【正文】 Photo: Public domain Image: Pearson Education, Inc publishing as Prentice Hall 169。 2022 109 Mixed Sales ? Seller of goods often furnishes services when delivering a product. ? CISG looks upon mixed sales and service contracts as sales of goods, unless the preponderant part of the obligation” of the seller “consists in the supply of labor or other services.” Pearson Education, Inc publishing as Prentice Hall 169。 2022 1011 Preemption ? If CISG applies to a particular contractual issue, domestic law is preempted. Remedies provided in CISG are the only remedies available. ? Preemption helps to fulfill the goal of the convention to establish uniform rules for international sales contracts. The only permissible remedy for a defective saw is the one provided by CISG when there is an international sale. Photo: public domain Source: working/ Pearson Education, Inc publishing as Prentice Hall 169。 2022 1013 Interpreting CISG: General Principles ? CISG calls for courts to look to the general principles on which the convention is based when interpreting its provisions. ? Two of the suggested principles are: 1. A party to a contract has the duty to municate information needed by the other party, and 2. Parties have the obligation to mitigate damages resulting from a breach. Pearson Education, Inc publishing as Prentice Hall 169。 2022 1015 Negotiations ? When a court is to determine intent, CISG directs that due consideration be given to all relevant circumstances, including: 1. the negotiations leading up to the contract, 2. the practices that the parties have established between themselves, and 3. the parties’ conduct after they agree to the contract. ? CISG does not apply the technical rules that domestic courts use to interpret contracts, such as the parole evidence rule. Pearson Education, Inc publishing as Prentice Hall 169。 2022 1017 Case 102: Treibacher Industrie, . v. Allegheny Technologies, Inc. ? Defendant TDY entered into consignment contracts with Treibacher, then refused shipment when it found a cheaper supplier. ? Court had to interpret, under the CISG, the word consignment. Issue turned on whether that word should be interpreted according to its meaning based on the “course of dealings” or “customary usage in trade.” Court applied course of dealings and awarded $5,327,042. Pearson Education, Inc publishing as Prentice Hall 169。 2022 1019 Formation of the Contract: The Offer ? A contract is formed when an offer to buy or sell a good is accepted. ? An offer is a proposal by one person to another indicating an intention to enter into a contract under specific terms. ? To be a valid offer, the offeror must municate an intention to be bound. ? A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and price. Pearson Education, Inc publishing as Prentice Hall 169。 2022 1021 Acceptance ? A contract es into existence at the time the offer is accepted. ? An acceptance is a statement of conduct by the offeree indicating assent that is municated to the offeror. ? Silence does not constitute acceptance. ? Acceptance must be received within the time period specified in the offer. If no time period is given, acceptance must be received within a reasonable time. ? Acceptance is effective when received by offeror. Pearson Education, Inc publishing as Prentice Hall 169。 2022 1023 Assent by Performance of an Act, Withdrawal, and Rejection ? If the offeror asks for performance of an act rather than the indication of acceptance, the acceptance is effective when the act is performed. ? An offeree may withdraw his/her acceptance any time before or simultaneous with its receipt. ? A rejection bees effective when it reaches the offeror. If the offeree sends both an acceptance and a rejection, the one that reached the offeror first would be given effect. Pearson Education, Inc publishing as Prentice Hall 169。 2022 1025 Case 104: Filanto, SPA v. Chilewich International Corp. ? Chilewich was supplying boots to a Russian pany that were being made by Filanto. ? Chilewich made reference to an arbitration clause in the Russian Contract with Chilewich. ? Filanto failed to object to the incorporation by reference of the Russian Contract in a timely fashion. The arbitration clause bee part of the contract, requiring arbitration in Moscow. Pearson Education, Inc publishing as Prentice Hall 169。 2022 1027 Requests for Specific Per