【文章內(nèi)容簡介】 the conclusion of the contract the buyer knew or could not have been unaware of the right or claim。 or 買方在訂立合同時已知道或不可能不知道此項(xiàng)權(quán)利或要求；或者 (b) the right or claim results from the seller’s pliance with technical drawings, designs, formulae or other such specifications furnished by the buyer. 此項(xiàng)權(quán)利或要求的發(fā)生，是由于賣方要遵照買方所提供的技術(shù)圖樣、圖案、程式 Buyer’s Remedies ?Buyer’s right to pel performance (Article 46) ? Buyer39。s right to avoid the contract (Article 49) ? Remedy of reduction of price (Article 50) ? Take delivery or refuse to take delivery(Article 52) ? Claim damages (Article 7477) Buyer’s right to pel performance ? Article 46: The buyer may require performance by the seller of his obligations ?If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract. ?If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair. Case: specific performance ? Facts: A French pany offered to supply a Chinese pany some primary product: 200T at the unit price of €2,150 per T, valid before Sep. 25th. The Chinese pany accepted the offer on Sep. 20th. However at that time the international market price increased sharply. The seller then refused to deliver the goods. The buyer sued for specific performance. Buyer39。s right to avoid the contract ? Article 49: The buyer may declare the contract avoided: The seller mits a fundamental breach Fundamental Breach ? Article 25: A breach of contract mitted by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract ? 第 25條：一方當(dāng)事人違反合同的結(jié)果，如使另一方當(dāng)事人蒙受損害，以致于實(shí)際上剝奪了他根據(jù)合同規(guī)定有權(quán)期待得到的東西，即為根本違反合同 Case: fundamental breach? ? Facts: A French buyer concluded a contract with a Chinese seller to import frozen turkey to supply its Christmas market. The contract required the turkey be delivered before December 20th. However, the Chinese pany delayed delivery to December 27th. The French pany refused to take delivery and sued to avoid the contract. Remedy of reduction of price ? Article 50: If 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 conforming goods would have had at that time. Remedy of reduction of price ? Price reduction applies to the special situation: The buyer accepts goods The seller must not be responsible for the nonconformity Case: Price Reduction ? Facts: A seller in China agrees to deliver grade corn to a buyer in France for a price of €80,000. While the corn is in transit in a third country, a war breaks out and the ship is detained for 3 months. When the corn arrives in France, it is moldy and graded only as ( corn values €75,000 and values €100,000 at that time.) The buyer is happy to have the corn, even though it is moldy, because the war has interrupted all of its orders. ? Issue: the suitable remedy？ ? Decision: Price reduction. Reduced by how much? Pay how much? ? Price Reduction = Price – Price * (Value of goods as delivered/Value of conforming goods at the time of delivery) Case: Price Reduction ? At the time of delivery, the price for corn (delivered) is €75,000 ? At the time of delivery, the price for corn (conforming) is €100,000 ? The contractual price is €80,000 ? Reduction= €80,000 – €80,000*(€75,000/ €100,000) = €20,000 ? The payment = €80,000 – €20,000 = €60,000 back Take or refuse to take delivery ? Article 52 (1) If the seller delivers the goods before the date fixed, the buyer may take delivery or refuse to take delivery. 如果賣方在規(guī)定的日期前交付貨物，買方可以收取貨物，也可以拒絕收取貨物。 (2) If the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate. 如果賣方交付的貨物數(shù)量大于合同規(guī)定的數(shù)量，買方可以收取也可以拒絕收取多交部分的貨物。如果買方收取多交部分貨物的全部或一部分，他必須按合同價格付款。 Art. 53 of CISG ? Paying the price for the goods(支付價款 ): at the time and place designated in the contract ? Taking delivery of the goods(接收貨物 ): a buyer is obligated to cooperate with the seller to facilitate the transfer and to actually “take over the goods” Article 5465 of CISG ? Details of the obligations 43 2. Major obligations of buyer Paying the price for the goods ? If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the weight. 如果價格是按貨物的重量規(guī)定的，如有疑問，應(yīng)按凈重確定。 ? The buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or pliance with any formality on the part of the seller. 買方必須按合同和本公約規(guī)定的日期或從合同和本公約可以確定的日期支付價款，而無需賣方提出任何要求或辦理任何手續(xù)。 Taking delivery of the goods ? Article 60 The buyer’s obligation to take delivery consists: (a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery。 and (b) in taking over the goods. 買方收取貨物的義務(wù)如下： 采取一切理應(yīng)采取的行動，以期賣方能交付貨物；和接收貨物。 Seller’s Remedies ? Claim damages (Article 61) ?Seller’s right to pel performance (Article 62 63) ? Seller39。s right to avoid the contract (Article 64) ?Seller’s right to interest (Article 78) ? Article 61 (1) If the buyer fails to perform any of his obligations under the contract or this Convention, the selle