1、國際貨物買賣合同中買賣雙方的權利義務CISG第三部分Incoterms2000合同法總則及分則第九章 12/17/20211義務淵源l聯合國國際貨物銷售合同公約lIncoterms2000l合同法總則及分則第九章l當事人約定12/17/20212公約規定的義務l共同義務l保全貨物l通知l賣方的四大義務l買方的兩大義務12/17/20213賣方的義務l交付合同規定的貨物l交付單據（轉移所有權）l貨物相符l權利保證12/17/20214Article 30 lThe seller must deliver the goods, hand over any documents relating to

2、 them and transfer the property in the goods, as required by the contract and this Convention.lSection I. Delivery of the goods and handing over of documents 12/17/202151交貨：deliver the goodsl何為交付：自愿轉移占有形式？l地點l特定地點l涉及運輸，交給第一承運人l不涉及運輸，特定貨物或未特定化貨物，知悉的特定地點l其他情況，賣方訂立合同時的營業地l時間l具體日期一段時期合同訂立后合理時間12/17/2021

3、631（b）l31.If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists:l(b) if, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured o

4、r produced, and at the time of the conclusion of the contract the parties knew knew that the goods were at, or were to be manufactured or produced at, a particular placea particular place-in placing the goods at the buyers disposal at that place; 12/17/20217交貨方式（運輸）l交給承運人l加注貨物標記注明貨物，否則發貨通知l如果安排運輸，必要

5、運輸合同l如果無義務保險，提供保險幫助12/17/2021832(2)l 32(2) If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation.12

6、/17/202192交單l交付單據(轉移所有權)l與國內貿易的最大不同l交貨之外的獨立義務l按合同規定的時間、地點、形式12/17/202110Article 34 lIf the seller is bound to hand over documents If the seller is bound to hand over documents relating to the goods, he must hand them over relating to the goods, he must hand them over at at the time and place and in

7、the formthe time and place and in the form required by the required by the contractcontract. If the seller has handed over documents . If the seller has handed over documents before that time, he may, up to that time, cure any before that time, he may, up to that time, cure any lack of conformity in

8、 the documents, if the exercise lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, inconvenience or unreasonable expense. However, the buyer retai

9、ns any right to claim damages as the buyer retains any right to claim damages as provided for in this Convention. provided for in this Convention. 12/17/2021113貨物相符l四方面l數量（溢短裝）l質量l規格l包裝l如何確定相符l約定標準（相互間的關系）l規格（買方或賣方的規定確定A65）l說明l樣品l公約最低標準12/17/2021123貨物相符（公約標準）l四標準：買方訂約時已知例外（賣方免買方訂約時已知例外（賣方免責）責）l通常使用目

10、的l特定目的l樣品l通常方式包裝12/17/202113貨物檢查l標準機構時間地點l賣方檢驗，結算依據l買方檢驗，最終依據l雙方約定12/17/202114買方通知不符時間l及時檢驗l及時通知不符l過期喪失主張不符權l賣方已知或不可能不知而未告知的，例外12/17/202115貨物不符與風險轉移l貨物不符與途中滅損風險承擔是兩個不同問題l賣方負責期限CISG36l賣方應按照合同和本公約的規定，對風險轉移到買方時所存在的任何不符合同情形，負有責任，即使這種不符合同情形在該時間后方始明顯。l賣方對上一款所述時間后發生的任何不符情形，也應負有責任，如果這種不符合同情形是由于賣方違反他的某項義務所致，

11、包括違反關于在一段時間內貨物將繼續適用于其通常適用的目的或某種特定目的，或將保持某種特定質量或性質的任何保證。l風險轉移時l風險轉移后違約延長期限12/17/202116賣方對貨物不符的責任l買方訂約時知道不符否？l不知，賣方有責l已知，賣方免責l（賣方已知？）l買方收貨后合理通知？l有，則賣方有責l無，則買方失權l賣方已知而沒告知，不能主張買方失權（保護買方）12/17/202117Article 35 一般要求l35(1) The seller must deliver goods which are of the quantity, quality and description req

12、uired by the contract and which are contained or packaged in the manner required by the contract. 12/17/202118四標準l35(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they: l(a) are fit for the purposes for which goods of the same description would

13、ordinarily be used; (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the sellers skill and judgment; (

14、c) possess the qualities of goods which the seller has held out to the buyer as a sample or model; (d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods. 12/17/202119賣方負責的期限l36(1) The seller is liabl

15、e in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time. l(2) The seller is also liable for any lack of conformity which occurs after the time

16、 indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or characteristics. 12/17

17、/20212035（3）賣方因買方已知而免責l35(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.12/17/20212138 買方檢查時間、地點l(

18、1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. l(2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination. l(3) If the goods are redirect

19、ed in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arr

20、ived at the new destination. 12/17/20212239 不符通知l(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. l(2

21、) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contr

22、actual period of guarantee. 12/17/20212340賣方已知缺陷，保護買方lThe seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer.12/17/2021244賣方權利擔保義務與責任l何種權利l何時權利l何地

23、權利l對誰l嚴格12/17/2021254物權擔保l交付的貨物，第三方不能提出任何權利或要求l買方同意例外（賣方免責）l買方及時通知與失權l賣方知或應知權利要求，不能主張買方失權（保護買方）12/17/202126知識產權權利擔保l第三方不得提出知識產權權利或要求l預期轉售地使用地l買方所在地l訂約時賣方已知或不可能不知l買方已知或提供圖樣例外l買方及時通知與失權l賣方已知或應知，不能主張買方失權12/17/202127案例討論l許可方歐洲公司l被許可方中國公司l多條生產線l 合法l 自己組裝l出口美國 被指控侵權l 其他國家？l怎辦12/17/202128Article 41 物權性質的要求

24、lThe seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim. However, if such right or claim is based on industrial property or other intellectual property, the sellers obligation is governed by arti

25、cle 42. 12/17/202129Article 42 賣方對締約時已知IP承責l(1) The seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, pr

26、ovided that the right or claim is based on industrial property or other intellectual property: l(a) under the law of the State where the goods will be resold or otherwise used, if it was contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or other

27、wise used in that State; or (b) in any other case, under the law of the State where the buyer has his place of business. 12/17/202130Article 42 買方已知使賣方免責l(2) The obligation of the seller under the preceding paragraph does not extend tonot extend to cases where: l(a) at the time of the conclusion of

28、the contract the buyer knew or could not have been unaware of the right or claim; or(b) the right or claim results from the sellers compliance with technical drawings, designs, formulae or other such specifications furnished by the buyer. 12/17/20213143買方通知義務與賣方已知l43(1) The buyer loses the right to

29、rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has become aware or ought to have become aware of the right or claim. l(2) The seller is not entitled to rely o

30、n the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it. l44 Notwithstanding the provisions of paragraph (1) of article 39 and paragraph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, exce

31、pt for loss of profit, if he has a reasonable excuse for his failure to give the required notice.12/17/202132買方義務l支付價款l支付準備和實際支付l?賣方未交付貨物,應否付款l接收貨物l接收準備和實際接收l不是接受12/17/202133Article 53l53 The buyer must pay the price for the goods and take delivery of them as required by the contract and this Conven

32、tion.12/17/20213454付款準備l54. The buyers obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulations to enable payment to be made. 12/17/202135付款地點l特定地點l賣方營業地l交貨交單地12/17/20213657付款地點l57(1) If the buyer is

33、not bound to pay the price at any other particular place, he must pay it to the seller: l(a) at the sellers place of business; or (b) if the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place. l(2) The seller must bear any inc

34、rease in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the contract.12/17/202137付款時間l特定時間l貨物或單據交買方控制時l支付可為交付條件l付款可為發運貨物條件l驗貨機會前可不支付l與交貨或支付程序抵觸除外l到期付款，無需催辦12/17/20213858付款時間l(1) If the buyer is not bound to pay the price at any

35、 other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at the buyers disposal in accordance with the contract and this Convention. The seller may make such payment a condition for handing over the goods or documents. l(2) If the contra

36、ct involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer except against payment of the price. l(3) The buyer is not bound to pay the price until he has had an opportunity to exami

37、ne the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity. 12/17/20213955 價格的確定l55. Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the

38、parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned.l56. If the price is fixed according to th

39、e weight of the goods, in case of doubt it is to be determined by the net weight. 12/17/202140收取貨物l采取一切行動，便利賣方交貨lFOB下的租船l接收貨物lFOB下的派船12/17/202141收貨義務l66.The buyers obligation to take delivery consists: l(a) in doing all the acts which could reasonably be expected of him in order to enable the seller

40、 to make delivery; and(b) in taking over the goods.12/17/202142共同義務1保全貨物l保全情形l買方推遲收貨，或貨款同時清結時不付款，賣方控制貨物l買方收到貨物，但打算退貨l買方退貨，代收貨物l保全措施種類l寄放l出售（條件）l合理性費用及補償12/17/202143共同義務2通知l行權通知l宣告合同無效的通知（26條）l通知未能及時到達，不影響通知人的權利（27條）l另外要求的通知（設定義務的通知）l到達生效，如履約寬限期的規定12/17/202144違約類型l根本違約與非根本違約l效果l預期違約與實際違約l時間l根本違約V.預期違

41、約l交叉12/17/202145根本違約的界定及結果l違約后果剝奪受害人預期利益（主觀）l違約方沒有預知（主觀）l第三人無理由預知（客觀）l受害方可宣告合同無效12/17/202146分批交貨與根本違約l批次貨物與合同的關系l批次貨物l前后批次貨物l合同貨物l宣告合同無效12/17/20214725根本違約l25A breach of contract committed by one of the parties is fundamental fundamental lif it results in such detriment to the other party as substant

42、ially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. 12/17/202148預期違約l時間l表現l措施l中止l宣告合同無效l保證12/17/20214971預期違約anticipatory breachl7

43、1.(1) A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of: l(a) a serious deficiency in his ability of perform or in his creditworthiness; or (b

44、) his conduct in preparing to perform or in performing the contract. 12/17/20215071預期違約（續）l(2) If the seller has already dispatched the goods before the grounds described in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds

45、a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller. l(3) A party suspending performance, whether before or after dispatch of the goods, must immediately give notice of the suspension to the other party and m

46、ust continue with performance if the other party provides adequate assurance of his performance.12/17/202151違約責任l責任類型與救濟措施l合同責任與侵權責任l合同前/中/后責任l賠償責任l其他責任（救濟）12/17/202152賠償的原則l普遍適用l非他所能控制的障礙時的免除l高低要求12/17/202153賠償原則l一方當事人違反合同應負的損害賠償額，應與另一方當事人因他違反合同遭受的包括利潤在內的損失額相等。（實際）lsubject to l這種損害賠償不得超過違反合同一方在訂立合同

47、時依照他當時已知或理應知道的事實和情況，對違反合同預料到或理應預料到的可能損失。（預期）12/17/202154存在替代交易時的賠償l如果合同被宣告無效，宣告無效后的合理時間內，買方以合理方式購買替代物，或賣方以合理方式轉售，則要求賠償的一方可以獲得l合同價格與替代交易價格之間的差額l以及據上述賠償的一般原則可以取得的其他損害賠償12/17/202155沒有替代交易時的賠償l如果合同被宣告無效，當事人沒有轉售或購買貨物，而貨物在交付地點又有時價，則要求損害賠償的一方，可以取得合同價與宣告合同無效時的時價之間的差額及據一般賠償原則可取得的其他賠償。l如果買方接收貨物后又宣告合同無效，則適用接收貨

48、物時、交付貨物地的時價，即合同價與接收貨物時的時價之間的差額。12/17/202156有關損害賠償的一些原則l實際與合理預期74l45.2/61.2 not deprived of any right he may have to claim damages by exercising his right to other remedies.l79.5Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention.1

49、2/17/20215774損害賠償的一般原則：實損l74. Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profitincluding loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought

50、to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract. 12/17/20215875解除合同時的損害賠償：差價l75.If the contract is avoided and if, in a reasonable manner and within

51、 a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74.1

52、2/17/20215976解除合同時的損害賠償l76. (1) If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under article 75, recover the difference between the price fixed by the contract and the current price at the time of avoidan

53、ce as well as any further damages recoverable under article 74. If, however, the party claiming damages has avoided the contract after taking over the goods, the current price at the time of such taking over shall be applied instead of the current price at the time of avoidance. 12/17/20216076.(2) c

54、urrent price l(2) For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allow

55、ance for differences in the cost of transporting the goods.12/17/202161賣方違約時的其他救濟形式l實際履行l交付替代物l根本違約及時通知l修理l寬限期l減價l宣告合同無效l多交貨物時的處理12/17/202162買方違約時的其他救濟形式l支付價款l收到貨物l履約寬限期l宣告合同無效12/17/202163減價1l要求減價的適用情況或限制（補救）l減價按實際交付的貨物在交貨時的價值與符合合同的貨物在當時的價值兩者之間的比例計算。l合同價100實際交付的貨價80？12/17/202164減價1比例計算l合同價符合合同的時價l？不

56、符合同的時價l？l合同價不符合同的時價符合合同的時價12/17/202165減價比例lIf the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that co

57、nforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in accordance with article 37 or article 48 or if the buyer refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price. 12/17/2021

58、66宣告合同無效avoidancel含義l效果l條件l限制12/17/202167含義與效果l含義l相當于解除合同l效果l解除雙方合同項下的義務l賠償存在l爭端解決條款依然有效l可恢復原狀12/17/202168買方宣告合同無效的條件l賣方根本違約l未交貨時l寬限期滿不交貨，或l期內聲明不交貨12/17/202169買方宣告無效權利的限制l相關合理期限內未宣告無效l延遲交貨時，知道交貨后l非延遲交貨l知或應知違約l寬限期滿聲明不履約后l補救期滿聲明不接受后12/17/202170賣方宣告合同無效的條件l根本違約l寬限期內不付款或不收貨，或聲明不做12/17/202171賣方宣告合同無效權的限制

59、l買方已經支付價款l遲延履行，知道買方發行義務前l遲延履行外，已知應知后合理期限l寬限期滿聲明不履約后合理期限12/17/20217281宣告合同無效（解除合同）的效果l(1) Avoidance of the contract releases both parties from their obligations under it, subject to any damages which may be due. Avoidance does not affect any provision of the contract for the settlement of disputes or

60、 any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract. 12/17/20217381返還恢復原狀l(2) A party who has performed the contract either wholly or in part claim restitution from the other party of whatever the first party has supp