example, Mr. Anderson asked for " telegraphic transfer", Mr. Johnson sent the money to the bank to be kept there. According to Item 3 of Article 19 of the CISG, alteration to the mode of payment is material one, thus Mr. Johnson might keep silent and reject the acceptance.

3.According to Item 2 of Article 21 of CISG: “If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect. In this case, in order to avoid unnecessary loss, the Chinese company should telephone or dispatch immediately a notice informing that the acceptance is ineffective as it is late.

4.中国与法国均系《联合国国际货品销售合同公约》缔约国，洽谈过程中，双方对《公约》均未排除或作出任何保存。因此，双方当事人均应受该《公约》约束。按《公约》规定：对口头要约，须立即接受方能成立合同。据此，我方鉴于市场有趋涨迹象，可以予以回绝或提高售价继续洽谈。

5. 中国与意大利均系《联合国国际货品销售合同公约》缔约国，该案双方洽谈过程中，均未排除或作出任何保存，因此，双方当事人均应受《公约》约束。我方于11日收到意商旳接受电报属因传递延误而导致旳逾期接受。因此，如我方不能批准此项交易，应即复电告知对方：我方原发盘已经失效。如我方鉴于其他因素，愿按原发盘达到交易，签订合同，可回电确信，也可不予答复，此时接受即告失效。

6. A 公司与B公司旳第一封信函可视为发盘，在该发盘中A公司对包装做出了规定。而B公司对该发盘中包装条款进行了修改，可视为还盘，或新旳发盘，B公司发出还盘后A公司未进行答复，虽然它用行动表白受B公司发盘约束，但没有明确向B公司表达接受，此时觉得合同未成立。因此，B公司以此为由，拒不履行合同。A公司将陷入被动。
为了避免浮现此状况，A公司在收到B公司发盘时，应及时表达接受。

7. According to Article 11 of CISG: “A contract of sale need not be concluded in, or evidenced by, writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.” Though China and the US are both member countries of the CISG, China declared that it won’t be bound by Article 11 and its related articles. That is to say, any kind of contracts in China must be evidencing by writing. In this case, though both companies agreed orally as to the main terms of the sales contract, there is no writing evidencing the contract. This contract, according to Chinese law, is not effective.

8. According to Item 2 of Article 21 of CISG: “If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect. In this case, in order to avoid unnecessary loss, the Chinese company should telephone or dispatch immediately a notice informing that the acceptance is ineffective as it is late.

Chapter Four Trade Term

Case One 案例一
1. A Chinese import and export company concluded a Sale Contract with a Holland firm on August 5, , selling a batch of certain commodity. The contract was based on CIF Rotterdam at USD 2500 per metric ton. The Chinese company delivered the goods in compliance with the contract and obtained a clean on board Bill of Lading. During transportation, however, 100 metric tons of goods got lost because of rough sea. Upon arrival of the good, the price of the contracted goods went down quickly. The buyer refused to take delivery of the goods and effect payment and claimed damages from the seller. How would you deal with the case?

Case Two 案例二
2. A Chinese trading company E concluded a transaction in steel with a Hong Kong company W on the basis of FOB China Port. Company W immediately resold the steel to Company H in Libya on the terms of CFR Liberia. The L/C form W required the price term to be FOB China Port and the goods to be directly delivered to Liberia. The L/C also required “Freight Prepaid” to be indicated on Bill of Lading. Why did Company W perform so? What should we do about it?

Case Three 案例三
3. A Chinese import and export company concluded a Sale Contract with a German firm on October 5, , selling a batch of certain commodity. The contract was based on CIF Hamburg at USD 2500 per metric
ton; The Chinese company delivered the goods in compliance with the contract and obtained a clean on board B/L. During transportation, however, 100 metric tons of the goods got lost because of rough sea. Upon arrival of the goods, the price of the contracted goods went down quickly. The buyer refused to take delivery of the goods and effect payment and claimed damages from the seller.
Question: (1) Is the buyer’s refusal reasonable? Why?
(2)How should the buyer to deal with the loss?

Case Four 案例四
4． Company A signed a sales contract with a foreign buyer for exporting Tea Sets, under FOB term. At the buyer’s request, the seller agreed to charter a vessel at buyer’s account. When the date of shipment became due, the seller was still unable to get a vessel for shipment. The buyer not only disagreed to modify the date of shipment, but also cancelled the contract and claimed for loss, because the seller failed to effect shipment within the time stipulated in the contract. Is the seller responsible for failure to effect shipment for his inability to charter a ship?

Case Five 案例五
5. A firm imported a shipment of bed sheets under CIF term. On receiving the goods, the importer found that some of bed sheets were damp during transport. Meanwhile, the seller had negotiated documents, and the importer was requested to make payment for the imports. Whether the buyer should make payment, if the goods are damaged during transport?

Case Six 案例六
6. On FOB term basis, Seller A prepared the goods at the stipulated time, meanwhile , Buyer B informed A of the name of vessel and the date of shipment ,when the goods is lifted to the ship, it fell down on the deck ,so now who shall take responsibility? Seller or Buyer?

Case Seven 案例七
7. A merchant in South America placed an order with a Chinese export company for a certain commodity on CFR Asuncion terms .With a view to develop new markets, the export company immediately made an offer abroad on the basis of CFR Asuncion, and the transaction was soon concluded. When shipping the goods, however, this company came to realize that Asuncion is an inland city. As was the case, if the company had the goods transported to Asuncion, it had to , first of all, have the goods transported by sea to a seaport in Argentina or some other South American neighboring country. After that, the goods might be transport to Asuncion through river transportation or inland transportation. As a result, this company had to pay a considerable sum of freight charges. What can we learn from this case?

Chapter Four Trade Term
Analysis: 案例分析
1. It was not right for the buyer not to take delivery of the goods. In this case, the contract concluded between the seller and the buyer was on CIF terms, according to which, the seller’s responsibilities ended when he loaded the goods on board the ship and paid the freight and insurance premium; the risk separation was the side of the ship; that is to say, the risks were transferred to the buyer or the other parties concerned after the seller put the goods on board the ship. Since the documents presented by the seller were right and proper, the seller could directly get paid form the Issuing Bank of the L/C.
However, part of the goods got lost because of rough sea. Does this mean that the buyer suffered loss? It is definitely not the case because there are other two sub-contracts existing on CIF terms-I/P and Bill of Lading. In this case the buyer could claim damages with the insurance company, but he had to take delivery of the goods. Obviously, the actual reason for the buyer’s refusal to accept the goods in this case was that the prices of the goods were going down. This is, certainly, unjustified.

2. In this case the contract was concluded between Company E and Company W on FOB term, according to which the seller (Company E) ended his responsibilities when he delivered the goods on board the ship at the port of shipment. He did not need to pay for transportation of the goods or the insurance premium. Therefore, it was not right for W to ask E to pay the freight and indicate “Freight Repaid” on the Bill of Lading. The reason why W asked E to do that might be that he wanted to transfer the freight charges to E.
However, in practical dealings, foreign trade companies often come across such situations, especially when a contract is concluded with an agent, who wants to resells the goods. In this case, E might comply with W’s request, but he had to indicated that the freight should be borne by W.

3.(1)It was not right for the buyer not to take delivery of the goods. In this case, the contract concluded between the seller and the buyer was on CIF terms, according to which, the seller’s responsibilities ended when he loaded the goods on board the ship and paid the freight and insurance premium; the risk separation was the side of the ship; that is to say, the risks were transferred to the buyer or the other parties concerned after the seller put the goods on board the ship. Since the documents presented by the seller were right and proper, the seller could directly get paid form the Issuing Bank of the L/C.
(2)In this case the buyer could claim damages with the insurance company, but he had to take delivery of the goods.

4. 在FOB术语下，作为买方必须负责租船订舱。此案， 买方规定卖方代其租船订舱，卖方仅为代办性质，租船产生旳