Edited by Djakhongir Saidov
Edited by Djakhongir Saidov
Edited by Djakhongir Saidov
This chapter is an introduction to this book that consolidates all chapters within the book’s underlying theme of unity and diversity in the law of sale of goods. It identifies challenges faced by sales law in the light of the diversity of commercial and transactional contexts and the multiplicity of non-state-made sources that can govern a contract of sale in the modern world. It argues, for example, that sales law should develop in a way that creates and promotes effective symbiosis between it and the industry sources. They complement one another and, taken together, provide a system of sources governing sales contracts.
This chapter compares the fundamental purposes of domestic and international sales, to uncover expectations concerning their functions. It then explores biases in how each tends to be viewed in practice and outlines evidence which is often overlooked or cast aside regarding current usage of uniform sales law. Thereafter, the chapter explores both the so-called forces behind uniformity, and those which might hasten its disintegration. However, this dramatic juxtaposition is redefined in accordance with the arguably more pertinent question, that is, whether such forces enhance or detract from optimal or efficient choices of law, and the effect such forces might exert to aggravate or reduce market distortions. As part of this exploration, the chapter highlights some practical benefits of uniform law. The author challenges readers to re-evaluate their biases by questioning domestic law with the same vigour as is usually reserved for uniform law alone.
Ulrich G Schroeter
This chapter addresses the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) and its position within the law of sales. The UN Sales Convention provides rules of law for cross-border sales contracts that today are in force in the majority of the world’s trading nations. The chapter adopts an analytical approach by first identifying the key purposes that the Sales Convention serves. Among these are: to offer commercial parties an acceptable set of default rules for their international transactions that is preferable to foreign domestic law; the preservation of party autonomy; the goal to provide a pragmatic set of commercial law rules that include best solutions for cross-border commercial transactions; to increase certainty and predictability for commercial parties. It then evaluates the extent to which these purposes have been achieved or are likely to be achieved in the future.
This chapter analyses the thorny question of whether, and if so to what extent, digitised material is subject to the law of sales in the same way as more conventional, more obviously corporeal, assets. In essence, this amounts to asking whether such material can be classified as ‘goods’. The discussion explores the normative implications of the classification question across several jurisdictions, and suggests a coherent means of addressing the issue, regardless of the particular regime in question.
Most commercial laws and many well-developed sales law regimes and arbitration rules are premised on the existence of and attach much significance to trade usages. This chapter assesses the role of usages in modern sales law and practice. Drawing on the experience of English law, the CISG and UCC, this work develops a framework for understanding the legal concept of a trade usage and reveals many weaknesses in how adjudicators deal with various preconditions for a usage, pointing to a real danger that what is held to be a usage in a court decision or arbitral award is a fiction. It argues that usages are in decline and, in any case, there should be little scope for the legal concept of a trade usage in international sales.
This chapter concentrates on an important point relating to the way England chooses to award damages in international commercial sale contracts. It will look at the preparedness of courts to award damages for breach of contract on a substantively abstract, rather than a concrete, basis; or, looking at the matter from the other side, awarding a fixed, easily-quantifiable amount of money and being prepared to turn a blind eye to complex arguments about how great, or small, a claimant’s ‘real’ financial loss is. The issue will be looked at from the perspective of three kinds of claim: non-delivery and non-acceptance, defective delivery, and late delivery.
The performance of a cross-border sale on cost, insurance, freight (CIF) terms depends on the seller’s ability to tender conforming documents to the buyer or to a bank which is either performing a documentary collection service or financing the transaction by adding a separate and independent undertaking to pay on presentation of conforming documents. Transitioning from paper documents to electronic data is desirable for a number of reasons, including: (i) to reduce costs; (ii) to increase efficiencies in the supply chain; (iii) to maximise visibility into business processes, so as to reach a greater understanding of transactional risks and to identify and address unmet customer needs. This chapter addresses the question, what effect would the replacement of paper documents with electronic data have on contractual obligations involving the tendering or presentation of documents? And, more particularly, are commonly applied rules governing such tender and presentation ready for the transition?