CHAPTER 4 Sales Contracts and Excuses for Nonperformance

Introduction to Contracts for the International Sale of Goods Sales contracts are the uniform method of conducting commercial transactions: Set out parties’ rights and duties. Terms and Conditions. Quantity and Price. Choice of Law and Forum.

Law of Sales Body of law which governs contracts for the present or future sale of goods. National differences in Sales Law and Contractual Uncertainty. Unification of Sales Law: UNCITRAL.

Law of Sales: UCC Article 2 American Law: UCC Article 2 governs sales transactions. Art. 2 applies to transaction in goods: Goods are personal property that is tangible and movable. Does not apply to intangibles (patents) or real property. Standardized sales law in 50 states with some individual state variation. UCC has perfect tender rule.

Law of Sales: China Contract Law in China: based on both socialist and western civil law principles. In 1999, China enacted a single comprehensive Contract Law for The People’s Republic of China. Applies to sales, but also electricity, water, loans, construction, transfer of technology, agency, and brokerage agreements.

Convention on Contracts for International Sale of Goods Response- CISG (Convention for the International Sale of Goods) negotiated in 1980 became effective in 1988. Country differences in approach to contract law. CISG a compromise: tries to keep parties in bargain (compare with perfect tender).

Applicability of CISG Commercial sale of goods. Between parties whose places of business are in different countries. The places of business are in countries that have ratified the CISG. Over 70 countries have ratified CISG.

Applicability of CISG Conflict of Laws: Which law applies to the transaction? Choice of law clause. Choice of forum clause. What is the difference?

CISG: Choice of Law Choice of Law: Parties may insert their choice of law in the contract to try to avoid the conflict of laws problem. Case Asante Technologies, Inc. v. PMC-Sierra, Inc. (2001). 

Asante Technologies v. PMC-Sierra Facts: Assante placed order for parts through distributor in California to PMC in Canada. Assante’s order stated that laws of buyer’s address should control. PMC’s confirmation stated that the laws of Canada would apply. Assante filed suit in California state court. Case transferred to Federal court. Assante argued the case belonged in state court in California.

Asante Technologies v. PMC-Sierra Issue: Does the Federal Court have concurrent jurisdiction over this matter? Holding: Yes. The case involves parties from two different countries and thus the CISG applies. The parties’ order and confirmation language was not sufficient to opt out of the CISG.

Sales excluded from CISG Consumer goods. Auction. Stocks. Vessels, aircraft, ships. Preponderant part for labor or services. Death or personal injury. Opt out.

Validity and Enforcement of International Sales Contracts Illegal Contracts: example Tarbert Trading, Ltd. v. Cometals, Inc. (1987) (a contract calling for the delivery of a fraudulent certificate of origin is illegal and contrary to public policy).

Validity and Enforcement of International Sales Contracts Writing requirement: UCC requires contracts for the sale of goods $500 ($5,000 new limit) to be in writing. Many countries do not have this requirement. CISG does not require a writing (but Russia has not included this provision).

Writing UCC: contracts for the sale of goods $500 ( $5,000 new limit) or more must be in writing to be enforceable However, there are many exceptions CISG: need not be in writing ( but Russia has elected writing requirement)

Digital Signatures in E-commerce U.S., Japan, China and the EU have statutes. UN preparing a model electronic signature law.

Problems In Contract Interpretation: Parole Evidence UCC: If contract is final written expression, then parole evidence is not admissible to contradict. CISG: Court may consider all relevant circumstances. MCC Marble Ceramic v. Ceramica Nuova

Customs, Practice, and Trade Usages CISG: limited –to those which parties agree to or past dealings or those usages that the parties ought to have known are observed in trade or industry UCC: Allow past practice and industry practice to fill in the gaps.

Mutual Assent: Offer Intention to Be Bound: “sufficiently definite.” Public Offers: presumption that an advertisement is not an offer unless there is clear evidence of the contrary. Open Price Terms: Both UCC and CISG allow filling in an open price term. Firm Offers: UCC between merchants signed writing or record may not be revoked for 3 months. Under CISG, not revocable even if oral. Pro Forma Invoice.

Mutual Assent: Acceptance Under CISG may accept by sending goods or payment (article 18), if this is accepted in the trade or was a practice with the parties. Generally silence is not acceptance, unless there is an established practice or if that was the terms of the acceptance.

Acceptance: When Effective Common law: acceptance effective upon dispatch. CISG: acceptance is effective when it reaches offeror (Article 16). Thus an acceptance can be withdrawn if it overtakes the acceptance. Case Chateau des Charmes Wines Ltd v. Sabaté (2003). 

Chateau des Charmes v. Sabaté Facts: A oral contract was negotiated for the sale of corks between a French company’s U.S. subsidiary and a Canadian company. They agreed by phone on the quantity, price, payment and shipping terms. An invoice with each shipment stated that disputes would be heard in Perpignan (France). The buyer sued alleging that the wine corks distorted the taste of wine. Chateau argued that they had an oral contract without a forum selection clause.

Chateau des Charmes v. Sabaté Issue: Was the verbal contract binding under the CISG? Holding : Yes. Because the contract was governed by the CISG, the telephone agreement formed the contract. The subsequent confirmation with the forum selection clause did not modify the contract

Battle of the Forms UCC: written confirmation is acceptance even though additional terms unless acceptance is conditional on assent Special rules for merchants: new terms become part of contract unless there is an express limitation CISG:Acceptance containing new terms that do not materially alter become part of the contract unless there is a prompt objection

Battle of the Forms UCC cont’d Or additional terms materially alter or buyer notifies seller of objection CISG cont’d if the terms materially alter then it is rejection of the offer and a counteroffer (not a contract without the new terms) Materiality defined broadly including price, payment, quality, quantity, place and time of delivery, liability

Performance of Contracts Performance of the Seller. Primary responsibility is to deliver conforming goods. Implied Representations. UCC: creates implied warranties on goods. CISG: seller must deliver goods that are of the quantity, quality, and description required by the contract. Goods Fit for a Particular Purpose. See Schmitz-Werke GmbH & Co. v. Rockland Industries, Inc. (2002).

Disclaiming Implied Warranties UCC: seller may disclaim only by conspicuous words “as is” CISG: no limitations

Schmitz-Werke v. Rockland Buyer relied on seller’s representations about the fabric’s fitness for transfer printing. Under CISG article 35(2)(b) the buyer need only show that it relied on the seller’s representations and that the fabric was not fit for transfer printing. The buyer need not prove the exact defect.

Conformance to Laws and Regulation in Buyer’s Country Each country sets technical standards for product design and performance. See the case Medical Marketing International, Inc. v. Internazionale Medico Scientifica, S.R.L. (1999). 

Medical Marketing v. Internazionale Scientifica Facts: MMI planned to distribute mammography machines made in Italy by IMS in the US. The machines did not comply with U.S. law and were seized by U.S. authorities. MMI terminated the contract and the dispute went to arbitration. The arbitration panel found there had been a fundamental breach and the contract could be avoided and awarded damages to MMI.

Medical Marketing v. Internazionale Scientifica Issue: Did the Arbitration panel exceed its authority when it found that the breach was fundamental? Holding: No.

Performance of Buyer, Inspection, and Notice of Nonconformity Buyer must inspect goods within as short as period as possible under the circumstances. Buyer must give notice of nonconformity as soon as practicable. The notice must be specific, and cannot be vague, such as “poor workmanship.”

Remedies for Breach under CISG Avoidance of the contract. Seller’s right to remedy or cure. Seller’s additional time to perform. Price reduction. Money damages. Specific performance.

Remedies for Breach UCC: perfect tender rule CISG: buyer can avoid only if fundamental breach Buyer need not take delivery- avoid the contract Avoidance: cancel contract and notify seller ( must protect goods)

Seller’s Right to Remedy Seller has the right to cure or remedy and the buyer can not avoid until the time for performance expires.

Seller’s Right to Remedy: Nachfrist Period Additional time to perform. If it does not cause “unreasonable delay” or “unreasonable inconvenience.” If seller asks for additional time and the buyer does not respond, the seller may have the additional time. CISG tries to keep parties in their contract.

Right to Avoidance When one party fails to perform the contract is not automatically terminated, the contract or certain provisions, must be “avoided” by one of the parties. Buyer: can avoid and declare fundamental breach. Seller: can avoid if buyer fails to take delivery or pay.

Price Reduction If there is only a partial shipment or goods are nonconforming, buyer may adjust price. May use whether or not breach is fundamental.

Money Damages Article 74 – “sum equal to the loss.” May include consequential damages ( lost profits) if foreseeable. Case Delchi Carrier, SpA v. Rotorex Corp (1994): Plaintiff was awarded compensatory damages and lost profits that can be established by reasonable certainty. The Court will nor award lost profits which are purely speculative.

Specific Performance UCC: limited to special circumstances. CISG: draws from civil law tradition. Specific performance available. Exemption for countries that do not have such a provision under their own law.

Anticipatory Breach Either party may suspend performance after notice of anticipatory breach. Right to Suspend Performance. Right to Avoid for Anticipatory Breach. Avoidance of Installment Contracts.

Events Beyond the Control of the Parties Impossibility: supervening illegality. Frustration of purpose (rare). Commercial impracticability: extreme hardship, difficulty or unreasonable expense or unforeseen events. CISG: impediments beyond control exemption. Force majeure clauses (superior force). Harriscom case 

Harriscom Svenska v. Harris RF( a division of Harris) appointed Harriscom (Swedish) firm to distribute radio products in Iran. The contract had a force majeure clause. The U.S. government prohibited all sales to Iran. RF agreed to voluntarily withdraw from further sales to Iran. Harriscom sued RF for breach of contract.

Harriscom Svenska v. Harris Issue: Does the force majeure clause relieve RF/ Harris from supplying Harriscom? Holding: Yes. The summary judgment for Harris was affirmed. The force majeure clause excused Harris from performance.

Cultural Influence in Contract Negotiation Different styles of the pace of negotiating American style: immediately going into the business matters Other approaches? Japanese?

Summary Contracts: bargain for performance. What are each parties’ responsibilities? Bargain to allocate risk and price accordingly. Contract needs to reflect agreement. Contracts fix price and help to manage risk.