scholarly journals Defining the Borders of Uniform International Contract Law: The CISG and Remedies for Innocent, Negligent, or Fraudulent Misrepresentation

2017 ◽  
Author(s):  
Ulrich G. Schroeter
Keyword(s):  
United Nations ◽  
Common Law ◽  
Case Law ◽  
Contract Law ◽  
Legal Criterion ◽  
Uniform Law ◽  
United Nations Convention ◽  
Definition Of ◽  
Domestic Law ◽  
Exact Definition

58 Villanova Law Review (2013), 553-587The exact definition of the substantive scope of the United Nations Convention on Contracts für the International Sale of Goods (CISG) of 11 April 1980 is a difficult but necessary task: Necessary because the scope determines over which domestic rules of law the Convention prevails, thereby preempting the concurrent domestic law’s application, and difficult because the CISG itself provides limited guidance about the method through which this definition is to be achieved.This article commences by discussing two approaches used in this regard in case law and legal writings on the Convention: (1) the reliance on Article 4 CISG, and (2) the use of dogmatic categories of domestic law such as "contract" and "tort". Both are found wanting, in particular in light of Article 7(1) CISG calling for an internationally uniform interpretation of the Convention’s scope.Against this background, the article develops a novel two-step approach with Article 7(1) CISG in mind. According to this approach, a domestic law rule is displaced by the Convention if (1) it is triggered by a factual situation which the Convention also applies to (the "factual" criterion), and (2) it pertains to a matter that is also regulated by the Convention (the "legal" criterion). Only if both criteria are cumulatively fulfilled, the domestic law rule concerned overlaps with the Convention’s sphere of application in a way that will generally result in its preemption.In third part of the article, the two-step approach is being applied to remedies for misrepresentation known in Common law jurisdictions, in turn dealing with remedies for innocent misrepresentation, negligent misrepresentation and fraudulent misrepresentation and thus defining their relationship towards the uniform law rules of the Sales Convention.

scholarly journals The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7

IUSTA ◽  
2015 ◽  
Vol 1 (40) ◽  
Author(s):  
Isabel Cristina Salinas Alcaraz
Keyword(s):  
United Nations ◽  
Common Law ◽  
Case Law ◽  
The Common ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods ◽  
International Character

The interpretative methodology applied in Common Law CISG jurisprudence has driven a disparity of reasoning that hinders a uniform application of its provisions. This result is inconsistent with CISG Article 7 which mandates interpretation of the convention in accordance with its international character and the need to promote uniformity. This paper discusses the multiple aspects that have affected the uniform interpretation of CISG norms, including a reference to the case law in USA, Australia and Italy. Finally, the Unidroit principles are presented as an aid to overcome the difficulties in the application of CISG article 7.

scholarly journals Evaluation of New Provisions Regarding Sales and Commercial Sales Amended by New Turkish Code of Obligations the Context of Vienna Convention

2014 ◽  
Author(s):  
Mustafa Topaloğlu
Keyword(s):  
United Nations ◽  
Common Law ◽  
Civil Law ◽  
Vienna Convention ◽  
Sales Contracts ◽  
Swiss Law ◽  
United Nations Convention ◽  
International Sale Of Goods ◽  
Domestic Law

Intendment of the paper herein, to evaluate of new provisions regarding sales and commercial sales amended by new Turkish Code of Obligations numbered 6098 in the context of Vienna Convention on Contracts for the International Sale of Goods which is effective since 01 January 1988. It has a significance to be able to understand why the provisions of the convention have not been completely quoted to Turkish Code of Obligations. Turkish Code of Obligations' numbered 6098, Vienna Convention on Contracts for the International Sale of Goods and Provisions of Vienna Convention on Contract for the International Sale of Goods (CISG/United Nations Convention), Comparing of civil law, common law, and combinations of these (especially Sales contracts in civil law and sales contracts in common law).During the legislation process of Turkish Code of Obligations' provisions regarding sales, both Vienna Convention on Contracts for the International Sale of Goods (CISG/United Nations Convention) and Swiss law has been constituted a source. The Vienna Convention is effective since 01 January 1988 and Turkey has participated to (CISG) on 01 August 2011 and it has been a part of domestic law. The aim of (CISG) is to eliminate the differences among the countries' laws regarding sales; i.e. it constitutes a linking rule and the rules of sales. Since the Convention has been legislated with the effect of various law families and systems, provisions of the convention have not been completely adopted to code of obligations.

scholarly journals The Validity of International Sales Contracts: Irrelevance of the 'Validity Exception' in Article 4 Vienna Sales Convention and a Novel Approach to Determining the Convention's Scope

2017 ◽  
Author(s):  
Ulrich G. Schroeter
Keyword(s):  
Sales Contracts ◽  
Novel Approach ◽  
History Of ◽  
International Publishing ◽  
Legal Criterion ◽  
Uniform Law ◽  
United Nations Convention ◽  
The Hague ◽  
Domestic Law ◽  
International Sales

in: Ingeborg Schwenzer and Lisa Spagnolo (eds.), Boundaries and Intersections: The 5th Annual MAA Schlechtriem CISG Conference, The Hague: Eleven International Publishing (2014), pp. 95-117Throughout the history of uniform law for international sales, the rules governing the validity of cross-border sales contracts have proven particularly difficult to harmonize because they differ greatly between the various domestic laws. This dilemma inter alia resulted in the "validity exception" in Article 4 sentence 2(a) of the United Nations Convention for Contracts for the International Sale of Goods of 11 April 1980 (CISG) being adopted as compromise, a provision that supposedly excludes such matters from the scope of the uniform sales law. The present article attempts to demonstrate that this provision in fact provides little assistance in deciding which validity-related matters are governed by the Convention and which are not, and that the "validity exception" is therefore in truth irrelevant.It continues by outlining a novel two-step approach to determining the CISG's scope with respect to validity issues. According to this approach, a domestic law rule (pertaining to validity matters or other issues) is displaced by the Convention if (1) it is triggered by a factual situation which the Convention also applies to (the "factual" criterion), and (2) it pertains to a matter that is also regulated by the Convention (the "legal" criterion). Only if both criteria are cumulatively fulfilled, the domestic law rule concerned overlaps with the Convention’s sphere of application in a way that will generally result in its preemption.In the last part of the article, three issues that may be viewed as concerning the "validity" of international sales contracts are discussed, each in turn being viewed through the traditional lenses of Article 4 CISG and the alternative two-step approach. These issues are: Mistakes and their effect upon CISG contracts; Consumer rights of withdrawal; The so-called "button solution" under recent e-commerce laws.

scholarly journals The CISG and Common Law Courts: Is There Really a Problem?

2004 ◽  
Vol 35 (3) ◽  
pp. 711
Author(s):  
Henning Lutz
Keyword(s):  
United Nations ◽  
Common Law ◽  
Case Law ◽  
Sources Of Information ◽  
Related Case ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods ◽  
Law Courts

The United Nations Convention on Contracts for the International Sale of Goods (CISG) is generally perceived as a successful example of unified law with 62 contracting states so far. However, this impressive number has not resulted in an evenly-spread acceptance of the CISG worldwide. The scarcity of CISG-related case law from common law countries has led to the assumption that common law jurisdictions have specific issues with the application of the CISG. This article examines the various explanations for this phenomenon that have been put forward so far, primarily through an analysis of case law. The article disproves the contention that common law jurisdictions, when interpreting the CISG, employ a narrow approach, persistently adhere to common law specific concepts, or are generally reluctant to refer to scholarly writings. It emerges that the CISG is a well-known feature in most common law courtrooms, applied by judges with growing skill and prudence. The article concludes that often common law lawyers are more ignorant and unfamiliar with the CISG than judges and appeals to them to improve their knowledge by taking advantage of the numerous sources of information about the CISG.

Should Iran join the United Nations Convention on Contracts for International Sale of Goods?

2021 ◽  
Author(s):  
Ali Moghaddam Abrishami
Keyword(s):  
International Trade ◽  
United Nations ◽  
Legal System ◽  
Contract Law ◽  
Advantages And Disadvantages ◽  
Trading Partners ◽  
Uniform Law ◽  
United Nations Convention ◽  
The United Nations ◽  
International Sale Of Goods

Abstract After 40 years of the United Nations Convention on Contracts for International Sale of Goods (CISG), it is still controversial whether the CISG has been a successful uniform law in practice. It is, nevertheless, evident that the number of ratifications of the CISG has been increasing. This article aims to highlight the important question of whether Iran should implement the CISG. In addition, it argues that irrespective of the possible ratification of the CISG, the Iranian contract law needs to be modernized. In particular, advantages and disadvantages of the possible adoption of the CISG in Iran are explored. This article argues that acceding to the CISG will provide Iran with a number of opportunities, including the promotion of international trade with its trading partners. In proposing a model for the modernization of the Iranian Civil Code (CCI), the author, however, argues that the CISG is not the best option. Instead, the Unidroit Principles of International Commercial Contracts (PICC) is the most appropriate model for reforming the Iranian contract law. This article concludes by suggesting that the combination of the CISG and the PICC is the best way forward for the Iranian legal system.

FORCE MAJEURE, CHANGE OF CIRCUMSTANCES AND TERMINATION OF CONTRACT

2016 ◽  
Vol 3 (1) ◽  
pp. 31-44
Author(s):  
Shiyuan Han
Keyword(s):  
United Nations ◽  
Contract Law ◽  
Unified Model ◽  
The Other ◽  
Final Decision ◽  
Dual Model ◽  
Chinese Law ◽  
Force Majeure ◽  
United Nations Convention ◽  
Distinct Line

It is impossible to draw a distinct line between force majeure and change of circumstances, because the two overlap. In order to regulate both force majeure and change of circumstances, the United Nations Convention on Contracts for the International Sale of Goods (CISG) has adopted a unified model in article 79, whereas Chinese law adopts a dual model by treating them as different things and regulating them in different articles. Where the purpose of a contract becomes impossible to achieve because of a force majeure and both the CISG and Chinese Contract Law (the CCL) adopt the same model of termination of the contract, the contract should be terminated by one party with a notice to the other party instead of ipso facto avoidance. In a case of a change of circumstances, in order to terminate the contract, both the CISG and the CCL actually follow the path of raising an action by a notice of avoidance or termination to theother party. Both approaches have their merits and demerits but the differences between them in practice are not as large as presumed. Where force majeure and change of circumstances overlap each other, possible ways for termination of the contract are for a party either to choose their preferred solution or to follow the lex specialis derogat generali. The latter way is preferred in this article; and while in an action for termination the judge may balance the interests of both parties in making a final decision, the uniform application of the law, the safety of the transaction and the fairness of the judgment may be ensured in so doing.

ON and DP v. Russian Federation

2021 ◽  
Vol 194 ◽  
pp. 463-486
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Russian Federation ◽  
Gender Stereotypes ◽  
Case Law ◽  
Due Diligence ◽  
Lesbian Women ◽  
Content Type ◽  
Rule Application ◽  
United Nations Convention

463Human rights — Women’s rights — Elimination of discrimination against women — Sexual orientation — Exhaustion of domestic remedies — Due diligence obligations — Obligation to investigate — Requirement of prompt and impartial investigation — Protection of lesbian women from violence — Gender stereotypes — Committee case law and general recommendations — Remedies — Whether Russian Federation violating Articles 1, 2 and 5 of United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979International tribunals — Jurisdiction and admissibility — United Nations Committee on the Elimination of Discrimination against Women — Local remedies rule — Application in light of time bar under national law

7. Privity of contract and third party rights

2021 ◽  
pp. 307-358
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Common Law ◽  
Case Law ◽  
Contract Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Subject ◽  
The Common ◽  
Contractual Obligations ◽  
Privity Of Contract

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally, it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.

Principles of Internet contracting: Illuminating the shadows

2019 ◽  
Vol 48 (4) ◽  
pp. 208-232
Author(s):  
Caterina Gardiner
Keyword(s):  
United States ◽  
United Kingdom ◽  
Consumer Protection ◽  
Common Law ◽  
Case Law ◽  
The United States ◽  
Contract Law ◽  
Contract Formation ◽  
The Common ◽  
The Relationship

The common law that applies to Internet contract formation could be said to exist in a penumbra—a grey area of partial illumination between darkness and light—where it may be possible to lose sight of established contract law principles. Internet contracts raise difficult issues relating to their formation that challenge traditional contract doctrine. Analysis of case law from the United States, United Kingdom and Ireland illustrates that the courts have not applied contract formation doctrine in a principled or consistent way. There is a tendency for decisions to be reached for policy reasons, for example, to facilitate the development of e-commerce, or to achieve a result that is considered fair, rather than on sound principles of contract law. There may also be some uncertainty arising from the relationship between statutory consumer protection rules and common law contract formation doctrine. The enforceability of Internet contracts in the common law courts remains unpredictable. This article argues that although Internet contracting may raise distinctive contract formation issues, it is possible for the judiciary to invoke the inherent flexibility of the common law, to take into account the specific characteristics of Internet contracts, while still adhering to established contract law doctrine and maintaining a principled approach.

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