Replacement of non-conforming goods ‘free of charge’: is there a need to differentiate between B2B and B2C sales contracts?

2020 ◽  
Vol 25 (1) ◽  
pp. 67-91
Author(s):  
Yeşim M Atamer
Keyword(s):  
United Nations ◽  
Legal Systems ◽  
Sales Contracts ◽  
Council Directive ◽  
Business To Consumer ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods ◽  
Business To Business

Abstract The buyer’s right to request replacement of any non-conforming goods is today a standard remedy in many jurisdictions. This development was also influenced by the widespread effect of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the Council Directive (EC) 1999/44 on consumer sales, which both grant the buyer a right to replacement. However, some questions related to the requirement that replacement has to be ‘free of charge’ continue to be disputed under both legal systems, as well as under the newly introduced Council Directive (EC) 2019/22 on consumer sales. This article intends to discuss how the term ‘free of charge’ is being interpreted in business-to-business as well as in business-to-consumer sales contracts and whether there is any need to differentiate between the two types of sales contracts.

Ch.6 Performance, s.2: Hardship, Introduction to Section 6.2 of the PICC

2015 ◽  
Author(s):  
McKendrick Ewan
Keyword(s):  
United Nations ◽  
Legal Systems ◽  
Legal Doctrine ◽  
Force Majeure ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods ◽  
Contractual Obligations ◽  
The Relationship

Section 6.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with the concept of hardship. While hardship clauses are encountered with some frequency in international commercial contracts, few legal systems recognize a legal doctrine termed ‘hardship’. The innovative nature of Section 6.2 can be perceived by contrast with Art 79(1) of the United Nations Convention on Contracts for the International Sale of Goods (CISG). A discussion of Art 79 CISG, entitled ‘exemption’, leads on to a consideration of the relationship between force majeure and hardship. Hardship is most likely to be invoked in the context of long-term contracts where it is difficult, if not impossible, for the parties to make provision for every event that may have an impact on their contractual obligations.

Interpreting merger clauses in contracts governed by the CISG: delineating the scope for the use of extrinsic evidence

2021 ◽  
Author(s):  
Aditya Suresh
Keyword(s):  
United Nations ◽  
Common Law ◽  
Advisory Council ◽  
Sales Contracts ◽  
Opt Out ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods ◽  
International Sales

Abstract Under Article 8(3) of the United Nations Convention on Contracts for the International Sale of Goods (CISG), parties’ statements, prior negotiations and other external circumstances may be used to assess the presence of subjective or objective intent that can, in turn, be used to interpret contractual terms in international sales contracts governed by the CISG. However, parties to the contract can, through the adoption of an ‘entire agreement’ or ‘merger’ clause, opt out of this rule under Article 8(3) and restrict these interpretative tools in any manner as they see fit, depending on the requirements of their contract. Since the CISG does not explicitly address merger clauses and their effects, the CISG Advisory Council, in its Opinion no. 3, has provided a test to determine how the scope of a merger clause is to be determined. However, this test presents certain conceptual and practical limitations that render it inadequate for use in international commercial contracts. This article aims to analyse this test and the methods that have been used to interpret merger clauses under other uniform legal instruments and cases in common law jurisdictions. On this basis, the article proposes a test that attempts to fully capture the conceptual intent behind including merger clauses while ensuring that the parties are in the driver’s seat while determining their scope and effect.

Reimagining transnational validity under the CISG

2018 ◽  
Vol 17 (3) ◽  
pp. 156-168
Author(s):  
Ndubuisi Nwafor ◽  
Collins Ajibo ◽  
Chidi Lloyd
Keyword(s):  
United Nations ◽  
Design Methodology ◽  
Conceptual Approach ◽  
Content Type ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods ◽  
Analytical Approaches

Purpose The aims and objectives of the United Nations Convention on Contracts for the International Sale of Goods (CISG) have been defeated by the intrusion of domestic laws of different contracting states in the interpretation of the provisions of this Convention. One of the most abused channels of this un-uniform interpretation is through art 4 of the CISG, which excludes the matters of validity and property from the Convention’s jurisdiction. This paper, therefore, aims to critically analyze the dangers of unsystematic reliance on the domestic laws in the interpretation of art 4 of the CISG on matters involving transnational validity and property. Design/methodology/approach The paper will use doctrinal methodology with critical and analytical approaches. The paper will incisively study the doctrines, theories and principles of law associated with validity of commercial contracts and the implications of exclusion of the doctrine of “validity” under the CISG. Findings The findings and contribution to knowledge will be by way of canvassing for a uniform transnational validity doctrine that will streamline and position the CISG to serve as a uniform international commercial convention. Originality/value This paper adopted a conceptual approach. Even though the paper ventilated the views of many writers on the issue of application of the doctrine of validity under the CISG, the paper, however, carved its own niche by making original recommendations on how to create a uniform validity jurisprudence under the CISG.

AVOIDANCE FOR FUNDAMENTAL BREACH OF CONTRACT UNDER THE UN CONVENTION ON THE INTERNATIONAL SALE OF GOODS

2010 ◽  
Vol 59 (4) ◽  
pp. 911-940 ◽  
Author(s):  
Michael Bridge
Keyword(s):  
United Kingdom ◽  
United Nations ◽  
Breach Of Contract ◽  
National Courts ◽  
The United Kingdom ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods

AbstractThis article deals with the avoidance of contracts for non-performance under the United Nations Convention on the International Sale of Goods 1980, which has been adopted by more than 70 States, though not yet by the United Kingdom. It critically analyzes the text of the Convention, and measures the contributions of national courts for fidelity to the text of the Convention and compatibility with the purposes served by that text.

Ch.7 Non-performance, s.4: Damages, Introduction to Section 7.4 of the PICC

2015 ◽  
Author(s):  
McKendrick Ewan
Keyword(s):  
United Nations ◽  
The Other ◽  
Limiting Factor ◽  
Notable Feature ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods ◽  
The Right

Section 7.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) is concerned with remedy of damages. It covers the right to recover damages in the event of non-performance as well as the measure of damages, particularly the use of foreseeability as a limiting factor on the recoverability of damages. A notable feature of Section 7.4 is that the entitlement to recover damages is not linked to any notion of fault, nor to any system of notification of the defaulting party. Instead, the right arises on non-performance by the other party to the contract unless the non-performance is excused. The articles in Section 7.4 build upon, and in places develop, the rules to be found in the United Nations Convention on Contracts for the International Sale of Goods (CISG).

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