国际商法4PerformanceofContract.ppt

Unit 4 Performance of the ContractThe principles for performance合同履行的基 本原则 n1）fully perform 合同全面履行原则n《合同法》第60条第1款规定：“当事人应当按照约定全面 履行自己的义务” The parties shall perform their obligations thoroughly according to the terms of the contract.n2）good faith 诚实信用的原则 n第2款规定：“当事人应当遵循诚实信用原则，根据合同的 性质、目的和交易习惯履行通知、协助、保密等义务 The parties shall abide by the principle of good faith and perform the obligations of notice, assistance and maintaining confidentiality, etc. based on the character and purpose of the contract or the transaction practices. Obligations of the seller under CISGn1. Delivery of the goods and handing over of documentsn If the contract involves carriage of the goods, the seller needs to hand over the goods to the first carrier;n If no transportation is stated, and the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, a particular place, in placing the goods at the buyer’s disposal at that place, the buyer fulfill his duty of delivery. n In other cases, the seller places the goods at the buyer’s disposal at the place where the seller has his place of business at the time of the conclusion of the contract. n The seller shall hand over documents relating to the goods at the time and place and in the form required by the contract. Obligations of the seller under CISGn2. Conformity of the goods and third party claimsn The seller must deliver goods which are of quantity, quality and description required by the contract or packaged in the manner required by the contract. n3. The 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. n 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 are the time of the conclusion of the contract the seller knew or could not have even unaware. n4. Passing of the TitleObligations of the Buyer under CISGn1. Payment of the pricen The buyer muss pay the price for the goods:n (1) at the place required by the contract; or if no place is specified, n (2) at the seller’s place of business, orn (3) if the payment is to be made against the handing over of the goods or of documents, a the place where the handing over takes place. Obligations of the buyer under CISGnThe buyer’s obligation to take delivery consists:n (1) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; andn (2) in taking over the goods. Passing of risk under CISGna. If the contract of sale involves carriage of the goods and the seller isn't bound t hand them over at a particular place, the risk passed to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. nNevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise. nb. the risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract. But, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller. nc. in other cases, the risk passes to the buyer when he takes over the goods or, if he does not do so in due time, fro the time when the goods are placed at his disposal. Passing of the TitlenUnder Article 133 of China Contract Law, the parties to a contract can agree upon the time of transferring the ownership of the goods. Except as otherwise stipulated by law or agreed upon by the parties, the ownership of goods shall be transferred upon the delivery of the goods.Special rights in performance—— right of defence 抗辩权 n所谓抗辩权，是指用以对抗他人请求权或者否认他人 权利主张的权利。

双务合同履行中的抗辩权，是指在 符合法定条件时，当事人一方对抗对方当事人的履行 请求权，暂时拒绝履行其债务的权利n(1) Simultaneous Performance rejection 同时履行抗辩权n(2) Rejection to perform by the party required to perform later 后履行抗辩权n(3) Right to Suspend Performance by the party required to perform first 先履行抗辩权，亦称不安抗辩权Simultaneous Performance Rejection 同时履行抗 辩权 n Where the parties owe performance toward each other and there is no order of performance, the parties shall perform simultaneously. Prior to performance by the other party, one party is entitled to reject its requirement for performance. n 同时履行抗辩权：是指双务合同的。